COVERT VISUAL SURVEILLANCE: A NOTE
4.1 In distinguishing between the Listening Devices Act 1984 (NSW) (“LDA”) on the one hand, and visual surveillance devices on the other, the Commission’s terms of reference reflect the demarcation prevailing in the regulation of different types of surveillance device. Technological developments since the legislation was enacted have made such distinctions artificial. Covert visual surveillance operates in the same realm as, and often simultaneously with, covert aural surveillance. Therefore, analysis of the issues relevant to the operation and regulation of covert visual surveillance devices more properly belongs in the discussion of the LDA in Chapter 5.
OVERT VISUAL SURVEILLANCE
Introduction
4.2 We have become accustomed to being watched. In banks, department stores, at major sporting events, or busy traffic intersections, we know cameras will be monitoring the scene. These are examples of overt visual surveillance. Overt surveillance1 generally means the unconcealed use of surveillance equipment, usually signposted to draw to the individual’s attention the fact that he or she is under observation. Many other examples could be cited of locations where overt visual surveillance equipment is already being used, such as the foyers of offices, hotels and clubs, bus and railway stations, car parks, service stations, retail outlets and shopping malls. With the interest shown by government authorities, corporations and private businesses in this technology it is likely that such usage will only increase. The primary technique used for such surveillance is video cameras without sound.
4.3 Visual surveillance could also include the use of telephoto and other remote camera equipment, even if not in any way concealed, but directed at people on private property. It is common for media photographers to position themselves where they can photograph the activities of people in the news. Insurance investigators and law enforcement agencies also use remote telephotography in the course of their work, although such surveillance is usually covert, not overt.
4.4 In the 1960s, when the market for closed circuit television (“CCTV”) commenced in Australia, its use was restricted to providing high level security and the monitoring of hazardous production processes. Since then, the falling cost of the equipment, together with its increasing sophistication, have led to a rapid expansion of the Australian market, with the industry reporting a growth in retail sales in 1994/5 of 24%, for an estimated total value of over $50 million.2 There is some popular concern about the continuing lack of regulation, given the growth of this industry.
4.5 Overt surveillance need not be limited to purely visual devices. A surveillance device, as already noted, can have varied capabilities, and it is likely that a video camera used as a visual surveillance device also has the potential to be used as a listening device. However, this chapter is limited to a discussion of overt visual surveillance as overt audio or audio-visual surveillance may contravene the LDA.3 Additionally, the Commission suggests that the recording of sound in public places involves different policy issues and is less likely to be acceptable to the community. For example the English Model Code for closed circuit television (see below) forbids the recording of sound in public places.4
Justifying visual surveillance
4.6 Arguments justifying the use of surveillance in general were discussed above in Chapter 2. With respect to visual surveillance, its main goals may be stated, in summary, as enhancing:
- law enforcement, by deterring the commission of crime, by facilitating its policing, and by providing evidence for the prosecution of offenders;
- public safety, where this may be jeopardised by criminal activity, road traffic or other transport, and the presence of crowds, such as gather at sporting venues and other major spectacles;
- the protection of private property;
- traffic management and efficiency; and
- in the case of public and newsworthy events (such as rallies, sports competitions or parades), awareness, and possibly amusement, on the part of the general public.
