Mark Corcoran interviews Timothy Pilgrim Australian Privacy Commissioner.

Transcription

1 1 Foreign Correspondent. Mark Corcoran interviews Timothy Pilgrim Australian Privacy Commissioner. Q What s your perspective on the significance of this emerging technology, UAV or drone technology, as it s been called? A. I think the introduction of these technologies are really quite an interesting challenge for the community as a whole. We can certainly see that there are benefits from this technology like there are with many new technologies, this could be through assisting where there s disasters or or injury to people trying to find people so there are some really useful benefits there, but they also introduce the ability for anyone now given that they re easily available and relatively cheap, to go out and purchase this type of equipment which does have some very high definition camera equipment on it so it could be filming anybody. And there are issues here about what are the limits we need to set as a community around the use of this technology when it has the potential to be quite invasive. Q So what laws are currently in place? Both federally and at state level to regulate, to control the invasive nature of this technology? A This is a question I think needs to be dealt with at a number of levels of government at the federal level and at state and territory level because as I start to look around the country there are a range of laws that exist but I m not sure whether any one of them or all of them are actually going to be able to provide the right level of protection for people s personal information. For example the Federal Privacy Act covers the activities of large Commonwealth government agencies and also much of the private sector. So it applies to organisations. What it doesn t apply to is the activity of individuals within their own home. So if your neighbour for example was to go and purchase one of these and start flying it around your local street, and you thought that was an invasion of your privacy, it s not a situation that the Federal Privacy Act would cover, and similarly it would be unlikely that any of the state or territory privacy acts would cover that. We then need to look at what other laws are there? Now in a number of the states and territories there are some surveillance laws but these generally aren t consistent and there would be questions I think at the end of the day whether they would be applicable in the situation of this new sort of technology so I think it s incumbent now upon government at all levels to start looking at their laws to see whether they will be sufficient to do the job in terms of regulating the use of this new sort of technology. So I would be calling upon governments again at all levels to start having a look at those laws in the, in the context of this new type of technology. We did have a a case that was brought to our attention a couple living in the southern suburbs of Sydney who had a neighbour who put surveillance cameras around their house, around the neighbour s house and one of those cameras filmed into these people s backyard and as I understand it, the couple have been unable to find a law that can prevent that happening. Certainly as I aside the Federal Privacy Act wouldn t come into place and it would look like none of the surveillance laws in New South Wales are applicable either. So in the circumstances we re dealing with here of, let s call it a traditional type of surveillance camera that you may see, affixed camera, if the current laws aren t necessarily able to deal with that,

2 2 then I would have my doubts whether they re going to be able to deal with a new type of technology that is as mobile as these drones are. Q In this day and age with technology, not just drones but also with high performance cameras, how do you define a reasonable expectation of privacy? A That s a really interesting question and many of us have a different view about what constitutes an invasion of our privacy and I think it comes down to a point that when each of us go home, we go home to relax and we go home to have our own space around us and to be able to control what happens in that space and I think the majority of us would believe that is the case. So if we had a scenario which is not impossible that you could wake up one morning, pull open the curtains of your windows and confronted with a piece of equipment that could be filming in and filming at quite a high level of definition what s going on in your house, I think most of us would say that constituted a breach of our privacy and we would expect to be able to have that stopped and get some remedy if it continued and again I m not quite convinced that we do have the necessary laws around at the moment that can help us in that situation. Q You pointed out shortcomings in terms of there being nothing to stop an individual under existing law putting a drone over a neighbour s backyard for instance, what are the current rules regarding media and if media were to deploy these devices? A In the context of the Commonwealth Privacy Act there is actually an exemption for the activities of media organisations in the course of journalism so the Federal Privacy Act does not cover organisations, so it does not give an avenue for people to complain about media organisations collecting their personal information. However, the Australian Communications and Media Authority does have a series of codes of practice for example that much of the media have to comply with so it may be possible that some of those codes would be applicable in this situation. Q What is your level of concern or discomfort over the rate of technological development of civilian drones and the ability of of government society to control, to regulate this technology? A Well I think it s like all technology. It s basically benign to start with. It s how it s used that poses the problem and when we get to the situation where it s going to be misused we as a community then need to determine where is the balance in how we want to see this sort of technology used. You ve got the example of where it can have great benefit for the community in case of just helping out in disasters, finding lost people, but we don t expect as a community to have our own personal space invaded through the ability of one of our neighbours to be able to have a a drone flying up and down the street filming into each other s houses. There s also potential too for it to be misused by criminal elements. This may not be far-fetched to consider that someone could start staking out streets by using one of these drones if they're not appropriately um regulated in some form. So we have to have the debate about what is the right level of regulation. Q You mention a public debate on this, does it need to be more formalised? Does there need to be some sort of inquiry? What, mechanism should be used to thoroughly assess and investigate drone technology?

