CIVIL LIBERTIES
Surveillance in the 21st century: A legal and human rights perspective EMERITUS PROFESSOR RICK SARRE, PRESIDENT, SA COUNCIL FOR CIVIL LIBERTIES
I
n the late 1970s I found myself wandering the mostly deserted streets of East Berlin, having successfully negotiated Checkpoint Charlie and a phalanx of East German border guards. I remember commenting to my companions at the time that the great difference between that repressive nation and the world that we had grown up in was the level of surveillance. We would never want to live in a world, we agreed, where suspicious eyes followed us going about our daily affairs. Fast forward forty years, and the citizens of the ‘free’ world now find themselves under far more pervasive visual and other scrutiny than the burghers of East Berlin ever did. Millions of closed-circuit television (CCTV) cameras are now in place and taken for granted throughout the world. In fact, no one has any idea how many cameras there are in any city at any given time because most are privately owned. There are, also, now tens of thousands of ‘unmanned airborne vehicles’ (sometimes referred to as ‘drones’) in public and private Australian hands, too. Originally aircraft-sized, and designed solely for military purposes, small drones are now available to the public for very little outlay. 1 Inside what appears to be a model aircraft is a sophisticated camera, along with a computer that drives the motor and tracking systems.2 And one cannot forget the ubiquity of the ‘smart’ phone, complete with recording devices. We are told that there are more active mobile phone accounts in Australia than there are people.3 Moreover, each time we upload to or simply access our accounts on YouTube, Instagram, Twitter, Facebook, Google and other social media vehicles, we are laying ourselves bare to the controllers of cyberspace.
22 THE BULLETIN February 2021
Make no mistake we are being watched, listened to and filmed constantly. Future generations may not be concerned about their individual privacy being invaded, driven by ever-increasing desire for global connectivity at a relatively minimal cost. On the other hand, however, many people are developing a heightened expectation of privacy given the massive amounts of electronic data that can be crossmatched for a variety of public and private purposes, for both good and ill. Let’s examine how the surveillance landscape is playing out, and how the law operates in response.
CCTV, PHONES AND DRONES In addition to the images pouring into databanks from public owned CCTV cameras, hundreds of hours of footage from privately owned CCTV and phone cameras are handed to journalists, lawyers and the police daily.4 This footage may contain displays of inappropriate or illegal behaviour. The images are provided by persons who wish to report, sue, defend themselves, or simply embarrass their targets. The law helps very little in these cases. Remember that Australia does not have a tort of ‘serious invasion of privacy,’ a remedy that is well established in New Zealand, the United Kingdom and in several states of the USA. Australian governments, in contrast, and under pressure from media moguls, have been pussyfooting around this area for many years, notwithstanding repeated calls from law reform bodies to enact such a tort. 5 The High Court twenty years ago gave a strong indication that they do not see it as their role to be the harbingers of any such change.6
All Australian states and territories have had laws regulating the use of listening devices for the past fifty years, but they are a dog’s breakfast. These governments have made no attempt to pursue uniform legislation. The laws regulating recording and distributing data are thus many and varied, which makes no sense in a national marketplace.7 Typically, statutes regulating surveillance devices make it an offence to listen to, film or record a private conversation. Broadly speaking, it is illegal to install a surveillance device without an appropriate police warrant. It is an offence in all jurisdictions to broadcast a recording of a covertly taped or filmed conversation or publish any information from it. Indeed, a person may be committing an offence in some jurisdictions by simply possessing a report that contains a summary of the contents of the recording. This is all well and good for civil liberties. But there are numerous defences, including the vague “public interest” defence. It is high time that all AttorneysGeneral came together to craft a consistent approach to surveillance laws so they better reflect public expectations regarding freedom from inappropriate scrutiny.
FACIAL RECOGNITION Facial recognition surveillance has a somewhat tawdry pedigree. It has been used to identify anti-Beijing protesters in Hong Kong.8 Chinese authorities allegedly use it to keep members of the Uighur minority in Xinjiang Province under surveillance.9 Surely, we console ourselves, this type of scrutiny of citizens is only deployed by authoritarian regimes in their dystopian worlds. Well,
