Privacy law is blind to how information is collected. It basically doesn’t matter how Personal Information comes to be in the possession of an organisation; even if Personal Information is generated internally from audit logs, traditional evaluative processes or the newer Big Data wizardry, once you have it, you are deemed to have collected it according to privacy law and as such, you are accountable for it. Moreover, even if Personal Information is collected from the public domain, it may still be subject to privacy law.In that respect, I like to point out the little known crime on many statute books of “Theft By Finding”. In some jurisdictions, if you lose something valuable, you do not lose ownership. In Australia for instance, if I accidentally drop a thousand dollars and someone picks it up, then it is still my money. There have been prosecutions of people who find valuables and fail to hand them in to police. Likewise, from a legal point of view, if my valuable Personal Information is accessible “in public” it does not automatically follow that anyone else is free to pick it up and use it without my permission.Technologists may find many laws counter-intuitive, but you know what they say about ignorance of the law being no excuse.[Update Feb 2013: A couple of more recent cases have highlighted also the difference between anonymity/secrecy and privacy. In many places and especially Europe, privacy is is much less about keeping all information secret than constraining how Personal Information is used and granting people some control over it. Therefore when anonymity is occasionally lost, individuals still have rights and legal recourse should their information be abused. The best example is that European regulators found Facebook’s facial recognition processes to breach the Collection Limitation principle and had Facebook shut it down. The lesson is: big data processes or biometrics may give technologists fabulous powers to re-identify anonymous or ‘public’ data but those powers cannot be used willy-nilly. Another potential test case is that of the ‘DNA hacking’ reported in early 2013 where bioinformaticians cleverly used genealogical data from public websites to re-identify anonymous DNA donors. And then we have Google Glass which will inevitably generate boundless identification of people and objects captured on video in your daily walk through life. “Boundless” that is if Google disregards the Collection principle. See also my recent post “The beginning of privacy”. ]
Southern Poverty Law Center
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