The Victorian Privacy Commissioner releases an Information Sheet on Surveillance and privacy

March 19, 2012 |

Acting Victorian Privacy Commissioner, Dr Anthony Bendall, today released an Information Sheet on Surveillance and privacy for organisations regulated by the Victorian Information Privacy Act 2000.

The Information sheet provides (without footnotes):

This Information Sheet applies to Victorian state and local government organisations that are bound by the Information Privacy Act 2000 (Vic), and want to use surveillance technologies to collect personal information about individuals and then use or disclose that information.

Surveillance technologies are now ubiquitous in modern society; closed circuit television cameras (CCTV) are the typically straightforward example. Surveillance is, however, a much broader concept, encompassing aspects such as:

?    listening (‘eavesdropping’) recording devices used to capture and listen to private conversations;

?    locational surveillance (such as the monitoring of location by Global Positioning Systems (GPS), mobile phones and smartcards);

?    mobile phone, Internet and email monitoring/tracking;

?    Radio Frequency Identification and Near Field Communication;

?    Automatic Number Plate Recognition;

?    satellite imagery;

?    unmanned ‘drones’; and

?    biometrics.

The introduction of many of these technologies has been justified on various public interest bases, usually that surveillance is used to protect the public or achieve a purpose which is for the ‘public good’. However, the increasing use of surveillance in combination with sophisticated data matching and facial recognition tools has resulted in the collection of large amounts of personal information which may impact significantly on individuals’ privacy.

Where a Victorian public sector organisation seeks to collect, use or disclose personal information collected via surveillance, it must ensure that it complies with the ten Information Privacy Principles (IPPs) in the Information Privacy Act. Organisations also have wider obligations under the Victorian Charter of Human Rights and Responsibilities, which includes a right to privacy.

Before implementing surveillance

“Personal information”

The Information Privacy Act only applies to “personal information”, which is defined as recorded information about an individual whose identity is apparent or can reasonably be ascertained. This means that an image, video or voice recording will be “personal information” if it can identify someone or their identity can be reasonably ascertained. For example, whether or not someone can be identified by the information will depend on the circumstances, such as the angle or quality of a photograph or video footage and whether it can be matched to other identifying information. Due to the high quality of most modern surveillance devices, in most cases, information collected via surveillance by Victorian public sector organisations will usually be personal information and therefore the collection, use and disclosure will have to comply with the IPPs.

Why does the organisation want to use surveillance? Is it necessary?

Before using surveillance technologies, an organisation needs to consider why it wants to use surveillance. IPP 1.1 states that an organisation should only collect information where it is necessary for a function or activity of the organisation. This means that collecting information about individuals via surveillance must be necessary for a particular function or activity, e.g. loss prevention or to ensure safety of staff. Before undertaking surveillance, organisations should be sure that the collection is necessary and not merely convenient or desirable.

Use of surveillance technologies should be proportionate to what is being achieved. For instance, one minor theft might not justify constant 24/7 surveillance. Other less intrusive security measures may be more effective. Organisations should weigh the use of surveillance against individuals’ reasonable expectation of privacy in public places.

Surveillance in a public space (such as the use of CCTV cameras) must be necessary, proportionate and justified; simply because it is a “public space” does not allow an organisation to use surveillance unless there is a legitimate purpose for it.

Conduct a Privacy Impact Assessment

Organisations should conduct a Privacy Impact Assessment (PIA) before implementing any surveillance technologies. Conducting a PIA allows an organisation to consider whether implementing surveillance is necessary, whether there are any negative impacts, and ways in which individuals’ privacy can be protected while still achieving the desired objective. Organisations are also encouraged to consult with Privacy Victoria on any proposed use of surveillance that could have a significant impact on the privacy of individuals. Where surveillance is proposed to be conducted on a broad scale, an organisation may also wish to consult with the public.

Victorian public sector organisations seeking to use external surveillance companies or agencies should ensure that those contracted service providers are also mindful of their privacy obligations under the Information Privacy Act.

Only collect information lawfully

An organisation must also only collect personal information by lawful and fair means (IPP 1.2), and not in an unreasonably intrusive way. A collection may be unreasonably intrusive where excessive or unnecessarily intimate information is collected, or where the collection occurs in a manner that unnecessarily intrudes into a person’s home life or unreasonably interferes with a person’s bodily integrity. For example, the use of biometrics to ‘clock on’ employees may be an unreasonably intrusive collection in some contexts.

Lawful surveillance – complying with the Surveillance Devices Act and the Telecommunications (Interception and Access) Act

Before implementing any surveillance, organisations should ensure that the implementation is lawful under other legislation.