4.7 A significant example occurred during 1995 and 1996, when police installed street cameras in George Street in the central business district of Sydney, a busy thoroughfare characterised by leisure activities, such as cinemas, game parlours and licensed premises. This was a trial, seeking to ascertain the impact CCTV would have on a heavily congested area, prone to criminal and anti-social behaviour and difficult to police. Evidently, the trial was adjudged a success,5 and more cameras were set up in the Sydney suburb of Cabramatta in September 1996. In February 1997 Sydney City Council announced its intention to install a number of surveillance cameras linked to video phones at various “hotspots” around the city, including Circular Quay and Chinatown.6
4.8 Further examples of the use of visual surveillance devices can be found at the Belconnen and Woden bus interchanges in the Australian Capital Territory, where the primary purpose of the cameras is to allow supervisors to observe bus, and to a lesser extent passenger, movements.7 The Sydney Football Stadium and the Sydney Cricket Ground are equipped with devices which can focus on, and quickly generate a colour reproduction of, individual spectators.8 Another now well-known application of visual surveillance technology came to light after Sydney’s bid to host the 2000 Olympics proved successful. It was revealed that while delegates of the International Olympic Committee were being hosted around the city, traffic monitoring cameras were being utilised to ensure that vehicles ferrying the delegates were given green lights.9 These are merely isolated examples of the numerous applications of visual surveillance technology in use today. They also illustrate the possibility of surveillance equipment being used for purposes other than those envisaged at the time of installation, a phenomenon sometimes referred to as “function creep”.
4.9 The development of the law with regard to occupiers’ liability is also worth noting in this context. Since 1987 general principles of negligence now govern the duty owed by occupiers to entrants onto the land.10 In its present state, however, the law is unclear as to whether the occupier of “high risk” premises is liable to an entrant who is injured by the act of a third party. There may be circumstances in which an occupier will be held liable to an entrant for failing to take sufficient measures to provide security, for example by the provision of sufficient lighting. The susceptibility of particular locations, such as car parks, to attract undesirable behaviour would be one of many factors to be taken into account. At present, an occupier has no duty to provide surveillance for the protection of lawful entrants. However, with the trend towards increasing the use of such technology, it is possible to envisage a future in which the installation of surveillance systems is regarded as the norm in certain contexts. In those cases, the use of surveillance equipment may become an incident of an evolving legal obligation to provide adequate security.
The case against visual surveillance
Privacy
4.10 Chapter 2 discussed the privacy arguments against surveillance in general. These arguments are less cogent for overt surveillance, as it usually involves recording of an activity taking place in the full glare of public view. Perhaps “privacy” is an inadequate term to convey the rights which people may feel are threatened. It is not so much that others may, through overt surveillance in public, obtain some private information about them. Rather, the concern is that some act, quite possibly harmless and best forgotten, once captured by the surveillance camera and permanently recorded, has the potential to become a source of humiliation, even blackmail.
4.11 Another aspect to consider is that the individual may see nothing untoward in his or her behaviour in public, when he or she views that occasion as constituting a “one-off”, as far as passing onlookers are concerned. If, however, such video recordings of an individual were used to chart his or her habits or associates, then such surveillance might be regarded as insidious, again because of the potential for embarrassment or blackmail.
4.12 Another objection to the use of street cameras may be made simply on the ground that many people do not like being watched, regardless of whether they are doing something wrong or not. In the absence of wrongdoing, many would endorse the view that they have the right “to be let alone”,11 and that such a right is infringed by indiscriminate mass surveillance.
Effectiveness of CCTV systems
4.13 Behind the burgeoning use of street surveillance is the public’s perception of enhanced security, providing increased personal and property protection. In Australia no substantive research has been undertaken to indicate whether, in fact, CCTV systems produce this result.12 Even in the United Kingdom, where CCTV systems have been used for a number of years, very few studies have been undertaken. In one which examined public attitudes towards the use of CCTV, the authors concluded that while the majority of people surveyed reacted positively to the use of CCTV and assumed it to be effective in crime control, this acceptance was based on “limited, and partly inaccurate knowledge of the functions and capabilities of CCTV systems in public places”.13
4.14 The findings of a later study,14 evaluating the effectiveness of CCTV systems operating in three locations in England, could not be regarded as endorsing public confidence in their capacity to control crime. The study found that the use of surveillance cameras did appear to reduce the incidence of property crime initially, but to sustain this improvement required bolstering with an increase in the number of resulting arrests.15 With regard to personal crime the results were less conclusive, indicating that the benefit of surveillance lay more in providing the police with assistance in both responding quickly to criminal activity and evidence gathering, than in deterring attacks.16 While the presence of cameras may have helped contain the incidence of robbery and theft from the person in targeted areas, it appears that these sort of acts tended to be displaced to nearby streets not in camera view. The study acknowledged the difficulty in measuring the degree of displacement, but stated that the evidence suggested it took place.
