1. Copyright 2007-12 1 Roger Clarke Xamax Consultancy, Canberra Visiting Professor in Cyberspace Law & Policy, UNSW and in Computer Science, ANU Chair, Australian Privacy Foundation http://www.anu.edu.au/Roger.Clarke/......../DV/PoVSR {.html,.ppt} PoVS Conference – Uni Sydney – 22 February 2012 The Regulation of Point-of-View Surveillance

2. Copyright 2007-12 2 The Regulation of Point-of-View Surveillance AGENDA PoV Surveillance Technologies PoVS Apps, Impacts, Implications Regulation of Media Surveillance Contemporary Prospective

3. Copyright 2007-12 3 Forms of Surveillance 1.Behavioural Surveillance 2.Communications Surveillance 3.Dataveillance 4.Location and Tracking Surveillance 5.Body Surveillance ['Überveillance' Type 1] 6.Omnipresent and/or Omniscient Surveillance ['Überveillance' Type 2]

4. Copyright 2007-12 4 Dimensions of Surveillance 1.Of What? 2.For Whom? 3.By Whom? 4.Why? 5.How? 6.Where? 7.When?

5. Copyright 2007-12 5 Point-of-View Surveillance Base Definition The use of a device to observe and/or record still- or moving-image and/or sound, that has the following characteristics: is human-borne points away from the human; and is designed to capture data from the person's point-of-view or line-of-sight Mounts may be on the head, spectacles, helmet, etc. May be obvious, non-obvious, or obfuscated

6. Copyright 2007-12 6 PoVS Technologies Extensions to achieve a Looser Definition Person-Attached Device, other than to the head e.g. shoulder-strap, belt Person-Held Device May be held at the eye, or in front of the eye, but may be held low, held above the head, etc. Personal-Device-Attached Device e.g. on a baton, taser, pistol... 55,000 minicameras mounted on Tasers... (NYT Advertorial, 21 Feb 2012)...

7. Copyright 2007-12 7 Not-but-Near-to PoVS Technologies CCTV (Fixed): Public Place Government, Corporate Personal ANPR: Fixed Mobile Point-to-Point Vehicle-Mounted In-Car Video (ICV) Drones Device-Mounted, but at, not from Web-cams...

8. Copyright 2007-12 8 PoV Surveillance Capabilities Communicate to the person Unchanged data-stream Edited data-stream e.g. image- and colouration enhancement Overlaid / Augmented data-stream(s) e.g. beyond-human-spectrum imagery e.g. warnings to provide triggers e.g. building layouts Record locally Transmit remotely Record remotely

9. Copyright 2007-12 9 Tuatara / Orthoses Cyborgisation

10. Copyright 2007-12 10 Tuatara / Orthoses Cyborgisation

11. Copyright 2007-12 11 Tuatara / Orthoses Cyborgisation Beyond-human-spectrum cf. infra-red night goggles Multiple focal-lengths Wider vision Additional eyes, e.g. sideways, behind cf. parietal eye Action replay for events that occur while asleep, blinking, not concentrating... Enhanced-PoV Surveillance

12. Copyright 2007-12 12 PointS-of-View Surveillance Multiple feeds from the same area Reciprocal Parallel Multi-perspective For: Command-and-Control Intel Investigations and Evidence Employees, volunteers, co-optees, public feeds

13. Copyright 2007-12 13 The Regulation of Point-of-View Surveillance AGENDA PoV Surveillance Technologies PoVS Apps, Impacts, Implications Regulation of Media Surveillance Contemporary Prospective

14. Copyright 2007-12 14 PoVS Applications Porn Military Industrial / Operational Settings Fire-fighting, factory floor, liquor industry LEANS in Particular Learning (Edupov?) Research Consumer / Citizen Sousveillance

15. Copyright 2007-12 15 Sur cf. Sous Surveillance (sur = above) Enviro-centric Looks down from above, physically and hierarchically bosses watch employees police watch demonstrators taxis watch passengers shopkeepers watch shoppers Centralised control Often secret Breeds mistrust, which Breeds surveillance Breeds mistrust... Sousveillance (sur = below) Person-centric Looks up from below, less orgd, hierarchical demonstrators watch police shoppers watch shopkeepers citizens watch security people Distributed or no control Often open Individual or Community-based, which Breeds trust After a Steve Mann Analysis

16. Copyright 2007-12 16 The Objectives in relation to PoVS (as with anything else) Achieve Achievable Benefits Avoid Avoidable Disbenefits Manage Unavoidable Risks

17. Copyright 2007-12 17 Potential Benefits from PoVS Efficiency Enhanced Functionality Information for: Command and Control Intel Complaints Investigations Prosecutions Quality of Evidence... Accountability and Professionalism Public Confidence Safety Individual Public...

