INTRODUCTION
2.1 It has been suggested that individuals generally have the following reasonable privacy expectations in their daily life:
1. that they will not deliberately be observed or overheard;
2. that their communications will not be intercepted, read or recorded deliberately; and
3. that their personal, professional or business data will not be examined, copied or recorded deliberately.1
In fact all of these events occur on a regular basis, legally and illegally, for a variety of purposes. The rapid development, availability and relative cheapness of new technology, for example, sophisticated listening devices and cameras capable of recording distant images, have made such intrusions into peoples’ private affairs easier. Surveillance appears to be becoming increasingly popular, not only with law enforcement agencies and private investigators but with commercial enterprises. Additionally, the same surveillance techniques are used for criminal enterprises.
2.2 The purpose of legal regulation in this area is to prohibit some intrusions and regulate others, taking into account public interests including the expectations outlined above. Legal regulation will have limited effect in deterring criminal uses of surveillance, except through the provision of high penalties for illegal use, restrictions on the sale of some items and substantial emphasis on enforcement in this area.
TYPES OF SURVEILLANCE
2.3 Surveillance involves monitoring the movements or affairs of a person or persons. The most common types are aural or visual surveillance (or a combination of both), using a range of surveillance devices, though some types of surveillance cannot be categorised as either aural or visual. The different types of surveillance considered by this reference are discussed at paras 2.4-2.8. For the purposes of this reference, the Commission has also drawn a distinction between covert (or concealed) surveillance and overt (or open) surveillance. Legislation does not typically use these terms, but it is usually clear from the context which type of surveillance is under consideration. Covert surveillance is carried out without notice to the subject by concealed devices. Overt surveillance is carried out in such a way that the subjects of the surveillance are aware that devices are being used in their general proximity, even if they are not aware when the device is pointed directly at them at a particular time. The policy issues behind both types of surveillance are different, though the technology used may be identical. It must be acknowledged, however, that the distinction between the two types of surveillance is not always clear - for example, surveillance which is ostensibly overt may be used later for purposes which are not disclosed to, nor anticipated by, the targets. Though both overt or covert surveillance may be carried out by anyone, their most common uses are discussed at paras 2.9-2.13. Surveillance may also be carried out by a person, for example a police officer, without the aid of any equipment. This is not of concern for this reference. Rather it is the use of increasingly sophisticated technology to undertake surveillance to which our inquiries are addressed. The law can do little to prevent people from using their eyes and ears, but the intrusions which occur in this way are more limited and can be more easily minimised by the targets.
Aural surveillance
2.4 Aural surveillance, colloquially known as “bugging”, involves use of a listening device to overhear or record a private conversation. Such surveillance is governed in New South Wales by the Listening Devices Act 1984 (“LDA”). Under the LDA, “listening device” means:
any instrument, apparatus, equipment or device capable of being used to record or listen to a private conversation simultaneously with its taking place.2
The operation of the LDA is considered in detail in Chapter 5. As discussed in Chapter 3, the LDA does not cover the interception of signals passing over the telecommunications netweork, as this is governed by federal legislation. It only covers the recording of conversations once those signals become words.
Visual surveillance
2.5 Visual surveillance involves observation of a target, primarily through cameras, video cameras or closed circuit television (“CCTV”). There is currently no legislation to govern either covert or overt visual surveillance, unless the equipment can also be characterised as a listening device under the LDA. Nor is there any general legal rule to prevent the use of a camera to film a person or private property, if no trespass is involved.3 This lack of regulation does not mean that there is complete freedom in using the technology. For example, the New South Wales Police Service commented that it believes that a warrant authorising installation and use of a listening device does not also authorise the entry onto premises and installation of a visual surveillance device.4
Other types of surveillance
Audio-visual surveillance
2.6 In many ways the distinction between aural and visual surveillance is artificial. For example, a lip reading expert would be able, in some cases, to ascertain from a video the words spoken by a target without using a listening device, revealing the possible blurring of the line between the two types of surveillance. Additionally, many devices can record both sound and pictures simultaneously. The video element in an audio-visual device does provide important advantages. For example, it allows the speaker to be more readily identified where there are a number of speakers. It also reveals the hand gestures and facial expressions which may accompany, and clarify, speech. See also para 5.6 below.