4.15 In the Australian Capital Territory an inquiry into the efficacy of surveillance cameras in public places concluded that “the perception of public danger may be overstated and ... the effectiveness of CCTV as the solution ... yet to be demonstrated”.17 As a result the Report recommends that Commonwealth co-operation be sought in conducting a nation-wide review into the effectiveness of CCTV.18
4.16 Although the Commission is not itself engaged in evaluating the efficacy of CCTV, it notes that there is little evidence from which to conclude that the enormous expense of establishing such a system will, of itself, provide local authorities with the panacea to crime and anti-social behaviour. Such authorities would need to question whether other means of controlling crime, such as increasing the numbers of beat police, might not achieve similar results at lower cost.
REGULATION OF OVERT VISUAL SURVEILLANCE
4.17 At present, the law does not prevent anyone from taking photographs with a telephoto lens. So long as that person is not trespassing on another person’s land, even though the object of the photograph may be in a place to which the photographer could not lawfully gain access, no offence is committed.19
4.18 There is no legislation directly governing the use of visual surveillance equipment. Phillip Bradley, Chairman of the New South Wales Crime Commission, suggests that this is:
probably due to the fact that people conduct their affairs in public or in circumstances where they are likely to be photographed in a more circumspect way than they do, for example, on the telephone where the prospect of being heard through a crossed line or an extension telephone is somewhat greater.20
He notes that the only legislative prohibition on the use of visual surveillance is in the Australian Security Intelligence Organization Act 1979 (Cth). Section 22 defines “listening device” to include equipment capable of recording images, and could thus include a camera. This prohibition, however, is limited to special circumstances relating to the work of the Australian Security Intelligence Organisation.
4.19 The only direct reference in New South Wales legislation to the operation of a visual surveillance system appears to be that contained in the Casino Control Act 1992 (NSW), which makes it a condition of a casino licence that the New South Wales Casino Control Authority approves plans relating to the conduct and monitoring of casino operations, including:
the manner in which a closed circuit television system operates within the casino, including details of the positions and field of coverage of the cameras and viewing screens and the height of the cameras above the gaming.21
4.20 The Evidence Act 1995 (NSW) gives courts a discretion to exclude evidence, including that obtained by visual surveillance equipment, in certain circumstances. If, for example, the evidence is unduly prejudicial to a party or if it was obtained illegally, (for example by deception or a trespass on land) the judge may, but is not required to, exclude it.22 This does not provide an adequate safeguard against the abuse of individual privacy, because there are no clear standards governing the exercise of this discretion.
4.21 There are indications that the community is concerned about the degree of intrusion upon what it regards as its private affairs, and may be seeking protection from behaviour and the use of technology which tends to be intrusive. The Commission seeks views as to whether these indications are accurate, and as to what standards for protection from unwarranted intrusions might be appropriate.
4.22 Protection from privacy intrusion may come in the form of standards which must be complied with in the use of surveillance devices. Regulation, through legislation, is one way to achieve this. Another is through self-regulation, where the providers and users of surveillance systems establish the standards by which they are to be bound. This has the advantage of shifting much of the cost of regulation from government to the regulated, but may be less effective in achieving the protection desired by the public. For this reason the Commission seeks comment on the desirability of regulation, and the form any such regulation should take.
Regulation by codes of practice
4.23 An alternative to legislation is for users of overt surveillance technology to comply with a code of practice, which could be enforceable on a purely voluntary basis, or by virtue of being based on a set of legislated standards (also known as “enforced self-regulation”).23 The Privacy Act 1988 (Cth) contains an example of legislative standards which are not directly enforceable, but which provide a direction and framework for specific application. Section 14 lists 11 “Information Privacy Principles” by which public sector agencies must abide.24 The principles are stated in general terms, and can be reflected in rules applying them to specific situations. The Act also requires the Privacy Commissioner to issue a Code of Conduct in relation to credit information files and credit reports, with which credit reporting agencies and credit providers must comply.25 Once the Commissioner has accepted the rules, which are prepared primarily by those subject to regulation, they have the force of law.