18. Copyright 2007-12 18 Disbenefits and Risks of PoVS – 1 Requisite Distance Chilling-effect of the eye Inflammatoriness of the eye Get that camera out of my face! Duelling PoVS Falsifiability Suppression and Selectiveness

19. Copyright 2007-12 19 Disbenefits and Risks of PoVS – 2 Retrospective Use: Suspicion-generation Mapping of social networks Behavioural S || Comms S || Dataveillance Revival and extension of Consorting Crimes Crimes Amendment (Consorting & Organised Crime) Bill (NSW) Introduced in February 2012 (NSW) Real-Time Use: Plausible criminalisation based on identity, location, video footage (and comms?) Predictive Use: Plausible criminalisation based on intention inferred from observed behaviour

20. Copyright 2007-12 20 The Regulation of Point-of-View Surveillance AGENDA PoV Surveillance Technologies PoVS Apps, Impacts, Implications Regulation of Media Surveillance Contemporary Prospective

21. Copyright 2007-12 21 Contemporary Regulation of Surveillance Generally The right to make use of PoVS Constraints on the use of PoVS LEANS (Law Enforcement And Nat Sec agencies) Additional Rights and Constraints Counter-PoVS Powers

22. Copyright 2007-12 22 General Rights to Use PoVS On the Persons Own Property A general right, subject to provisos On Other Peoples Property A revocable right, subject to provisos In a Private Place Only if a party to the conversation? In a Public Place If a reasonable expectation of privacy exists Usability if obtained without permission? in breach? in violation of a denial of consent? e.g. breach of confidence? Privacy Act use / disclosure?

23. Copyright 2007-12 23 Constraints on General Rights to Use PoVS Property-Related Constraints On (or near?) Government Property Military Properties – Crimes Act (Cth) s.82 Clth Properties – Crimes Act (Cth) s.89 Designated Areas (Sydney Opera House!?) On Other Peoples Property Can be precluded internally, but maybe cannot preclude looking into the premises ?However, not inside a building if a reasonable expectation of privacy exists In Workplaces (NSW, ACT only?) mere notice that surveillance is undertaken some limits on private place magistrates authority for covert surveillance

24. Copyright 2007-12 24 Constraints on General Rights to Use PoVS Censorship and Anti-Voyeurism Laws (peeping-tom, upskirting, downblousing) ? Torts Land – Trespass, Nuisance Person – Trespass, Obstruction, Assault, AVOs (NSW)?? Emotional State – Harassment, Stalking, PSIOs (Vic)? Deceit – Factual Misrepresentation??, Passing-Off?? Specific Legislation, e.g.: Major Events (Olympics, G8, APEC) ?Party to the conversation ?Eavesdropping is/was a common-law offence But, in NSW, deleted in 1995 (s.580B of Crimes Act) ?Direct action by the subject of the surveillance; but protections are for PoVSers rather than the aggrieved

25. Copyright 2007-12 25 State Surveillance and Listening Devices Acts Vic, WA, NT (1998-2000) & NSW (2007), Qld Surveillance Devices Acts Prohibition of surveillance of a private activity, except: by someone who is a party to the activity if the activity is happening outside the building; or if the circumstances indicate that the parties do not care if they are seen SA, Tas, ACT 1971, 1972, 1990 Prohibition of aural surveillance of a private activity, except... Workplace (NSW, ACT) Must be declared Covert only with a magistrate's approval Anti-Voyeurism laws may put toilets, bathrooms, change-rooms off-limits