Surveillance Devices Act

The Surveillance Devices Act 1999 (Vic) regulates the installation, use and maintenance of surveillance devices such as video cameras (CCTV), listening devices (such as a tape recorder) and tracking devices (such as GPS devices) in Victoria. For example, the Act restricts (among other things):

?   the installation, use or maintenance of a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation;

?   the installation, use or maintenance of an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity; and

?   the installation, use or maintenance of a tracking device to determine the geographical location of a person (without the express or implied consent of that person) or an object (without the express or implied consent of a person in lawful possession or control of that object).

There are exceptions to these prohibitions, such as where activities are conducted under a warrant or in certain contexts by law enforcement agencies.

To covertly monitor an employee for any purpose, a Victorian public sector organisation is likely to require an authorisation or court order under the Surveillance Devices Act. Outside of law enforcement contexts, there are likely to be very few instances where covert surveillance by a Victorian public sector organisation can be justified under the

Information Privacy Act as necessary or not unreasonably intrusive.

 

The Surveillance Devices Act also prohibits the installation of surveillance devices in

“toilets, washrooms, change rooms or lactation rooms in the workplace”.8

Failure to comply with the Surveillance Devices Act may be a criminal offence. Such collection of information may also be unlawful (IPP 1.2), exposing the organisation to liability under the Information Privacy Act.

Victoria Police are responsible for enforcing the Surveillance Devices Act, and suspected offences under the Surveillance Devices Act should be reported to Victoria Police.

Telecommunications (Interception and Access) Act

Intercepting telephone calls for certain purposes may fall under the Telecommunications (Interception and Access) Act 1979 (Cth). Section 7 of that Act prohibits the interception of a communication passing over a telecommunications system (except if an exception applies, e.g. if authorised by a warrant). As above, failure to comply with the Telecommunications (Interception and Access) Act may render a collection unlawful (IPP

1.2) for the purposes of the Information Privacy Act.

Anonymity

Keep in mind IPP 8, which states wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering into transactions with an organisation. For example, when employees legitimately use their work vehicles outside of work hours or on lunch breaks, they should have the option of turning off any GPS tracking if they are not using their vehicle for work purposes and this personal use is authorised.

This is also relevant to unnecessary collection of personal information under IPP 1.

Can the organisation use a privacy-enhancing technology?

Depending on the circumstances, there may be some technologies that allow individuals’ privacy to be protected while still achieving an organisation’s objective in implementing surveillance. For example, some CCTV cameras can automatically blur faces, and reveal identities only when needed (such as where unlawful activity has been identified).

Giving proper notice

Where a Victorian public sector organisation wishes to use surveillance, it should ensure that it gives appropriate notice in accordance with IPP 1.3. At or before the time of collection, an organisation should take reasonable steps to ensure that, relevantly, individuals are aware of the identity of the organisation collecting the information, why it is being collected and to whom it is usually disclosed.

This might involve visible and clear signs around surveillance cameras, or if installed in a workplace, notifying staff members of the surveillance, e.g. via workplace policies. A sign may, for instance, refer individuals to the organisation’s privacy policy, which should detail how the organisation collects personal information via surveillance. Other forms of surveillance may require different notice. In particular, the notice should indicate the purposes for which the information is being collected via surveillance.

Note that section 13 of the Information Privacy Act provides that it is not necessary for a law enforcement agency to comply with IPPs 1.3 to 1.5 (among other IPPs) if the law enforcement agency believes on reasonable grounds that non-compliance is necessary for the purposes of its law enforcement functions or activities. As such, a law enforcement agency will not be required to provide notice in situations where surveillance is necessary for law enforcement or where it would prejudice an investigation (such as covert surveillance).

An organisation’s use of surveillance should also be listed in its privacy policy (IPP 5).

Operating surveillance technologies

GPS, mobile phone and locational tracking

Global Positioning System (GPS) tracking is often used in industries which require employees to drive vehicles, by attaching a GPS device to these vehicles to track their location. Occasionally, it might also be used to track a person’s location by, for example, the person carrying a GPS-equipped device such as a mobile phone. Whether or not the use of GPS tracking is reasonable and legitimate will depend on the circumstances and why this information is necessary for the organisation’s functions or activities. As required by IPP 1.3, employees should be notified when GPS tracking will occur and why this information is being collected.

The use of GPS tracking is regulated under the Surveillance Devices Act (see above), which states that the express or implied consent of a person is required to install, use or maintain a tracking device to determine the geographical location of a person. The Surveillance Devices Act also prohibits the installation or use of a tracking device to determine the geographical location of an object (i.e. a vehicle, or a mobile phone) without the express or implied consent of the person in control of that object.