4.24 In the United Kingdom, where CCTV has been used on a larger scale than in this country, rising concern over the implications of using surveillance technology has led to the development of a Model Code of Practice,26 despite the fact that many local CCTV schemes had already adopted voluntary codes of practice. These voluntary codes had tended to focus on the needs of the criminal justice system, whereas the designers of the Model Code believe the focus has shifted to public confidence in the use of surveillance, requiring the extension of “codes to ensure accountability, good quality public information and effective, well-managed relationships between the owners of schemes and the police”.27 The Model Code, while remaining voluntary, foreshadows the possibility of:
the need for a statutory form of control, specifying basic standards which a CCTV scheme covering public places must meet. Liberty (formerly the National Council for Civil Liberties) argues that the introduction of statutory controls should be introduced (sic) without delay. Should that point be reached, the most sensible approach would enable the Secretary of State to make decisions within a basic framework on detailed regulations, which would be coupled with a system of local authority licensing.28
4.25 The Model Code introduces elements not normally present in the voluntary codes, most of which concentrate on such items as video tape handling and other features relevant to the criminal justice system.29 These elements also meet criticisms that voluntary codes have not proved to be effective in the long term. Some of these new elements appear under such heads as “Purpose statement”, “Data Protection implications”, “Responsibilities of the owner of the scheme”, “Partnership”, “Accountability”, and so on. A number of principles are highlighted at the start of most sections, followed by a list of practical issues requiring resolution for compliance with those principles.
4.26 The New South Wales Police Service released a paper30 at around the same time as the Model Code was published in the United Kingdom. Its aim is to provide a “strategic and responsive framework” in which local government authorities can implement CCTV systems, drawing on police assistance. It is intended to operate more as a practical manual for setting up a CCTV scheme than a code of practice, but does address the need for community consultation. It does not attempt to formulate a comprehensive set of principles informing the installation of visual surveillance devices, but rather to provide a community service in the form of expertise. The guidelines contain suggestions on such diverse issues as the steps to be taken before making a decision whether or not to install a CCTV system, including the establishment of safety committees, and carrying out enquiries as to the environmental and commercial impact of the installation, and camera and monitoring equipment specifications. While it is called a “code”, it is not enforceable, and the Commission considers that, if regulation of visual surveillance is found to be desirable, enforceable standards of behaviour, rather than guidelines, are likely to be required.
4.27 The Commission sees possible merit in the establishment in this area of basic standards that also allow for adaptation to local or specific conditions. With the demand for CCTV increasing, it seems preferable to introduce standards as soon as practicable, rather than deal with the proliferation of surveillance schemes in a piecemeal fashion. Further, comprehensive and uniform standards should be seen as a tool benefiting owners of surveillance technology. For example, local councils would receive direction in formulating their own street surveillance policies, and, as a result, efficient use of resources in establishing such schemes would be facilitated. In tentatively proposing legislating with respect to standards, the Commission is not suggesting that stringent controls, such as those pertaining to the use of listening devices, be extended to overt surveillance devices. It is envisaged that, were regulation to be introduced into this area, it would constitute a regime distinct from that governing covert surveillance devices, although it could, of course, be contained within the same, albeit expanded, legislation.
4.28 The major advantage of “enforced self-regulation” for those who are regulated is that they make the rules themselves, drawing on their knowledge of the environment in which they operate. However, the rules do not become enforceable until they receive the sanction of a public official given specific authority to do so by an Act of Parliament. The advantage to the public is that whatever rules are established are vetted by a public authority and may be enforced in the same way as other regulatory laws.