Tracking devices
2.7 Tracking devices can be installed in vehicles, on persons, or attached to movable objects such as containers. Through the monitoring of signals released by the device, the position of the relevant recipient can be monitored centrally. This has obvious surveillance and safety advantages, as the devices are less labour intensive than visual surveillance devices and allow operations to be monitored from great distances. Tracking devices may fall within the definition of listening device under the LDA, for example if it can also record conversations. However the lack of specific provisions for tracking devices in the LDA may cause difficulties for law enforcement agencies, particularly in respect of installation. For example, installing a device in a motor vehicle may be a trespass unless the owner of the vehicle has consented, so that any evidence gained may be challenged as illegally obtained.5 This suggests that there may be a need to regulate tracking devices.
Computer surveillance
2.8 Computer surveillance can involve accessing or “reading” the storage mechanism of a suspect’s computer, or monitoring a person’s operation of a computer.6 Although there is scope for overlap with the Telecommunications (Interception) Act 1979 (Cth) in the area of computer surveillance, the surveillance of information on individual computers which is not received by telephone lines through a modem, or of networks which do not rely on telephone lines to exchange information, can only be regulated by State law. The LDA does not appear to extend to this type of surveillance technology (see Chapter 5), though there are “anti-hacking” computer offences at both the State and Federal level.7
USES OF SURVEILLANCE
Covert surveillance
Law enforcement
2.9 The primary, and most accepted, use of covert surveillance is for law enforcement purposes. The Commission is aware that covert surveillance is carried out in New South Wales by such agencies as the police, the Crime Commission, ICAC and the recently completed Police Royal Commission, as well as by federal agencies such as ASIO, the Australian Federal Police and the National Crime Authority. In addition to the use of listening devices (see Chapter 5), the police have used cameras in licensed premises to enforce liquor licensing laws,8 and computer surveillance is valuable in the investigation of fraud offences or in monitoring some paedophilia offences.9
Private investigators
2.10 Private investigators carry out surveillance for their clients. Common areas for the use of such surveillance are in cases of matrimonial disputes and alleged insurance or workers compensation fraud. For example, private investigators regularly follow and film personal injuries claimants to attempt to gather evidence proving that their injuries are not genuine or are not of the level of disability claimed. Some concern has been expressed that a large amount of covert surveillance is carried out by private investigators outside the operation of the law, involving trespass to land or property or the use of listening devices without warrants.
Media
2.11 Covert surveillance is also used by the media - the most notorious examples being the media scrutiny of the British royal family and other celebrities. Most popular are long distance camera lenses, which allow visual access into private property without trespass, and hidden cameras.
Workplace
2.12 Employers are using surveillance technology to protect their premises and merchandise from theft or damage and also to monitor the actions or performance of their staff. This area has recently been the subject of attention in New South Wales and is therefore discussed separately in Chapter 6.
Overt surveillance
2.13 Not all surveillance is covert. More and more businesses and public areas are monitored by surveillance devices, usually CCTV or fixed cameras. Generally the use of such cameras is notified through signs. Autobanks, for example, will often be labelled with words to the effect of “Warning: you may be photographed while using this machine”. In New South Wales CCTV has been used recently to prevent and detect crime in certain notorious areas, such as the cinema district near Sydney’s Town Hall or Bondi Beach on New Year’s Eve, and the effectiveness of such methods is under scrutiny. Currently there is no regulation of such usage. (See Chapter 4.) Additionally, tracking devices are not only used covertly by law enforcement agencies, but also by organisations which monitor the positions of their vehicles, such as taxi companies.10
POLICY ISSUES
Arguments against surveillance
2.14 The primary argument against surveillance is that it infringes other important interests, in particular, those in the area of privacy.
