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Roger ClarkeXamax Consultancy, Canberra

Visiting Professor in Cyberspace Law & Policy, UNSWVisiting Professor in Computer Science, ANU

Chair, Australian Privacy Foundation (APF)Advisory Board Member, Privacy International (PI)Secretary, Internet Society of Australia (ISOC-AU)

http://www.anu.edu.au/Roger.Clarke/......../DV/SDS-1301 {.html, .ppt}

CPDP – Brussels – 24 January 2013

State Surveillance and Its Governance

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State Surveillance and Its Governance

AGENDA

• Categories of Surveillance

• PoV Surveillance as an Example

• Governance Principles for State Surveillance

• How to Get Them

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Categories of Surveillance

1. Behavioural Surveillance (Observation)

2. Communications Surveillance (Interception)

3. Dataveillance

4. Location and Tracking Surveillance

5. Body Surveillance

6. Experiential / Attitudinal Surveillance(Reading, Associations)

∑ Combined, Omnipresent and/or Omniscient 'Überveillance' ==> Emergent Omnipotence?

http://www.rogerclarke.com/DV/FSA.html

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State Use of the Categories of Surveillance

1. Physical Surveillance• Unaided watching and

listening – eyes and ears• Aided by technology, incl.

telescopic lenses, directional microphones, triggers

• Recorded

2. Comms Surveillance• Eavesdropping• Traffic Interception• Access to Stored Traffic• Reading, eExperiences

3. Dataveillance• Consolidation, Matching,

Warehousing, Mining• Profiling• National Id Schemes• Spyware, Hacking

4. Loc, Track Surveillance• Transaction Trails, Bug-

Planting

5. Body Surveillance • Anklets, Implants

6. Experiential / Attitudinal Surveillance

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Point-of-View SurveillanceBase 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

http://www.rogerclarke.com/DV/PoVS.html

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PoVS Technologies Extensions to achieve a Looser

Definition• Person-Attached Device, other than to the

heade.g. shoulder-strap, belt

• Person-Held DeviceMay be held at the eye, or in front of the eye, but may be held low, held above the head, etc.

• Personal-Device-Attached Devicee.g. on a baton, taser, pistol

“... 55,000 minicameras mounted on Tasers ... ” (NYT Advertorial, 21 Feb 2012)

• ...

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Not-but-Near-to PoVS Technologies

• CCTV and OCTV:• 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

• ...

http://www.rogerclarke.com/DV/PoVS.html

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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

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Disbenefits and Risks of PoVS – 2• Retrospective Use:

• Suspicion-generation• Mapping of Social Networks• Guilt by Proximity

Revival and extension of Consorting Crimes

• Behavioural S || Comms S || Dataveillance

• Real-Time Use: Plausible criminalisation based on identity, location, video footage (and comms?)

• Predictive Use: Plausible criminalisation based on intention inferred from observed behaviour

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Law Enforcement And Nat Sec Agencies (LEANS)

Inherent Scope to Avoid Controls

• Necessary Delegation to Police of the decision to use force, and to arrest

• Magistrates’ courts favour police evidence• LEANS may provide the only PoVS feed

that is available to an investigator or court• Failure to impose independent controls

over illegal police behaviour

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LEANS – Additional Rights and Constraints

Examples from Surveillance Devices Act (Cth)

• 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” (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)

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Sur cf. SousSurveillance (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 (sous = below)

• Person-centric• Looks up from below,

less org’d, 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

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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 person’s 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

http://www.rogerclarke.com/DV/POVSRA.htmlhttp://www.rogerclarke.com/DV/LTMD.html

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Actual Counter-PoVS PowersUnder Australian and NSW Laws

• Major Events (Olympics, Gx, APEC, CHOGM, ...)APEC Meeting (Police Powers) Act 2007 (NSW)

• Self-Authorised Special Powers – LEPRALaw 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

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Counterveillance Principles

1. Independent Evaluation of Technology2. A Moratorium on Technology Deployments3. Open Information Flows4. Consultation and Participation5. Evaluation / Surveillance Impact Assessment6. Design Principles ==>7. Review Against Those Principles8. Rollback

http://www.rogerclarke.com/DV/SReg.htmlhttp://www.rogerclarke.com/DV/RNSA07.html

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The Regulation of Surveillance – Design Principles

1. Justification2. Proportionality3. Openness4. Access Security5. Controlled Use6. Controlled Disclosure7. Controlled Publication8. Non-Retention and Rapid

Destruction9. Review10. Withdrawal

http://www.rogerclarke.com/DV/SReg.htmlhttp://www.privacy.org.au/Papers/CCTV-1001.html

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State Surveillance and Its Governance

AGENDA

• Categories of Surveillance

• PoV Surveillance as an Example

• Governance Principles for State Surveillance

• How to Get Them

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Standards Documents

• International Telecommunications Union (ITU, since 1865)

• Institute of Electrical and Electronics Engineers (IEEE, since 1884/1912/1963)

• International Organization for Standardization (ISO, since 1947)

• Internet Engineering Task Force (IETF, since 1986/1992)

• British Standards Institution (BSI, since 1901)

• US Govt National Institute of Standards and Technology (NIST, since 1901)

• American National Standards Institute (ANSI, since 1916)

• Deutsche Industrielle Normen(DIN, since 1917)

• Standards Australia (SA, since 1922)

Origins in the Engineering Professions, esp. Construction

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The Politics of Standards• Institutionalisation and Scale• Influence = ƒ( Meritocracy / Technocracy )• From Volunteer Professionals

To Corporations, Government Agencies, Industry Associations

• Consumers / Citizens / Reps / Advocates ??