4.29 Therefore, as a possible alternative to legislation, the Commission suggests consideration of a set of standards contained in legislation. These standards would provide the basis for, and would be reflected in, the development of any code of practice developed by a particular industry/group, such as local councils, operators of shopping centres, department stores or parking stations. Before any such specific code could become enforceable as a legally binding set of rules it would need approval by a regulatory authority.31 The code would be designed by its users but accountability would be provided through certain non-negotiable standards, embodied in legislation, and by the oversight of the regulator.
4.30 It is important that:
- those affected by the regulation participate in its formulation;
- before becoming effective, the proposed regulation is scrutinised by a responsible authority and is subject to disallowance in the same way as other delegated legislation; and
- if breach of any provisions attracts sanctions, those provisions be specific and clear.
Areas for legislative standards
4.31 If the need for regulation (whether in the form of legislation, or through enforced self-regulation) is accepted, determining the areas to be covered becomes important.
Public and private places
4.32 Consent on the part of individual passers-by to being watched and recorded - inferred from the lack of concealment of the cameras and the posting of signs indicating their presence - makes the overt use of surveillance equipment a less important area for stringent regulation than that of covert use. Such consent may not, however, be assumed to extend to private property, such as the interiors of residences which may be filmed unintentionally in the course of surveillance of a public place. While not constituting a physical trespass, it is arguable that this represents an untenable invasion of privacy which the owner of the system is bound to avoid.
4.33 The distinction between public and private domains is, however, often unclear. There are places to which the public are welcome and even invited to visit, such as indoor shopping centres. Individuals may consider they are in a public place, and are unlikely to acknowledge its actual private ownership. Formulating standards on the basis of whether the property on which the surveillance is taking place is in public or private ownership may lead to artificial and arbitrary distinctions in the way privacy is protected.
Other matters
4.34 The regulation of overt visual surveillance would not need to be as detailed or prescriptive as the measures typically found in legislation dealing with covert surveillance. Experience in Australia and in other countries suggests that some aspects of overt visual surveillance commonly create fear of the possibility of unduly intrusive surveillance. Control of these aspects requires attention to matters including:
- the purposes for and conditions in which surveillance equipment may be installed or used;
- the nature of warnings or notice that should be given to potential subjects of surveillance;
- the training and qualification of those who install, monitor, and control day-to-day operations of surveillance equipment;
- access to, periods of retention of, and destruction of tapes and records of surveillance; and
- the use of tapes and records as evidence in court proceedings (both civil and criminal).
ISSUE 5
What areas should be covered by legislative standards? Possible questions for consideration include:
(a) What activities using visual surveillance devices should be regulated?
(b) Should a distinction be drawn between private and public places when considering regulation?
(c) Should some kinds of visual surveillance device be subject to a licensing requirement?
(d) Should there be restrictions with regard to who may own or use visual surveillance equipment?
(e) What procedures and standards should exist for the retention and disposal of tapes?
(f) Should there be a system for authorising individuals or bodies to perform certain functions associated with surveillance activities, for example installation of equipment, monitoring the recording, and tasks associated with storage and disposal of tapes?
Penalties for breach
4.35 The disadvantage of most codes of practice or sets of legislative standards is the lack of enforcement mechanisms for failure to comply with them and the lack of any penalty for their breach. The Commission does not favour a purely voluntary code in this area for several reasons:
- the sophistication of the available technology enables a high level of intrusiveness which infringes community privacy interests;
- there are a large number of potential users in a variety of situations, which prevents effective self regulation by a particular industry or group; and
- there is enormous scope for unscrupulous use of the material obtained.
The Commission therefore considers that there should be sanctions for the breach of key standards in the area of overt visual surveillance, though the form of such sanctions is a matter which requires further consideration.