Privacy considerations
2.15 Australians are concerned about the intrusion of surveillance. For example, a survey conducted by Mastercard, Privacy and Payments, found that 44% of Australians surveyed were “very concerned” about people video taping their movements in public places, whereas 25% were “not at all concerned”. In relation to aural surveillance, 77% were “very concerned” about telephone bugging, while only 10% were “not at all concerned”.11
2.16 Many reports have devoted considerable efforts to the difficult task of defining privacy, for example, Judge Cooley’s famous 1888 American definition, the right “to be let alone”12 and the Australian Law Reform Commission’s description of privacy as “used to describe a genus of interests for which there is strong claim to protection”.13 The Commonwealth Privacy Act 1988 defines privacy indirectly by setting out what practices are to be considered interferences with privacy.14 In essence, privacy involves keeping oneself and one’s affairs removed from public view or knowledge, even if the information so protected is itself not intrinsically sensitive. It has been argued that the interest in freedom from surveillance is a privacy interest.
2.17 There is no common law right to privacy in Australia, though privacy may incidentally be protected by the laws of defamation and trespass. Additionally, the Commonwealth Privacy Act 1988 provides some protection from invasions of privacy by Commonwealth government agencies by regulating the handling of personal information collected by them. This Act also regulates the use of tax file numbers and information collected by private credit reporting agencies. There is not yet any parallel New South Wales legislation, though a number of Bills have been introduced in recent years15 and the Attorney General had announced that privacy and information protection legislation will be introduced in New South Wales.16 However, there is no necessary connection between surveillance and the collection of information. As surveillance is considered intrusive in itself, regardless of any information-collecting purpose, mere regulation of the use of information obtained by surveillance is likely to be considered insufficient protection of privacy.
Other considerations
2.18 Surveillance raises other concerns apart from privacy. The surveillance may involve trespass, for example, entry onto private property for the purpose of installing a surveillance device, or the effective theft of electricity to power the device. It may also involve damage to private property, at installation or retrieval of the device, or use of the device may hamper the effective operation of its host device, for example a computer. Additionally, surveillance can infringe other private rights, for example, video images of a celebrity wedding may breach an agreement to provide the exclusive rights to the coverage of the event to a third party.
Justification for surveillance
Law enforcement
2.19 Traditionally, the most common justification for surveillance is in relation to law enforcement purposes. Surveillance is a particularly effective crime detection tool, especially as the recording can be used in evidence in criminal trials. The issue of illegally obtained evidence or its admissibility in the court room,17 however, will only be discussed briefly in this Paper.18 Surveillance devices, particularly listening devices, meet needs other investigative techniques cannot. For example, the New South Wales Crime Commission argued:
Over the years of its operation, the Commission has found that listening devices are an effective method of gathering evidence in the investigation of drug crime. Evidence of drug transactions can be difficult to obtain because typically transactions are conducted covertly, so that visual surveillance is not possible or at least difficult, offenders work in familiar groups and are extremely wary of infiltration by undercover officers or police agents, and they employ counter surveillance techniques and communicate by means of digital telephones which cannot be intercepted.19
2.20 The argument for surveillance as a crime prevention tool is less strong. It is argued that the use of video cameras in public places will deter crime and enable speedy intervention if a crime is observed. However, as Chapter 4 discusses, the effectiveness of such systems is a matter for debate, especially as much depends on the level of resources backing up the visual surveillance and the possible response time. There is also an argument that such surveillance merely moves crime from one place to another, rather than prevents it.20
Public safety and efficiency
2.21 Surveillance can also be a useful tool in the area of public safety and efficiency. For example, the Roads and Traffic Authority uses various forms of surveillance to ensure the smooth flow of traffic. It is also used for public safety purposes, particularly where large crowds are involved and individual policing may be less effective. Most people will accept some form of surveillance, for example at major sporting events, in exchange for a greater feeling of safety. More controversially, it is also argued that surveillance, particularly visual, can be used to monitor or control “undesirable” (rather than criminal) behaviour in certain designated public places.
Employer interests
2.22 Surveillance is used by employers to monitor both staff and customers, primarily to detect stealing and fraud. It may be covert or overt. Employers argue that they have a right to protect their own property, or, more indirectly, to supervise their employees. However the countervailing privacy interests of people, such as not being photographed without consent, must also be recognised. Many laws limit employers’ rights in relation to practices on their own property and surveillance laws should be considered in this light. The use of covert surveillance as a supervision tool or to assess job performance may be an infringement of workers’ rights.
