Technology neutral surveillance legislation

Recommendation 14–2 Surveillance legislation should be technology neutral. It should regulate surveillance through the use of listening devices, optical devices, tracking devices, data surveillance devices, and other devices and systems.

14.32 The ALRC recommends that surveillance legislation be technology neutral. This would mean that surveillance legislation could more readily be applied to any existing or emerging technology that could be used for surveillance. The ALRC is not recommending particular technology neutral definitions. However, the ALRC considers that the surveillance legislation should apply, at least, to the types of devices recognised under existing laws: listening devices, optical surveillance devices, tracking devices and data surveillance devices. The legislation should also apply to technologies that may be considered to fall outside the ordinary meaning of ‘device’, such as software or networked systems.

14.33 The existing, technology-specific laws lead to inadequate protections from surveillance. For example:

  • A whispered conversation in a public place may be a ‘private conversation’ and yet not a ‘private activity’, since the parties ought reasonably to expect to be observed, but ought reasonably expect not to be heard. Optical surveillance offences would therefore not apply, yet an optical recording of the conversation could be used in conjunction with lip-reading software to determine the words spoken.[29]

  • An optical recording of someone’s smart phone screen in a public place may not amount to surveillance of a private activity. It would also not amount to data surveillance, since the surveillance device laws that define ‘data surveillance device’ exclude optical surveillance devices from that definition.[30]

  • Tracking the movements of an individual using their mobile phone does not amount to an offence under the Surveillance Devices Act 1999 (Vic), since a ‘tracking device’ under that Act is ‘an electronic device the primary purpose of which is to determine the geographical location of a person or an object’.[31] By excluding devices with tracking capabilities that are not a primary purpose—such as mobile phones—such a definition is limited in its application.

14.34 In addition to recognising existing types of surveillance devices, surveillance legislation should also recognise emerging technologies that may be used for carrying out surveillance. Four technologies, in particular, have generated some degree of community concern:

  • unmanned aerial vehicles (drones) capable of being fitted with listening devices or optical surveillance devices;[32]

  • wearable surveillance devices;[33]

  • data surveillance devices in addition to those that can monitor information passing into or out of a computer system, such as radio frequency identification (RFID) readers;[34] and

  • tracking devices other than more traditional self-contained devices, such as networks that can locate an individual moving through an area over time.[35]

14.35 In many cases, these emerging technologies will fall within an existing definition. A drone fitted with an optical surveillance device, for example, will fall within the existing definitions of ‘optical surveillance device’, and a wearable microphone will fall within the existing definitions of ‘listening device’. In other cases, however, a method of surveillance may not fall within any of the existing definitions. A technology neutral approach would avoid this limitation.

14.36 Submissions were generally supportive of a technology neutral approach to surveillance device laws.[36] For example, Free TV submitted that ‘[a] technologically neutral definition of “surveillance device” would further promote consistency across devices’.[37]

14.37 However, some stakeholders expressed concerns that technology neutral legislation may fail to capture important distinctions between different types of devices. The Australian Privacy Foundation submitted that

there may well be particular technologies which give rise to specific concerns. Where this is the case, or where it is necessary to avoid doubt about whether or not a type of device is subject to the law, there may be an inescapable need for definitions to refer to particular technologies.[38]

14.38 Similarly, the UNSW Cyberspace Law and Policy Community agreed that

The ‘technology neutral’ idea for surveillance device is a good one in principle, but also needs to distinguish between very different technologies, eg drones with cameras and data surveillance by software, to the extent they raise different issues. In practice such neutrality is difficult to achieve, and may omit or overlook some of the potential for new or divergent technology to raise particular issues not considered previously.[39]

14.39 On balance, the ALRC considers that the benefits of a technology neutral approach outweigh the risks. Moreover, the risks can be reduced through appropriate framing of other legislative provisions. First, certain types of devices, such as the four types falling within the existing definitions, could be explicitly defined as surveillance devices. This would help to ensure that such devices did not fall outside the scope of surveillance legislation. Secondly, many of the distinctions between different types of devices can be adequately reflected in the surveillance offences themselves. The ALRC agrees, for example, that optical surveillance devices and data surveillance devices may raise different issues and lend themselves to different forms of surveillance. However, these differences can be adequately reflected in offences that distinguish between, for example, recording a private activity (which might be carried out with an optical surveillance device) and monitoring the information entered into an information system (which might be carried out with a data surveillance device). The ALRC considers it undesirable to restrict offences to surveillance carried out using particular devices, as is the case under existing laws.

14.40 The Australian Institute of Professional Photography expressed a concern that a technology neutral definition may be overly broad:

‘surveillance’ and ‘surveillance devices’ need to be defined with great precision, so that a commercial photographer is not prevented merely from capturing activity in public.[40]

14.41 Technology neutral legislation may be broad in scope and may capture many devices that can be used for legitimate purposes, such as cameras. However, although a broad range of devices may be captured by technology neutral laws, an offence would only be made out where the particular use of the device is inappropriate. Existing surveillance device laws require various conditions to be met for an offence to be made out. For example, under the Surveillance Devices Act 1998 (WA), optical surveillance is only an offence where it involves recording or observing a ‘private activity’ defined as:

any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed.[41]

14.42 Under this definition, an activity carried on in public would generally not be a ‘private activity’, to the extent that the parties ought reasonably to expect that the activity may be observed. Such a definition would clearly exclude activities taking place, for example, in public streets, on public beaches, or at public events. It would not be sufficient that the activity was of a private, personal or intimate nature.