Taming the Electronic Genie: Can Law Regulate the Use of Public and Private Surveillance?

The fear that our social and legal institutions are being subtly but inexorably eroded by the growth in surveillance is as common in academic literature as it is in the popular imagination. While large corporations harness the powers of Big Data for the wholesale harvesting of personal data, the government utilises its coercive powers to conduct increasingly intrusive surveillance of members of the public. The article considers the major issues arising from private surveillance, particularly the breaches of privacy inherent in the collection or harvesting of personal information. It then analyses selected issues arising from public surveillance, including data retention and sharing by government, the use of surveillance techniques such as facial recognition technology in criminal investigation, and the evocation of national security concerns to justify invasions of privacy. It considers what legal regime is best suited to regulate mass public and private surveillance, including the tort of privacy, the adoption of international regimes, such as the General Data Protection Regulation, and the expansion of fiduciary principles. We argue that the concept of ‘information fiduciary’ should be added to the current range of measures designed to ensure the accountability of both public and private data collectors.