Submission
Treasury Taskforce on Industry Self-Regulation

Roger Clarke

Principal, Xamax Consultancy Pty Ltd, Canberra

Visiting Fellow, Department of Computer Science, Australian National University

Submission of 23 November 1999

© Xamax Consultancy Pty Ltd, 1999

This document is at http://www.anu.edu.au/people/Roger.Clarke/EC/SubCons991123.html

23 November 1999

Prof. B. Collier

Chair

Taskforce on Industry Self-Regulation

Consumer Affairs Division

The Treasury

Parkes Place

PARKES ACT 2600

Dear Professor Collier

Re: Submission to the Taskforce

I refer to the call for submissions to your Taskforce, and submit these brief comments.

I am a consultant of long standing, concentrating in recent years on electronic commerce, information infrastructure, and dataveillance and privacy. I held the post of Reader in Information Systems at the A.N.U. between 1984 and 1995, and continue as a Visiting Fellow at that University. I have long been involved with privacy issues, variously as researcher, advocate and consultant. I have also acted on occasions as a consumer advocate, and have provided assistance to corporations and government agencies on such matters.

I draw your attention to an article I published in the leading U.S. information technology journal, Communications of the A.C.M., in February of this year (reference below). It addresses the vacuousness of the U.S. Administration's arguments for its so-called 'safe harbor' proposal. This is the Administration's attempt to avoid comprehensive privacy protection legislation along the lines envisaged by the OECD's 1980 Guidelines, and as required by the EU's 1995 Directive as a pre-condition to the export of personal data from EU member countries.

I have long characterised self-regulation as the herding of the sheep by the wolves. Any benefits to the sheep are incidental. The primary beneficiaries are the wolves, through the lulling of the less aware sheep into a false sense of security, and the avoidance of actual regulation of the behaviour of the wolves, and of the provision of actual protections for the sheep.

The simple facts are that:

• there are tensions between the interests of wolves and those of sheep;
• wolves are individually powerful, and capable of acting as a pack;
• sheep are individually weak, and generally very poor at using collectivism to achieve countervailing power against threats like the wolves.

In such circumstances, Governments have the responsibiity to impose appropriate forms of regulation on the wolves. Please note that the argument is for appropriate regulation, of the kind described by the very sensible term that the present Government used in its platform while most recently in Opposition: 'co-regulation'.

Given that your Taskforce has been formed within the Treasury, and given the Treasury's commitment to de-regulation, and its disinterest in social objectives, it is to be expected that your Taskforce will dismiss arguments of the kind pursued in the referenced paper.

Even if you were disposed to query the worthwhileness of self-regulation, the Terms of Reference written by the Treasury, and accepted by yourself, appear to actually preclude consideration of the question! (Although Term 1 appears to contemplate the possibility that self-regulation might not always be "the most appropriate regulatory response", the remainder of the Terms, including 2(e), are silent on the matter, and simply presume that self-regulation is, quite generally, a 'good thing').

Your Issues Paper is even more blatant, stating on p.11 that "the Tasforce will not be recommending that particular schemes be underpinned by regulation" (emphasis in original). I draw to your attention that you have thereby adopted an untenable position, because much of the recent regulatory literature defines self-regulation as including what I refer to in the referenced article as 'co-regulation'.

Despite the inevitability of the outcomes of your Taskforce, I request that you include in your report mention of the argument that self-regulation (by itself) is an empty vessel, together with reference to at least the paper I've drawn to your attention. It would be disapppointing if your report were written in such a manner that future historians mistakenly concluded that the dominance of the economic rationalist agenda during these decades was complete.

Your sincerely

Roger Clarke

Director

Reference

Clarke R. (1999) 'Internet Privacy Concerns Confirm the Case for Intervention', Commun. ACM, 42, 2 (February 1999) 60-67, at http://www.anu.edu.au/people/Roger.Clarke/DV/CACM99.html

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Created: 23 November 1999

Last Amended: 23 November 1999

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