• Influence from muted to nil, due to:• Dominance of

Meritocracy/Technocracy• Dominance of Corporate Power• Limited Resources for Analysis, Travel

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So ... Civil Society Standards Documents

• An alternative voice to the documents that are published by and for industry, and by and for governments

• A counter-balance tothe power of industry and governments

• An antidote to civil society's exclusion / weak voice in industry standards processes

• Public Expectations:• Articulated• Communicated• Available in Advance

• Benchmarks:• Established• Applied by Civil

Society• Applied by Others

• Protection of the public from badly conceived projects

• Assurance for investments both public and privatehttp://www.rogerclarke.com/DV/CSSD.html

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How To Get Governance• Promulgate Standards• Hammer Home the Absence of Governance

• Evaluate Against Those Standards• Expose, and Exploit Embarrassment

• Media Backgrounders• Media Releases• Formal Reports by Civil Society

• Build External Coalitions of Interest• Anonymity is needed by Undercover Operatives• Location and Tracking Threatens Marketing,

Strategy and Merger&Acquisition Execs

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Roger ClarkeXamax Consultancy, Canberra

Visiting Professor in Cyberspace Law & Policy, UNSWand in Computer Science, ANU

Chair, Australian Privacy FoundationAdvisory Board Member, Privacy International

Director, ISOC-AU

http://www.anu.edu.au/Roger.Clarke/......../DV/SDS-1301 {.html, .ppt}

CPDP – Brussels – 24 January 2013

State Surveillance and Its Governance

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TheBlurring

of

Speculative

Fiction

and

Reality

QuickTime™ and aTIFF (Uncompressed) decompressor

are needed to see this picture.

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Dimensions of Surveillance

1. Of What?

2. For Whom?

3. By Whom?

4. Why?

5. How?

6. Where?

7. When?

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General Rights to Use PoVS• On the Person’s Own Property

• A general right, subject to provisos• On Other People’s 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?

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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 People’s 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’• magistrate’s authority for covert

surveillance

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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 offenceBut, in NSW, deleted in 1995 (s.580B of Crimes Act)

• ?Direct action by the subject of the surveillance; butprotections are for PoVS’ers rather than the aggrieved

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State Surveillance and Listening Devices Acts

Vic, WA, NT (1998-2000)& NSW (2007), Qld

Surveillance Devices ActsProhibition 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, ACT1971, 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

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Unenforced Laws

QuickTime™ and aTIFF (Uncompressed) decompressor

are needed to see this picture.

Candice Falzon & Sonny Bill Williams – April 2007Apparently 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

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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 agenciesLarge corporationsIndustry associations

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QuickTime™ and aTIFF (LZW) decompressor

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

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Uncontrolled Use of Such Laws in Australia

• December 2008 re Nick Holmes a CourtCamera-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-journalisthttp://www.couriermail.com.au/police-snatch-blackberry/story-fna7dq6e-1111118412772

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

QuickTime™ and aTIFF (LZW) decompressor

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Precepts• Terrorism is not new and nor is it unusual• Although the 'power to weight ratio' of a single strike

has increased (because fewer terrorists can deliver a bigger payload), this does not have particularly significant implications for public policy

• Reactionary extremism must not be accepted at face value. National security and law enforcement interests cannot have carte blanche to do what they say needs to be done in order to counter the threats

• Secrecy is not a necessary pre-condition of Security• It is not legitimate to treat Public Safety issues as

though they were National Security matters• A single State identity does not stop 'virgin terrorists'

http://www.rogerclarke.com/DV/RNSA07.html

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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)

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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

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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

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Media Use of (PoV) SurveillanceControlled 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

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Australian Privacy Foundation (Sep 2009)

Policy Statement re Visual Surveillancehttp://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

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Australian Privacy Foundation (Sep 2009)

Policy Statement re Visual Surveillance

http://www.privacy.org.au/Papers/CCTV-1001.html

3. Openness / TransparencyCovert requires formal, specific and bounded legal authority, issued by an independent judicial institutionOvert, in private space and in public spaces where a reasonable expectation of privacy exists, <ditto>, and must disclosed and clearly notified Overt, in public spaces, must be disclosed, clearly notifiedIn all cases, any identifiable data arising, under any circumstances, must be treated as personal data under data protection laws