4.36 Sanctions could only be imposed after proper processes had been followed to protect the rights of those charged with failure to comply, and for breach of clear and specific provisions. The alternatives are that specific provisions are embodied in either legislation, or in codes formulated by the affected groups but approved by a regulator. If codes are adopted, the legislation would need to specify which of the principles were considered so important that no code could be approved (and thus become enforceable) unless it applied that principle specifically. For example, the general principle may be that tapes made by CCTV equipment should not be retained for more than a reasonable period. The specific provision in a code for car park operators might require destruction or erasure of the tapes after 14 days unless required for court proceedings. Potential sanctions include: fines, adverse publicity, annual reporting requirements and withdrawal of permission or cancellation or non-renewal of a licence.
Exemptions
4.37 Balancing the desire for privacy are the freedoms which a civilised society enjoys. These include, subject to the law, freedom of expression and the individual’s freedom to do as he or she pleases so long as not causing injury to another. In regulating visual surveillance a definition of that term could be drafted so as to exclude from the scope of any regulatory rules those activities not requiring regulation, such as recreational photography (including video recording).
FOOTNOTES
1. See para 2.3.
2. Privacy Committee of New South Wales Invisible Eyes: Report on Video Surveillance in the Workplace (Report 67, 1995) at para 1.4.
3. See Chapter 5 generally.
4. United Kingdom - Local Government Information Unit A Watching Brief: a Code of Practice for CCTV (March 1996) at 30.
5. New South Wales Police Service Evaluation of the Closed Circuit Television System in the City of Sydney Patrol Safety Zone (January 1996).
6. N Papadopoulos “Spy cameras get the go-ahead to focus on city troublespots” The Sydney Morning Herald (7 February 1997) at 3.
7. Legislative Assembly for the Australian Capital Territory - Standing Committee on Legal Affairs The Electronic Eye: Inquiry into the Efficacy of Surveillance Cameras (Report 2, September 1996) at paras 3.2, 3.3.
8. Privacy Committee of New South Wales at para 1.4.
9. Privacy Committee of New South Wales at para 1.4.
10. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
11. See para 2.16.
12. Legislative Assembly for the Australian Capital Territory - Standing Committee on Legal Affairs at para 6.6.
13. T Honess and E Charman Closed Circuit Television in Public Places: Its Acceptability and Perceived Effectiveness (Home Office Police Research Group, London, 1992) at 25.
14. B Brown CCTV in Town Centres: Three Case Studies (Home Office Police Research Group, London, 1995).
15. Brown at 62-63.
16. Brown at 63-64.
17. Legislative Assembly for the Australian Capital Territory - Standing Committee on Legal Affairs at para 6.5.
18. Legislative Assembly for the Australian Capital Territory - Standing Committee on Legal Affairs at para 6.10.
19. Victoria Park Racing and Recreation Grounds Co Limited v Taylor (1937) 58 CLR 479.
20. P Bradley “Recent Extensions of Power”, paper presented at the seminar Listening Devices and Electronic Surveillance: Police Powers and Citizens’ Rights (Sydney, 20 April 1987) at 33.
21. Casino Control Act 1992 (NSW) s 65; see also Part 7, Div 1 and s 125(1)(s).
22. Evidence Act 1995 (NSW) Part 3.11.
23. J Braithwaite, “Enforced Self-Regulation: A New Strategy for Corporate Crime Control” (1982) 80 Michigan Law Review 1466 provides examples of “enforced self-regulation” which he considers successful.
24. Privacy Act 1988 (Cth) s 16.
25. Sections 18A-18B. The Privacy Commissioner has published Credit Reporting: Code of Conduct and Explanatory Notes (March 1996).
26. United Kingdom - Local Government Information Unit.
27. United Kingdom - Local Government Information Unit at 3.
28. United Kingdom - Local Government Information Unit at 7.
29. United Kingdom - Local Government Information Unit at 6.
30. New South Wales Police Service Guidelines for Investigation of Potential for, and Implementation of, Closed Circuit Television (CCTV) by Local Councils and Shires (May 1996).
31. One possible suggestion is for this function to be vested in the Privacy Commissioner, whose office will be established by the privacy and information protection legislation which the Attorney General has foreshadowed: 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).