3 3 A Well I ve written to the Commonwealth Attorney General and suggested that this matter could be put on the, agenda for the group that meets regularly of all the state and territory and commonwealth and New Zealand Attorneys General to decide whether that needs to be looked at in a wholistic view and perhaps have some project done to determine whether or not their laws at all levels of government are applicable to this sort of technology. Q And has CASA been consulting you in terms of their evolving regulation reform which they re in the middle of at the moment? A No I haven t been approached by CASA at this stage. Q I guess there s already an argument that you have helicopters, Google Earth, Google Street map, high technology cameras. How do you respond to the argument that this privacy debate is over it s basically been lost by virtue of the technology that s out there now? A I would suggest that it s not an issue that that s been lost. It s one that stays firmly at the forefront of people s minds. If we look at for example there was a statement made in the late 90s by a senior business person that privacy is dead and we should all get over it in the online world. I think what we re seeing and it s certainly supported by the number of approaches we get to our office, that the more and more people deal up on line the more and more they re starting to be aware about their information being collected and are starting to ask questions about well why is this happening and how is it going to be used? If we go back to the introduction of Google Streetview, we had many, many calls to this office from people concerned about the fact that their houses were having, ah were being photographed by Google Streetview. Now at one level you could say well it s a photograph of a house. It wasn t necessarily the photograph of people and in fact we worked with Google at the time and they agreed that they would pixilate any people s faces, they would pixilate the numberplates of cars so they couldn t be identified and this was in response to people s concerns about their privacy being invaded by that technology. We ve seen it again and I m sorry to focus on Google but more recently there were some significant changes to Google s privacy policies which started to highlight just how much information could be collected through the various platform Googles used such as their search engine, their G mail, YouTube and how they could build up profiles on individuals. This caused actually quite a lot of activity around the world with concern about people saying well until now we didn t realise that this much information was being collected. So I think what we re starting to see is changes in the community s expectation again of what will happen with their personal information because they re becoming more aware and that s starting to be reflected through the laws in Australia. We are currently going through a law reform process to tighten the Privacy Act in response to people s concerns about how their information s being collected and that process has passed the House of Representatives only last night so we are seeing governments starting to take a legislative response in in areas to strengthen privacy laws. Q Just last week I saw a published US Congressional Research Service Report looking at implications of privacy on domestic surveillance and this report raised concerns over thermal imaging, soft biometrics, the ability to identify particular faces, number plates all those sorts of issues- by police and that raises the question of if police forces or security services use drones, should that be an activity conducted under warrant rather than just general security vision?

