UNIVERSITY OF NEW SOUTH WALES FACULTY OF LAW

LAWS 3037
Data Surveillance and Information Privacy Law

SEMESTER 2, 2005

INTRODUCTORY INFORMATION

(Statement of Objectives and Assessment Strategy)

Subject web pages: <http://www2.austlii.edu.au/privacy/>

Subject Outline, Objectives & Assessment

1. Focus and objectives

1.1. General description

This subject examines information privacy (or 'data protection') law in both the public and private sectors from a number of perspectives, including as part of human rights law, as part of e-commerce infrastructure, and as a response to the use of data surveillance (the techniques of social control through the use of information technology). The pervasiveness of Internet use by business, government and citizens has placed both data surveillance and privacy protection at the centre of the emerging information economy and information society.

Australia now has information privacy laws affecting the whole of the private sector. Similar laws cover the public sectors of the Commonwealth, NSW, Victoria, the Northern Territory and Tasmania. These laws, plus a plethora or other sector-specific laws (credit reporting, telecommunications, health etc) give Australia a comprehensive (but arguably very defective) body of national privacy legislation for the first time.

This subject examines surveillance and privacy principally through the focus of these Australian laws, but also considers their place in an emerging international context of surveillance practices and privacy laws, and the relationship between these statutory provisions and privacy protection by common law and equity.

1.2. Objectives

The objectives of teaching and studying this subject are:

1. To examine the concepts of 'privacy' (particularly 'information privacy' or 'data protection') and 'surveillance' (particularly 'data surveillance') and to attempt to identify the values at issue in laws dealing with these subjects.

2. To introduce the international agreements influencing Australia’s domestic privacy laws.

3. To undertake a reasonably comprehensive and critical survey of the key general laws (statutory and other) that protect information privacy and those that facilitate data surveillance. The emphasis is on the law applying in New South Wales (State, Federal and common law), and those aspects of international law that are relevant.

4. To obtain a more in-depth understanding of the operation of data surveillance and data protection practices and these laws in a selected area of business, government or society, depending on individual interests.

Sectoral Australian privacy laws (medical, credit, telecommunications etc) are not covered in any detail in this course. Nor is there a detailed study of international agreements affecting privacy, though their affect on Australian domestic law is covered. All of these topics will be included in a proposed new course ‘Advanced and Comparative Privacy Law’, for which this course is intended to be a foundation.

1.3. Issues and topics to be covered

The course is based around a detailed examination of Australia's privacy laws, and in particular the substantially similar 'information privacy principles' (IPPs) that are the core of all of these laws. There will be a systematic examination (with international comparisons) of the IPPs dealing with the 'life cycle' of personal information: collection, storage, use, disclosure, individual access, security and destruction. Remedies in common law, equity and administrative law will be considered with their IPP equivalents. The role of Privacy Commissioners, industry codes, Courts and tribunals in enforcing privacy rights will be examined.

A class-by-class outline can be found on the subject web pages at <http://www2.austlii.edu.au/privacy/schedule.html>. The specific topics to be covered may vary from year to year, but are likely to be drawn from the following:

General principles:

What is surveillance? What is privacy?
International development of privacy protection
Privacy protection in the general law (common law, equity etc)
Australian context / history of privacy laws
Collection principles
Surveillance regulation - general principles
Use and disclosure principles
Access, correction and openness principles
Other information privacy principles
Enforcement and implementation of IPPs
Identification, anonymity and pseudonymity

Other topics concerning privacy may be legitimate subjects for research essays, and approval may be obtained (see below).

1.4 Proposed Advanced and Comparative Privacy Law course

A new LLM course is being proposed for 2006: Advanced and Comparative Privacy Law. The proposed new course will examine the operation of these IPPs, and other special laws and codes, in a number of Australian sectors where personal information is particularly important and sensitive: personal finances, telecommunications, the Internet, health information, and the workplace. The sectors to be covered will include (not all may be covered each year):

Cyberspace privacy issues
Telecommunications privacy issues
Financial privacy issues
Health privacy issues
Workplace privacy issues

Second, the course will survey the approaches to privacy protection taken in other countries, and each student will be expected to do a comparative study of one other country’s approach to privacy protection.

