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The Limits of (Digital) Constitutionalism: Exploring the Privacy-Security (Im)Balance in Australia

(2018) International Communication Gazette (Forthcoming)

28 Pages Posted: 22 Aug 2017 Last revised: 10 Oct 2017

Monique Mann

Queensland University of Technology - Faculty of Law

Angela Daly

Queensland University of Technology - Faculty of Law; Swinburne University of Technology; Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Michael Wilson

Queensland University of Technology - Faculty of Law

Nicolas Suzor

Queensland University of Technology - Faculty of Law

Date Written: August 18, 2017

Abstract

This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to ‘Internet freedom’ norms, including privacy, through membership of the Freedom Online Coalition. Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without constitutional human rights or a legislated bill of rights at the federal level; this means that the task of ‘balancing’ what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom of Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism’s norms.

Keywords: privacy, security, securitisation, cyber security, online surveillance, metadata retention, human rights, digital constitutionalism

JEL Classification: K00, K10, Z18

Suggested Citation

Mann, Monique and Daly, Angela and Wilson, Michael and Suzor, Nicolas, The Limits of (Digital) Constitutionalism: Exploring the Privacy-Security (Im)Balance in Australia (August 18, 2017). (2018) International Communication Gazette (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3021580

Monique Mann

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Angela Daly (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Swinburne University of Technology ( email )

Cnr Wakefield and William Streets, Hawthorn Victor
3122 Victoria, Victoria 3122
Australia

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Michael Wilson

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

Nicolas Suzor

Queensland University of Technology - Faculty of Law ( email )

GPO Box 2434
Brisbane, Queensland 4001
Australia

HOME PAGE: http://nic.suzor.net/

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