Abandon All Hope? Foreword for Issue 37(2) of the UNSW Law Journal, on 'Communications Surveillance, Big Data and the Law'

Abstract

The occurrence of ‘communications surveillance’ and ‘big data’ in the title of this issue of the UNSW Law Journal brings privacy issues immediately to mind, but the articles in this issue have a much broader scope than privacy, though it remains as one underlying thread. Issues of discrimination, of automated decision-making, of democracy, and of the public’s right to access information, also thread through these pages. In one form or another ‘big data’ (and not only in its fashionable form as ‘Big Data’) is a common element of all these articles.

This Foreword first introduces the articles in the Issue: Bennett Moses and Chan, on ‘Using Big Data for Legal and Law Enforcement Decisions: Testing the New Tools’; Burdon and Harpur on ‘Re-conceptualising Privacy and Discrimination in an Age of Talent Analytics’; De Zwart, Humphreys and van Dissel on ‘Surveillance, Big Data and Democracy: Lessons for Australia from the US and UK’; Lachmayer and Witzleb’s on ‘The Challenge to Privacy from Ever Increasing State Surveillance: A Comparative Perspective’; and Hardy and Williams on ‘Terrorist, Traitor or Whistleblower? – Offences and Protections in Australia for Disclosing National Security Information’.

A common element in all the essays in this volume is pessimism: little enthusiasm for the promises of ‘Big Data’, and many concerns about its dangers; and shared dismay at the inadequacy of privacy laws to deal with the problems raised by it, or by surveillance practices. The Foreword concludes by asking whether there has been some fundamental discontinuity in surveillance or social practices in recent years, so that we are now living in a society where threats to privacy have passed some ‘tipping point’ and its protection is now impossible? If so, then what change or changes are the root cause of the discontinuity, and when did they occur?

Keywords: communications, surveillance, big data, privacy, data protection