Third, there will be a detailed comparative examination of international agreements concerning privacy.

2. Teaching method

2.1. ‘Seminar + internet delivery’ approach

The subject will be taught by a combination of discussion seminars and internet delivery. There is one seminar class each week, plus email discussion in between classes. The email discussion includes compulsory Discussion Problems - see details below under Course Participation assessment. The weekly seminars, and the email discussion, will be based around assigned reading (see Resources below)

The seminars and the e-mail list will be the two mechanism for class interaction each week. The teacher will participate in the e-mail discussion list, equivalent to a teacher’s role in face-to-face class discussions. In addition to Nigel Waters (a co-teacher of this course), other ‘visiting virtual experts’ may also be invited to participate in the email discussions. I will announce their participation by e-mail . At various times during the discussion of a topic, we may intervene to suggest that discussion moves along to some other part of the topic, or to pose additional ‘free for all’ questions - the same types of things as a teacher does in class to keep discussion moving.

Direct consultation with the teacher (ie not via the class list) will be as usual - by e-mail, by telephone, or in person during office consulting hours (see contact details below).

3. Resources (Print and Internet )

3.1. Required materials

The following are the compulsory course materials:

Students will be provided with copies of the key legislation, the Privacy Act 1988 (Cth) (incorporating the Privacy Amendment (Private Sector) Act 2000 ) and the Privacy & Personal Information Protection Act 1998 (NSW). These are the two most important Acts for this course, and students must be familiar with all aspects of them (except any aspects specifically excluded). These will be handed out in class/
The most up-to-date resource for the course is the series of Powerpoints for each topic, linked from the Timetable & Reading Guides page <http://www2.austlii.edu.au/privacy/schedule.html> of the course web pages.
A series of hypertext Reading Guides for each topic linked from the Timetable & Reading Guides page <http://www2.austlii.edu.au/privacy/schedule.html> of the course web pages. Please note that these Reading Guides are not as up-to-date as the Powerpoints, so you must ensure that you check the Powerpoints for recent developments.
Some key journal articles, cases and other documents contained in the printed Course Materials, of which there will be at least Vols 1 & 2. These will be handed out in class.
The emails on the Class Discussion list, which it will be assumed everyone has read.

The Reading Guides and the Powerpoints cover some materials which is not compulsory for this course (eg comparisons to Hong Kong and Victoria, and additional readings). The teacher in class will indicate which reading is compulsory and which reading is optional.

3.2 Australian research resources

Although there are many valuable books on privacy, there is no suitable Australian textbook for this subject. The following are the most useful general Australian references on privacy law:

Privacy Law & Policy Reporter (PLPR), (Call No: LQ/ K1/P766) a monthly Australian journal, is the single source of commentary which will be used most heavily in this subject. Back issues of PLPR are available on the web for free access (see the subject home page). A copy of the print version of PLPR (all volumes) will also be available at the Law Library reserve desk.
The Federal Privacy Handbook (CCH loose-leaf service) - Issued by the Commonwealth Commissioner and includes key Commonwealth legislation and instruments published by the Commissioner.
Privacy Sector Privacy Handbook (CCH loose-leaf service) - included commentary by Tim Dixon on many aspects of privacy law; also valuable for State legislation and codes. The most valuable single source of additional commentary covering most of the topics in the course are the Chapters (Tabs) of commentary by Tim Dixon in this loose-leaf service. References to these Tabs are given in the Timetable, but their use is not compulsory.

The Reading Guides will identify many other internet and print resources which are valuable for each topic. Other important references will be advised via the class email list.

4. Assessment (proposed)

Assessment on the basis of the following components is proposed, subject to discussion in the Introductory Class and on the class email list during the first two weeks of session.

