Judge on privacy: Computer code trumps the law

Technology has outpaced legal system's ability to regulate its use in issues of privacy and fair use rights, says Australian High Court judge.

Australian High Court Judge Justice Kirby says computer code is more potent than the law--and that legislators are powerless to do anything about it.

Technology has outpaced the legal system's ability to regulate its use in matters of privacy and fair use rights, said Kirby, speaking Thursday night at an Internet Industry Association (IIA) event.

Kirby said the judicial system has faced difficulties in coping with changes the Internet and computing have brought.

While the soon-to-be-reviewed Privacy Act has incorporated key privacy principles such as "usage limitation"--which states that data collected about an individual cannot be used for other purposes, except by the approval of the law or the person's consent--Google and Yahoo have rendered that principle defunct, Kirby said.

"It was a good moral and ethical principle to keep people's control over the usage that was made of the information...And then along came Google and Yahoo," said Kirby.

"And when the new technology came, there was a massive capacity to range through vast amounts of information. The notion that you could control this was a conundrum," he said, adding that because the technology is considered so useful, privacy concerns have been cast aside.

The challenges that technology present continue to beat even the best legal minds in the world, Kirby said.

Despite this, lawmakers should attempt to implement checks and balances. Without them, corporations pose an even graver problem for humanity.

"To do nothing is to make a decision to let others go and take technology where they will. There are even more acute questions arising in biotechnology and informatics, such as the hybridization of the human species and other species. Points of no return can be reached," he said.

However, technology has already allowed corporations to beat the legal system, said Kirby, citing the case Sony brought against Australian businessman, Eddy Stevens, in 2005 for modifying Sony PlayStations.

Despite the High Court ruling in favor of Stevens, the decision was later overturned by the government after the U.S. government pressed it to make legislative amendments to protect Sony's right to restrict where consumers buy its software from.

"We are moving to a point in the world where more and more law will be expressed in its effective way, not in terms of statutes solidly enacted by the parliament...but in the technology itself--code," said Kirby.

Liam Tung of ZDNet Australia reported from Sydney.

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