Recording a private conversation without prior consent using a smartphone or wearable like Google Glass may become illegal, if recommendations from the Australian Law Reform Commission are accepted into state and federal law. A 230-page report from the ALRC was released this morning, and makes almost 50 suggestions for bringing Australian law up to date on personal privacy to eliminate "unlawful surveillance".
The Financial Review reports on the paper's official release, although some initial info was teased late last week. The ALRC paper, Serious Invasions Of Privacy In The Digital Era, makes plenty of sweeping recommendations on a proposed overhaul of privacy law, bringing it up to date with the advancements of technology and personal interaction in the 21st century.
Google Glass gets name-checked in the report (7.8MB PDF), with a submission from Electronic Frontiers Australia saying that Glass' use for invasions of privacy "may not be adequately addressed under current laws but which may fall within the scope of a cause of action for serious invasion of privacy.
Even if the laws were enacted, there would be scope for Glass users to record the actions of themselves and others:
It is important to note that uniform surveillance device laws would not, and should not, prohibit the use of such devices generally. A wearable device may have many legitimate uses that do not amount to surveillance. Whether or not the use of a device constituted an offence would depend on the circumstances of its use, such as the activity being captured, the extent of the monitoring or recording, and whether or not parties to the activity were aware that the device was being used.
The most important and over-arching recommendation is establishing a tort of privacy in Commonwealth law, rather than trying to push changes to the legislation of each state and territory. This is the 'action' mentioned above by the EFA. A tort is a civil understanding — a precedent or level of conduct that is the benchmark for interaction between citizens, the breaking of which can be grounds for a lawsuit or civil action. What establishing a privacy tort would do is give private Australians the foundation to sue if they feel they've been wronged — a situation which, for personal privacy, doesn't already clearly exist in Australian society.
Google Glass could come under fire if the proposed law recommendations are enacted. Google has already urged early adopters not to be Glassholes, but the recommendations around recording conversations or private activities without the consent or knowledge of the other party seem squarely aimed at this new wave of wearable technologies. Unobtrusive recording devices being used — a smartphone switched on and saving audio in your breast pocket, for example — could also constitute a serious breach of personal privacy, and with the recommendations in place taking a surreptitious video could get you sued. Journalists uncovering criminal enterprises are exempted from prosecution in the recommendations, as are carrier services like Google and Facebook when offending privacy-infringing content is posted on their social networks.
The last big update on privacy law from the ALRC came in 2008, so an overhaul of the system is overdue. Submissions on the current and proposed laws from interested parties are apparently welcome, with six weeks of open discussion on the topic.
The AFR talked to a University of Sydney law professor, who summarised the ALRC's proposals as reinforcing "the right to feel you can speak freely without someone keeping a record of it without your knowledge". New privacy laws across Australia kicked in on 12 March, giving citizens a more solid legal ground to ask businesses where they collected their customer data, to opt out of direct marketing from companies, and request access to any personal information held by those companies. [ALRC]