4.1. Research Essay (30%)- Maximum length is 2500 words

Students will choose a research essay topic from a number of designated topics, another agreed topic, or a 'case study' as described below. The maximum word length for the research essay is 2500 words, excluding citations and bibliography, but including any discursive footnotes. The case study option will enable a student to examine in depth the legality, use and effectiveness of data surveillance techniques, and the effects of data protection law, on one area of public administration or commercial practice chosen by them and approved by the subject convener. See the Timetable for due dates

Essays must be handed in, in print form, at the Level 10 desk, or to the teacher in class, by the due date. Essays may not be submitted as e-mail attachments, and if so submitted will be ignored. An exception may be made where students are out of Sydney at the time of submission, but a paper copy will also have to be submitted.

4.2. End-of-Session Take Home Exam (60%) - Maximum length is 3000 words

There will be an End-of-Session Take Home Exam which will be largely problem-based, and will require coverage of the whole subject. Approximately two weeks will be allowed for completion of the Take Home Exam. The maximum word length for the Take-Home Problem will be 3,000 words, excluding citations and bibliography, but including any discursive footnotes. This is a strict word limit - in the same sense as used for the Research Essay. The same rules apply for the form of submission of the Take-Home Problem as apply to submission of the Research Essay.

4.3. Course participation (10%) - In class and by email

Class participation is compulsory, and will be assessed on the basis of participation in discussions in both the seminar classes and the email discussion list. A substantial part of the discussion list participation involves Discussion Questions assigned by the teacher to named students, and participation in tasks assigned to the whole class.

For assessment purposes, the key requirements for satisfactory ‘class participation’ in the email component are the following:

Minimum participation All students must make at least a minimum level of contribution to the e-mail discussion. In addition to the specific contributions required under the next two points, this minimum level of participation consists of sending one brief e-mail (ie 200 words or less) to the discussion list for at least 2 of the topics. The total will therefore amount to somewhere between 500 to 1,000 words of email contribution during the session, which is not an onerous amount per student but is a lot of reading if the class is large.
‘Discussion starters’ and 'responders' All students will be assigned at least one one Discussion Question topic during the session where they are to start the discussion on a particular question by sending a comment of 300 words or less to the list, and at least one topic where they are required to respond to another student’s ‘discussion starter’ by a response of 200 words or less. This will therefore amount to about 500 words during the session. Topics for discussion starters and responders will be assigned in alphabetic order - there will not be any choice. Topics are assigned by an email to the class list. Students will be required to post their 'discussion starters' within a week of the questions becoming available, and to comment within a week of the 'discussion starters' becoming available.
Class group tasks - In some cases the teacher will ask all students in the class to carry out a particular task (eg to comment on a Privacy Policy found on a website). You must participate in most of these group tasks but it is not necessary for you to send a posting to the list on every one of them (eg someone may have already covered the site you intended to cover). Just make a useful contribution to these tasks.
‘Gopher’ question Students may sometimes be allocated a ‘gopher’ question (instead of a Discussion Question), where they are required to find some valuable resources on the web on an particular topic, and to post a brief explanation of each site, giving its URL and explaining its value. There is no 'responder' to a 'gopher' question.
Avoidance of excessive postings All students are of course welcome to participate more frequently than is suggested above, and will be given credit for valuable participation just as in a classroom, subject to two requirements (also similar to classroom requirements): (i) avoidance of unnecessarily lengthy postings; and (ii) avoidance of posting to the list too frequently, so as to dominate discussions. Concise high quality contributions to the discussion are the only form of contribution that will constitute good course participation. Since I expect that all students will read all postings to the list, and these are regarded as compulsory reading for course assessment purposes (including the Take-Home Assignment), it is clearly necessary that there be some limit on the amount of e-mail which any student may submit, otherwise everyone will have an unacceptable reading load. As a rough rule-of-thumb until we become used to the e-mail list interaction, I suggest that two or three postings per week of less than 200 words should be the maximum postings by any one student.
standards of conduct All students must observe appropriate standards of conduct when participating in the class e-mail discussions. Inappropriate behaviour on a class e-mail discussion list which is not conducive to other students’ learning constitutes poor class participation, just as it does in a classroom. You must read the UNSW Rules Relating to Student Use of Computing and Electronic Communications Facilities' at <http://www.infonet.unsw.edu.au/poldoc/rulcomp.htm>. Adherence to these rules is a condition of using this email list, and breaches may have serious consequences

None of these items has any fixed weight in the course participation assessment scheme, and there is no fixed division between email and seminar contributions. An assessment will be made of each student’s overall participation at the end of the subject, from the logs of email during the subject, and the teachers' notes and recollection of seminar contributions. The Hypermail program allows all mail sent to the list during a session to be sorted by author, which is principally how we will identify each student’s email class participation at the end of session.