26. Copyright 2007-12 26 Unenforced Laws Candice Falzon & Sonny Bill Williams – April 2007 Apparently in breach of Crimes Act 1900 (NSW) ss. 91I-91M re voyeurism, and Surveillance Devices Act 2007 (NSW) s.8 re optical surveillance, BUT no prosecution found

27. Copyright 2007-12 27 Pragmatic Constraints Many public places are government-owned and some are privatised (e.g. airports) Powerful organisations are able to achieve a great deal more than weaker organisations and individuals: Larger Real Estate (industrial and commercial premises, hospital and university campuses, malls,...) Access to Parliaments, by: Government agencies Large corporations Industry associations

28. Copyright 2007-12 28 LEANS – Additional Rights and Constraints Inherent Scope to avoid controls Inferred coercion (assault of a policemans fist, etc.) Magistrates courts favour police evidence LEANS may provide the only PoVS feed that is available to an investigator or court Abject failure to impose independent controls over illegal police behaviour

29. Copyright 2007-12 29 LEANS – Additional Rights and Constraints Authorised to use optical surveillance devices, in public places, without a warrant, provided that "there is no entry to premises without permission and no interference with any vehicle or thing" Surveillance Devices Act (Cth) s.37 Judicial Warrants – advantageous conditions ( ss.1- 27) Self-Issued Warrants ( ss.28-36) Warrantless, in a few circumstances ( ss.37-40) ?Warrantless, in many more Can be covert, may be able to be suppressed ( ss.44- 48)

30. Copyright 2007-12 30 The Range of Possible Counter-PoVS Powers To require a person to not use a PoVS device, in relation to particular activities, or in particular places To require a person to do an act re their PoVS devices: Delete recordings of particular activities To take actions in relation to a persons PoVS devices: Seize, i.e. remove from the person's possession Delete existing recordings of particular activities Disable particular functionality Inflict damage Destroy Confiscate, i.e. retain long-term or indefinitely

31. Copyright 2007-12 31 LEANS – Counter-PoVS Powers Major Events (Olympics, G8, APEC, CHOGM,...) APEC Meeting (Police Powers) Act 2007 (NSW) Self-Authorised Special Powers – LEPRA Law Enforcement (Powers & Responsibilities) Act 02/07 (NSW) Enables NSW Police to self-authorise special powers in public places in the event of what it judges to be "public disorder". The powers include stop and search without warrant and without reasonable grounds for suspicion, and seizing and detaining, originally, a communication device, but since 2007 any "thing, if [its] seizure and detention... will assist in preventing or controlling a public disorder" (s.87M) Anti-Terrorism Laws

32. Copyright 2007-12 32 http://www.gizmodo.com.au/2011/01/ recording-a-police-officer-could-get-you-15-years-in-jail/

33. Copyright 2007-12 33 Uncontrolled Use of Such Laws in Australia December 2008 re Nick Holmes a Court Camera-enabled Blackberry confiscated Without apparent justification Presumption of authority under Anti-Terrorism laws Reports suggest previous such incidents http://techwiredau.com/2008/12/who-watches-the-watchers- australian-threatened-with-arrest-under-australian-anti- terrorism-act-for-being-a-citizen-journalist http://www.couriermail.com.au/police-snatch-blackberry/story- fna7dq6e-1111118412772

34. Copyright 2007-12 34 http://thetandd.com/animal-rights-group-says-drone-shot-down/ article_017a720a-56ce-11e1-afc4-001871e3ce6c.html

35. Copyright 2007-12 35 The Objectives in relation to PoVS (as with anything else) Achieve Achievable Benefits Avoid Avoidable Disbenefits Manage Unavoidable Risks

36. Copyright 2007-12 36 Law Reform Recommendations – Ignored? 1983Australian Law Reform Commission appears to have addressed some aspects relevant to the issues (ALRC 1983, c. para. 1125) 1995NSW Privacy Committee provided Recommendations in relation to surveillance in the workplace (NSWPC 1995) 2005NSW Law Reform Commission made Recommendations in relation to both Overt Surveillance and Covert Surveillance (NSWLRC 2005) 2008Australian Law Reform Commission briefly discussed surveillance, made no direct Recommendations but Recommendation 74-1 re a Statutory Cause of Action lists as an example of a serious invasion of privacy:... (b) where an individual has been subjected to unauthorised surveillance (ALRC 2008) 2010Victorian Law Reform Commission recommended a law and a set of guiding principles for the responsible use of surveillance devices in public places (VLRC 2010)