Protection of private property
2.23 The desire to protect private property leads many home owners or businesses to use security companies to provide a variety of forms of surveillance. Surveillance may include patrols by security guards and the use of fixed cameras. Few would argue that such surveillance is improper, especially in circumstances where any person caught by such surveillance would be a trespasser. The arguments are less clear when the surveillance occurs over non-trespassers and where there is no warning about the use of such devices.
Conclusions: the policy issues
2.24 There are arguably legitimate uses for surveillance. However, acceptance of the benefits of surveillance does not mean that the area should not be regulated nor that all forms of surveillance are equally acceptable for all purposes. Additionally, the general public may be prepared to trade certain privacy interests for other benefits, such as the detection of criminals and greater personal security. Thus the regulation of surveillance becomes a delicate balancing act. For example, people may be comforted by the fact that certain potentially dangerous public places are under surveillance, such as a long pedestrian subway leading to a railway station where muggings have been a common occurrence, but concerned about the potential misuse of information gained through such surveillance. Different rules may be appropriate for surveillance in public or private places, or for “targeted” surveillance as compared to general routine surveillance. The Privacy Committee of New South Wales, for example, argues that routine visual surveillance in public places:
... should only be permitted when it can be demonstrated clearly that the benefit to the community outweighs to a substantial degree other competing social interests and individual rights. Whenever possible, priority should be given to preserving the rights and freedoms of the citizens of this state, including the right to be free from unwarranted surveillance by government and law enforcement agencies when visiting public places.21
2.25 Blanket prohibitions of surveillance in some circumstances, however, present difficulties, because the general community may accept even quite extreme invasions of privacy for security reasons. For example, hidden video cameras in toilets and change rooms are generally seen as unacceptable, but there may be occasions, for example, following a series of bombs placed in toilets, where the community would accept such an intrusion.
2.26 All surveillance is likely to constitute a severe invasion of privacy. While at times surveillance may be justified, there are arguments that restraints are required. The remainder of this Issues Paper discusses possible types of restraint.
FOOTNOTES
1. Law Reform Commission of Hong Kong Report on Privacy: Regulating the Interception of Communications (December 1996) at para 53.
2. Listening Devices Act 1984 (NSW) (“LDA”) s 3(1).
3. Bathurst City Council v Saban (1985) 2 NSWLR 704. See 707-8 for the limited restrictions on taking/using such film.
4. New South Wales Police Service Submission (13 December 1996) at 1.
5. New South Wales Police Service Submission (13 December 1996) at 2.
6. New South Wales Police Service Submission (13 December 1996) at 2.
7. Crimes Act 1900 (NSW), Part 6, s 308-310; and Crimes Act 1914 (Cth), Part VIA.
8. Privacy Committee of New South Wales Submission (9 January 1997).
9. New South Wales Police Service Submission (13 December 1996) at 2.
10. New South Wales Crime Commission Submission (October 1995, provided to the New South Wales Law Reform Commission by letter dated 16 September 1996) at 17-18.
11. Mastercard International Privacy and Payments: A Study of Attitudes of the Australian Public to Privacy - Summary and Findings (1996) at 14.
12. L D Brandeis and S D Warren “The Right to Privacy” (1890) 4 Harvard Law Review 193 at 195.
13. Australian Law Reform Commission Privacy (Report 22, 1983) Vol 1 at para 20. See paras 45-51 for a list of these interests.
14. Privacy Act 1988 (Cth) s 13.
15. Privacy and Data Protection Bills were introduced in 1994, 1995 and 1996, however, none was passed.
16. Speech by the New South Wales Attorney General, the Hon Jeff Shaw QC MLC to the conference, The New Privacy Laws: a symposium on preparing privacy laws for the 21st century (19 February 1997, Sydney).
17. See, in particular, Evidence Act 1995 (NSW) s 138.
18. See Chapter 5, Issue 15.
19. New South Wales Crime Commission Submission (October 1995, provided to the New South Wales Law Reform Commission by letter dated 16 September 1996) at 1.
20. See paras 4.13-4.16.
21. Letter from the Privacy Committee of New South Wales to the New South Wales Attorney General dated 2 May 1996.