It is therefore important that you always send mail to the list from only one e-mail address, so that it is easy to identify as having come from you. If this is impossible, include your name in the heading of the message.

4.4. Other assessment information

Citation and other issues of academic standards

The essay and the take-home end-of-session assessment must be documented according to normal academic standards, even though many (often most) of the resources you are likely to cite are found on the world-wide-web. The full URL must be given for all world-wide-web resources cited.

Relationship between objectives and assessment

The objective of requiring a reasonably comprehensive coverage of existing law, and assessing problem-solving skills, is satisfied by the Take Home Problem, whereas the Research Essay allows students to specialise in a topic in which they are particularly interested, and to research, analyse and argue policy questions. Class Participation assessment allows for continuing assessment of analytic skills and course coverage.

5. Relationship to other subjects

There are no other subjects as pre-requisites. See earlier concerning the proposed Advanced and Comparative Privacy Law subject.

7. Plagiarism statement

The following statement is the official UNSW statement on plagiarism. You should read it carefully.

Plagiarism is the presentation of the thoughts or work of another as one’s own.*

Examples include:

direct duplication of the thoughts or work of another, including by copying material, ideas or concepts from a book, article, report or other written document (whether published or unpublished), composition, artwork, design, drawing, circuitry, computer program or software, web site, Internet, other electronic resource, or another person’s assignment without appropriate acknowledgement;
paraphrasing another person’s work with very minor changes keeping the meaning, form and/or progression of ideas of the original;
piecing together sections of the work of others into a new whole;
presenting an assessment item as independent work when it has been produced in whole or part in collusion with other people, for example, another student or a tutor; and,
claiming credit for a proportion a work contributed to a group assessment item that is greater than that actually contributed.†

Submitting an assessment item that has already been submitted for academic credit elsewhere may also be considered plagiarism. Knowingly permitting your work to be copied by another student may also be considered to be plagiarism. An assessment item produced in oral, not written form, or involving live presentation, may similarly contain plagiarised material.

The inclusion of the thoughts or work of another with attribution appropriate to the academic discipline does not amount to plagiarism.

Students are reminded of their Rights and Responsibilities in respect of plagiarism, as set out in the University Undergraduate and Postgraduate Handbooks, and are encouraged to seek advice from academic staff whenever necessary to ensure they avoid plagiarism in all its forms.

The Learning Centre website <www.lc.unsw.edu.au/plagiarism > is the central University online resource for staff and student information on plagiarism and academic honesty. The Learning Centre also provides substantial educational written materials, workshops, and tutorials to aid students, for example, in:

correct referencing practices;
paraphrasing, summarising, essay writing, and time management;
appropriate use of, and attribution for, a range of materials including text, images, formulae and concepts.

Individual assistance is available on request from The Learning Centre.

Students are also reminded that careful time management is an important part of study and one of the identified causes of plagiarism is poor time management. Students should allow sufficient time for research, drafting, and the proper referencing of sources in preparing all assessment items.

* Based on that proposed to the University of Newcastle by the St James Ethics Centre. Used with kind permission from the University of Newcastle.

† Adapted with kind permission from the University of Melbourne.

6. Contacts

Graham Greenleaf, Professor of Law, University of New South Wales
Tel: (02) 9385 2233 (UNSW), (02) 95695310 (Home)
E-mail: g.greenleaf@unsw.edu.au or graham@austlii.edu.au
Web: Personal web pages <http://www2.austlii.edu.au/~graham>
Office: Room 991F, Library Tower, UNSW

22 July 2005