37. Copyright 2007-12 37 Challenges Involved in Achieving Balance Advertorials, even in the NYT, today 21 Feb 12 Public-Private Partnerships cf. Procurement Probity Policemen in Corporate Promo Videos One-Sided Expression of Potential Benefits e.g. negating false complaints cf. appropriate resolution of complaints Marginalisation of Disbenefits and Risks Absence of Risk and of Privacy Impact Assessment Absence of Consultative Processes with Advocates Absence of Requirements-Based Scheme Design

38. Copyright 2007-12 38 The Regulation of Surveillance – General Principles 1.Justification 2.Proportionality 3.Openness / Transparency 4.Access Security 5.Controlled Use 6.Controlled Disclosure 7.Controlled Publication 8.Non-Retention and Rapid Destruction 9.Review 10.Withdrawal

39. Copyright 2007-12 39 Media Use of (PoV)Surveillance – Specific Principle DO NOT, unless a clear justification exists: seek or gather personal data observe or record personal behaviour Base justification only on: consent by the person to whom the data relates express legal authority; or an over-riding public interest The nature of the activities, and their degree of intrusiveness: must reflect the nature and extent of any consent provided must reflect the nature and extent of any express legal authority; and must be proportionate to the nature and significance of the public interest arising in the particular circumstances

40. Copyright 2007-12 40 Media Use of (PoV) Surveillance Controlled Activities 1.Activities that intrude into the person's private space 2.Activities that intrude into the person's reasonable expectations, even though they are in a public space 3.Deceit, such as: masquerade misrepresentation or subterfuge pretexting / blagging, masquerade unexpected observation or recording 4.Exploitation of vulnerability, naiveté or ignorance, esp. children, limited mental capacity, etc. 5.Intrusions into private space of people in sensitive situations 6.Coercion, incl. implication of a legal or moral obligation, intimidation, excessive persistence 7.Perceived trespass, nuisance, obstruction, pursuit, harassment or stalking

41. Copyright 2007-12 41 Australian Privacy Foundation (Sep 2009) Policy Statement re Visual Surveillance http://www.privacy.org.au/Papers/CCTV-1001.html 1.Justification... a Privacy Impact Assessment (PIA) must be conducted...... publication of a clear explanation...... public consultation...... consideration of less privacy-invasive alternatives 2.Proportionality... benefits... must outweigh the negative impacts...... no more intensive... and no more extensive than justified

42. Copyright 2007-12 42 Australian Privacy Foundation (Sep 2009) Policy Statement re Visual Surveillance http://www.privacy.org.au/Papers/CCTV-1001.html 3.Openness / Transparency Covert requires formal, specific and bounded legal authority, issued by an independent judicial institution Overt, in private space and in public spaces where a reasonable expectation of privacy exists,, and must disclosed and clearly notified Overt, in public spaces, must be disclosed, clearly notified In all cases, any identifiable data arising, under any circumstances, must be treated as personal data under data protection laws

43. Copyright 2007-12 43 Roger Clarke Xamax Consultancy, Canberra Visiting Professor in Cyberspace Law & Policy, UNSW and in Computer Science, ANU Chair, Australian Privacy Foundation http://www.anu.edu.au/Roger.Clarke/......../DV/PoVSR {.html,.ppt} PoVS Conference – Uni Sydney – 22 February 2012 The Regulation of Point-of-View Surveillance

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46. Copyright 2007-12 46 The Challenges Involved in Achieving Balance Advertorials, even in the NYT, today 21 Feb 12 Public-Private Partnerships cf. Procurement Probity Policemen in Corporate Promo Videos One-Sided Expression of Potential Benefits e.g. negating false complaints cf. appropriate resolution of complaints Marginalisation of Disbenefits and Risks Absence of Risk and of Privacy Impact Assessment Absence of Consultative Processes with Advocates Absence of Requirements-Based Scheme Design

47. Copyright 2007-12 47 The Challenges Involved in Achieving Balance http://archive.truthout.org/105097