Australia's New Privacy Law Proposals May Kill Off Google Glass

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]


Comments

    Pretty sure recording audio without someone's permission already is illegal. However the video recording, like that of CCTV doesn't fall under the same regulation. As always, the laws will take some time to catch up to technology.

    Let's just hope the politicians don't slam down the ban-hammer on something they don't fully understand.

      I'm pretty sure any phone conversation you must make the other party aware that they are being recorded prior to commencing dialogue. I heard this when working in the Call Centres and we ran over privacy law.

      Actually it depends on the state, there are surprisingly very different laws surrounding recording audio, in Victoria for example a conversation can be recorded where "one" party is aware of the intent to record.

        Correct, in Queensland a minimum of 50% of the participants in a conversation must be aware of the recording. Whenever police in Queensland approach you, they are already recording.

        It is more to do with the Commonwealth communications act with recording audio and telecommunication interception. Remember that Commonwealth law overrides State legislation (you just need deep pockets to challenge).
        In most cases you can record visual (video) on public land, however private land and public land like change rooms and similar places could be off limits.

      "Let's just hope the politicians don't slam down the ban-hammer on something they don't fully understand."

      C'mon man, this is our politicians we're talking about. When have they ever done that? *coughNBNcough*

        This is the law reform commission, which is totally independent of government. Understand how the process works before assuming anything and commenting on something you don't fully understand

        Last edited 31/03/14 8:21 pm

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          But spot on with the things I don't understand bit. I must hit the Googles and learn.

    So long as it is written that laws must be contextual to situations where said parties feel they were violated and rather than just doing the act is a crime in of it self. As a loose example would be maybe a parent or child at a club sports game wearing prescription Google-Glasses and wishing to record their child or the child wishing to record their play. That would contextually I believe be legal. Now if it were a A-league private club that sells merchandise than they may ban such devices and in that case it would be illegal. Either way we definitely need an update to our laws.

    Crooked cops would have a field day with updated laws surrounding surveillance.

    Crap. I do this on my motorbike with a Drift HD action camera. Particularly when I'm recording myself yelling at cagers for attempting to murder me. Guess I'll just have to make sure I get their permission to record before calling them a knob jockey.

      I'm not sure but I think in a public place where there's no reasonable expectation of privacy, pretty much everything is fair game for recording? At least, that's the impression I got from the Photography 101 in journalism.

    Yes well done Government, another step backwards.. Again

      Did you actually read the article, or just part of the headline and jump to a stupid conclusion? The law reform commission is independent of government. They do the research and then advise the attorney general on law reformation. It's then up to the government to adopt or pass on any new laws.

    it's super rich coming from Australian govt. considering they done the "unlawful surveillance" on recent events towards Indonesian govt.

      This is the law reform commission, which is totally independent of government. Understand how the process works before assuming anything and coming off looking like a fool.

        Lol. Says the one who actually "understand" how the process works. Do some more research on who in the so-called "independent" law reform commission that is driving things around.

    Would personally love this. I'm dreading a future where every Tom, Dick and Harry (but mostly Dicks) have Glass or anything like it. People here are so strange. They're constantly harping about privacy and then when the government proposes a way to help secure that, it's a case of 'Oh no he di'int!'

    I am as engrossed in tech as it comes, but to me Glass is just a tool for creeps and perverts. Walking past the showers at a beach and a tdler is showering nude? *Wink*. Rooted Glass makes for a very easy and subtle capture.

    Last edited 31/03/14 5:06 pm

    This just because the politicians and police don't want to be caught out by the public with a camera phone. Imagine going to court and calling bullshit on a police man and pulling out evidence captured on your mobile phone. They are shit scared of that.

      You can record police activity currently and the proposed changes make no change to that. I know you like to take every opportunity to whinge about police, but try to at least keep it relevant.

        You have to alert the police that you are currently recording them. They will just take your phone off you.

          Do you have a reference to legislation about that? As far as I know you can film police in any public area without notification or explicit consent.

            I know they don't like it when they pull you over and you start taping them. Tried that. They weren't impressed and told me to turn it off in no uncertain terms. I also know they lie quite often in court to suit themselves. It's happened quite a few times to me but that was back in the days phones had real crap cameras or none at all. Now we have the technology to tape them without them knowing but I'm pretty sure the judge wouldn't allow that as evidence. Had a lot of bad experiences dealing with cops. I was always (mostly) innocent but my friends were bikies, drug dealers and users and bank robbers. So the cops thought I was up to something as well so they would hassle me constantly. Even got raided three times in one night. If they saw me driving down the road I knew to pull over because they would always do a u turn and pull me over and hassle me. I kept telling them that I knew these people before they turned to crime and they always treated me well, so I just saw them as friends. What they did on their time had nothing to do with me. The cops and D's just couldn't work it out. But that was another time and place and I moved to Melbourne. And low and behold. Just because I had a beard and drove a SA registered car. The cops here swarmed all over me. Would get pulled over 6 times a day in St Kilda (car loads of cops every time. It was quite funny really. 5 cars all with sirens going and I was just sitting in my car waiting for the post office to open ) so I ditched the car and I've been off the radar ever since. Well mostly anyway. Needless to say, I don't like the police much. Respect the job they do and I'm always polite but I don't like them.

    This is potentially treacherous territory.
    While there obviously does need to be some clarification of law so people actually understand it, it's imperative that we don't end up with some totalitarian situation driven by angry fear mongers and those who would accumulate the power to record in the hands of a few.
    As a photographer of people I can tell you that there are a segment of people out there who incorrectly presume to "know the law" in a way that I can only describe as fear driven, often ludicrously ignorant, and almost entirely self-serving. The same people that most often come across as being seriously trust-damaged, and therefore acerbically hostile to various otherwise very reasonable freedoms. The same people who sometimes angrily fixate on things they perceive from a frighteningly dark and paranoid perspective, and are prepared to ceaselessly and forcefully lobby politicians, and mislead the public in general through fear and doom-saying.

    Australia's laws are generally very well considered, and most importantly: *generalised* enough that regular people can recognise them as reasonable and self-apparent in maintaining civility.
    We should always remain vigilant to prevent a prematurely over-complicated legal system. Because that generally leads to a situation where the deepest pocket with the sharpest lawyers wins. Not necessarily the meritorious or reasonable.

    In an era when communication, situational awareness, and simulation tools will merge and begin to radically change the way humanity thinks and lives, it would be worse than criminal to unreasonably limit how we can record.. how we see and remember or work, our lives... our Simulacra and Simulations.

    Yes there need to be guidelines, and some specificity as to what's ok and what's not, but I am pretty sure we have a lot of it covered in law already.
    ie: Nothing lewd. Nothing where privacy is expected; given that 'private' is the opposite of 'public'. Where the owner of a 'private' space can so 'no' to things, and in general people can consent to who is hearing, and may repeat, what they say.
    Common sense. Like the way people generally understand that it's not right to silently eavesdrop on a private conversation. Potentially damaging to repeat something told in confidence. Unreasonable to be angry because someone looked at you.

    Curtailing the methods and tools of human advancement, based on fear of what "bad people might do" is never the intelligent path. Neither does the squeaky wheel always take us in the useful direction.

    I can truly foresee a technology emerging from all the surveillance technology so many are concerned about. A scrambler that will disable these sorts of recording devices that literally render them useless.
    For those creative minds out there. This could be a very lucrative industry just as internet privacy is growing.
    Thank You

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