In news surprising no one, tech giants are urging the Australian government against privacy law reform and AI regulation that would get in their way. But what if we stopped framing privacy as an economic bargaining chip?
In a recent inquiry, the Productivity Commission sought input to “unlock the benefits” of new technology and AI. Meta used the opportunity to argue against privacy law changes that would prevent the company from using personal information taken from Facebook and Instagram posts to train its AI. Presumably Meta doesn’t want Australia to follow the EU, which ordered the company to stop teaching its models using user data.
Google called for an “enabling regulatory environment” for AI and warned of compliance costs that come with privacy regulation, arguing that it may create a “compliance moat” benefiting large incumbents but stifling smaller entities — a laughable argument coming from Google given its monopolistic behaviour. Amazon argued that privacy regulations shouldn’t encroach on its ability to do targeted advertising.
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Such a stance is wildly out of step with community expectations on both privacy and AI. More than four in five Australians want the government to do more to protect their privacy. One study found Australians are less optimistic about AI than any other country, with 78% concerned about negative outcomes, while another found 83% think companies should have to seek consent before using personal information to train AI models.
It’s clear that Privacy Commissioner Carly Kind isn’t buying what Meta is selling. In response to the company’s suggestion that her position should give “due regard to innovation and economic interests”, Kind retorted that her role is “to act in the public interest, not in the economic interests of tech companies”.
Unfortunately, this doesn’t reflect Australia’s long-held approach to privacy as an economic bargaining chip. The most recent attempt to reform the nation’s woefully outdated Privacy Act came from a desire to enhance competition objectives. That is, off the back of the ACCC’s Digital Platforms Inquiry, a core premise of which framed privacy law as important because it encourages competition and innovation.
Many privacy advocates are being forced to capitulate to an economic cost-benefit analysis of potential privacy protections. Such a process says nothing of the intrinsic value of privacy as a human right. Nor does it take seriously the individual and collective harm and power imbalance caused by data-extractive business models. Instead, it frames privacy in market terms where its value is only recognised if the line on a profit graph marches relentlessly up. When we argue on these terms, we lose.
The economic factors aren’t irrelevant, but this equation is failing us. If the pathway to ruthless growth relies upon uninhibited data accumulation and commodification, people’s right to privacy becomes collateral damage. Meaningful privacy law should throw a spanner in the business models of these companies in favour of the public interest. Otherwise, what’s the point?
Other giants like Bunnings and Woolworths also took issue with privacy protections deemed disruptive. Woolworths noted privacy reform “could pose unnecessary challenges in how we serve our customers”. This is unsurprising, given that supermarkets are a hotbed for surveillance and control. Meanwhile Bunnings called for regulation that would enable it to use facial-recognition technology, reiterating its disagreement with the Privacy Commissioner that it breached Australians’ privacy by using facial recognition in its stores.
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Notably, both Woolworths and Bunnings have previously come under fire for using a privacy-invasive tool that claims to predict crime before it happens.
Then there’s the privacy theatre. Many of these companies take pains to express — in their submissions and in general — how they care very much about privacy, actually. But just as it is telling what they argue against, what they support is also revealing. Make no mistake, they aren’t readily acceding to privacy reform that would substantially chip away at their power or profit.
One example is the utter co-option of the notice-consent model. The idea goes that with enough information, people can make informed choices about their data. This doesn’t work: people don’t read privacy policies, and even if they did, they don’t have any real bargaining power. Companies also employ dark patterns to manipulate their users. This paradigm has led to unending terms, conditions and cookie banners that are both annoying and do little to improve data practices.
So when the likes of Meta and Amazon reiterate a commitment to transparency to empower their users — spare us.
In response to Meta, Attorney-General Michelle Rowland chimed in, saying Labor will not be “dictated to by multinational tech companies”. This would hold more weight if the government, over the past five years, had seriously acted on the swath of robust privacy reform proposals that would have genuinely ruffled Big Tech’s feathers.
Instead, it grabbed the low-hanging fruit and kicked the meaningful changes down the road in a promise of “tranche two” reforms. Being seen to take on Big Tech is politically popular, but if the government really wants Australians to believe it takes our privacy seriously, it’s going to need to prove it.