State could be a ‘model’ for technology’ without sacrificing rights

There is an opportunity for Ireland to be seen as a model of a country that can embrace advanced technology without sacrificing rights guaranteed by our Constitution and by European Law, Data Protection Commissioner Billy Hawkes has said.

Mr Hawkes said effective data protection in the digital age was “a challenge, but not an impossible one”.

He was addressing the Institute of International and European Affairs in Dublin yesterday (Mon).

The commissioner said the challenge involved individuals making a greater effort to understand what was happening to their personal data so they could exercise greater control.

“For organisations - whether public or private - it involves a much greater effort to meet the privacy expectations of individuals, ideally using privacy as a competitive selling point.”

Mr Hawkes said that for the European Union, the current legislative process to produce a new, harmonised data protection regulation offered an opportunity to align legal requirements both with the expectations of individuals and the "borderless realities of the digital age".

“Privacy is not dead - it just needs nurturing,” he said.

Mr Hawkes also addressed the revelations about the extent of access by US and European intelligence agencies to personal data held by major internet and telecommunications companies.

“The revelations have provoked a long-overdue debate on the proper balance in a democratic society between the protection of personal data and the obligation of governments to take measures against those who would use these services to further criminal objectives,” he said.

The issue had also led to a re-examination of data flows between the European Union and the United States.

Mr Hawkes said the resulting debate had thrown a “welcome spotlight” on the general issue of state access to personal data.

A recent decision by the European Court of Justice to invalidate the data retention directive had “clearly set out the need for proportionality in this area”.

The commissioner said this judgment had also shown the importance of challenging "privacy-destroying measures", as had been done in this case by a non-governmental organisation, Digital Rights Ireland, supported by the Irish Human Rights Commission.

That EU judgment had sigificance “beyond that of data retention”.

His own office’s audits of State organisations had, in too many cases, shown “insufficient regard by senior management to their duty to safeguard the personal data entrusted to them - a duty that is all the greater because of the legal obligation to provide such personal data to the State”.

Mr Hawkes, who retires next month, said he had often felt he was “fighting a losing battle in stressing the need for proportionality in this area”.

He highlighted a case reported today in The Irish Times where the Department of Arts, Heritage and the Gaeltacht was last weekend forced to remove certain civic registration records from a genealogy site as an example of how a State body had not taken into account the privacy implications of a project.

The commissioner also said, however, we should not “over-state the negative in relation to technology”.

“Looking back over my period in office, it is amazing how the digital age has made all our lives easier.”

He said data protection law could not be so prescriptive as to resolve every issue. “There is, and always will be, inevitable tension between the right to privacy and other rights.”

We needed to be realistic on the “global nature of digital data flows”, he added..

“Focusing on the strict accountability of an organisation to safeguard personal data wherever it flows globally is more likely to protect this data than largely futile attempts to restrict such flows at national borders,” he said.

“However, there needs to be a new understanding on the proper limits to State access to such data if such global data flows are to continue.”

He said he expected his successor to face “significant” challenges. On the domestic front, continued vigilance about the encroachment of the State into the private lives of individuals would be necessary.

And effective oversight of multinational companies, carried out as it is “under an international spotlight” would remain “an essential aspect of the ‘Ireland Inc’ proposition”.