4 4 A Well this is, this gets into a much broader debate about what we as a community expect in terms of our safety and our protection and when we re dealing with the collection of personal information, starting point is that privacy can t be an absolute in the sort of society we live in. On the one hand we do expect to have a safe society, so we do expect law enforcement agencies to be able to undertake their legitimate activities and that includes undertaking investigations and searching. I think though when we do see law enforcement agencies being able to access new technologies, we do need to take a step back again and say that it may be timely again to review the laws that that regulate those investigations and make sure that they re dealing with are able to deal with how these new technologies are being employed and then review those laws against the new technologies. Q For instance with the police operating a drone, putting it over a suspect, two metres over the backyard barbecue. Should that be an activity conducted under warrant or is it just part of a reasonable surveillance operation as is conducted now by helicopter. When you get that up close and personal where do you draw the line? A Well one of the considerations with any sort of investigation is are you just collecting information about the suspect, whose other information are you collecting as part of this? So I think there would be a legitimate debate to have around with the use of this technology about whether it s going to be so much more intrusive it does need to have the authorisation by a warrant, judicial warrant for its use, particularly when you start to get into the situation where this sort of technology and this happens with other investigations at the moment using more traditional types of technology, that you can inadvertently collect the information about the third parties who may not be part of the investigation at all. So when we start to get into that area we do need to look at whether or not one should be issued as part of using that sort of technology. We need to have a debate about the proportionality and that s where we start to get into the area of introducing potentially new laws that need to be reviewed by parliament to say that we are going to have this debate and it s going to be a transparent debate about the use of this sort of technology and allow for there to be community input into it and I think as we start to see the potential for vast amounts of information to be collected through technologies like this, I think we need to have a fairly open and transparent debate about it. Q And you think a meeting of the premiers and attorneys general is the best forum to conduct that? A I think a starting point is to have the Commonwealth and Territory Attorneys General have a look at the existing laws and say yes we think for these reasons they can do the job or no they can t and to the greatest extent possible, have a consistent set of laws that allow people to know that their personal information would be put protected. Q Just specifically relating back to journalists and applications by the media of this technology, what are your views on that? Do you, think the media will act responsibly in applying this technology or do you have concerns that we re going to see more paparazzi style activity? A Given the ease of availability of this equipment, this technology and it being fairly cheap to buy as well, I do have some concerns about how it will be used broadly across the community. We have all of us I think seen different examples of where some photo

5 5 journalists have possibly over stepped the mark in terms of collecting photographs of famous people so I think we need to be careful about how this new technology is going to be applied because if you consider that you can take a photograph a kilometre away of someone and it s quite clear and identifies them when they are otherwise thinking that they re having a private moment, when you have a piece of technology that you can control and fly to within feet of an individual then I think we need to take a really hard look at that as a community and say what are our expectations around the privacy of that personal information? Q How effective do you think self-regulation will be, industry based or professional based self-regulation would be, compared to a regulatory framework? A I think we need to have a look at our current regulatory frameworks in terms of this technology potentially. the Australian Communication and Media Authority has a role in terms of developing codes of practice for media organisations and it may well be time for them to consider whether those current codes would cover the use of this particular type of technology. As I said the Federal Privacy Act has an exemption and therefore doesn t cover the activities of journalists or media organisations. Q I get the impression that this is all very new for the community. There s fascination and fear seemingly in equal parts, but how much do you think regulation will be framed by public opinion? On the one hand you could have a drone involved in the rescue of someone on a beach by lifeguards, on the other hand you could have one fly into the engine of an Airbus on take-off at Mascot. How big a factor is public opinion in framing regulation on on an issue like this? A I think public opinion will play a very important part in this because I think a community always remains concerned about the protection of their personal information and their privacy. Equally they re concerned about their safety so they will be wanting to see the lawmakers, they will be wanting to see different levels of government treat this seriously and weigh up the important balances about how these technologies can be used. Q there is still concern out there about the fact that it s very difficult to regulate, to enforce that given the extent, the proliferation of the technology it seems almost impossible now given, given how far it s spread, how quickly it s spread. Can you control it? A Well these will be questions that have to be answered in terms of what regulations if any governments decide to put in place. It could be for example that each of these bits of equipment may need to be registered at the point of purchase for example. I m not saying that will be the outcome but that could be one way of trying to understand who actually has them so when we re starting to look at technologies such as these drones that can have very high powered cameras in place, it may be an issue that the community says well given the potential for them to be so invasive we do need to have a regulation system. We ve seen for example governments introduce laws to prevent the sale of certain types of laser pointers because they were found to be potentially dangerous, people shooting them into the eyes of pilots trying to land planes. We made the decision as a community that this was a particularly technology that presented a particular threat to safety and the decision was taken to introduce regulation to prevent the sales of certain types of those. This may be another area where we start to see not necessarily them being stopped from sale, but some form of regulation which may require registration of that purchase.