Modern smartphones usually contain GPS chips which, when turned on, capture the position of the phone and therefore the user. Even without a GPS chip, due to the way that phones connect to mobile cell towers, an individual’s position can be identified, or at the very least estimated. This information is likely to be personal information. As with GPS tracking, organisations that want to collect, use or disclose this information must comply with the IPPs, including ensuring that the information is necessary, not unreasonably intrusive, and that the individual is given proper notice that the information is being collected.9 Note, however, that the Information Privacy Act contains a partial exemption for law enforcement (section 13), which means that a law enforcement agency does not have to give notice under IPP 1.3 if it believes on reasonable grounds that non-compliance is necessary for, among other things, a law enforcement function or activity. As noted above, this will be relevant where, for instance, giving notice would prejudice an ongoing investigation.

Email and internet surveillance

Email monitoring

A Victorian public sector organisation may need to access an employee’s emails for legitimate purposes (for example, monitoring the business emails of an employee when the employee is absent). It may also need access to personal emails to ensure the email system is not misused. Using filtering software to avoid viruses or malware would also be permitted under the Information Privacy Act.

In any case, an organisation must give reasonable notice under IPP 1.3 to employees as to how information in personal emails will be monitored. Employers should have comprehensive policies on the use of electronic communications which are provided when employees commence work and which are readily available throughout their employment. The policy should specify the acceptable uses of its email system and the situations when the organisation may monitor email usage.

An employer’s use of email monitoring to monitor the personal use of email for no purpose other than curiosity will not be necessary (IPP 1.1) and may be considered unreasonably intrusive or unfair (IPP 1.2).

An example of this was seen in Complainant L v Tertiary Institution [2004] VPrivCmr 6, where the Complainant’s emails sent to and from a work email account were copied to the Complainant’s Manager without the Complainant’s knowledge or consent. The Complainant became aware of this when the Manager went on leave and the Complainant received an ‘out of office auto reply’ from the Manager to an email the Complainant sent to other work colleagues. The Complainant complained to the Privacy Commissioner about the monitoring of work emails by the tertiary institution. The complaint was eventually conciliated, with the tertiary institution apologising, agreeing to advise specified third parties of its failure to inform the Complainant of the monitoring, and giving an undertaking to review its ‘Use of Electronic Mail Policy’.

It should be remembered that the monitoring of employees’ email usage may also involve the collection of personal information about third parties. Employers should ensure that the collection of this information also complies with the Information Privacy Act and relevant IPPs.

Internet monitoring

A Victorian public sector organisation that wants to monitor employees’ Internet usage should apply the same reasoning as email (see above). An employer should only monitor employees’ usage where it is necessary to do so (IPP 1.1).

A clearly expressed policy which indicates when and how Internet usage will be monitored should be given to employees. For example, a policy may state that monitoring may occur at any time in order to investigate a suspected violation of the policy (or other organisational policies), to carry out maintenance, to monitor any unauthorised access to the network or to investigate security breaches. While IT administrators may be able to view anything that is stored on or passes over the network for business purposes, they should not abuse these privileges for other purposes such as satisfying idle curiosity about the activities of employees.

An additional web browser warning is a useful way of reinforcing and reminding staff of the presence of the electronic communications policy and that their browsing may be monitored, filtered or logged.

Again, there may be ways to achieve the organisation’s goals without using surveillance. These include installing tools to block employee usage of certain websites, thus reducing the need for surveillance.

After collecting information via surveillance

Use or disclosure of surveillance information

The Information Privacy Act allows an organisation to use personal information for the primary purpose, or reason, it was collected. An organisation can also use information it collects for a secondary related purpose that would be reasonably expected by the individual (IPP 2.1). If particular uses or disclosures are known to the organisation at the time of collection, they should be listed in the collection statement and the organisation’s privacy policy.

The Act also lists other permitted uses or disclosures, relevantly:

?   the individual has consented to the use or disclosure (IPP 2.1(b));

?   an organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities (IPP 2.1(e));

?   the use or disclosure is required or authorised by or under a law (IPP 2.1(f)); or

?   the organisation reasonably believes that the use and disclosure is necessary for the prevention, detection, investigation, prosecution or punishment of criminal offences by a law enforcement agency (IPP 2.1(g)(i)).

An organisation may want to notify Victoria Police or another law enforcement agency where information collected via surveillance indicates unlawful activity. An organisation has to reasonably believe that the use or disclosure is reasonably necessary for the law enforcement agency to investigate the offence or prevent seriously improper conduct. Where an organisation uses or discloses personal information under IPP 2.1(g), it must make a written note of the use or disclosure (IPP 2.2). Organisations should be careful in disclosing this type of information outside of law enforcement agencies, as the disclosure of surveillance material in other circumstances (for example, on the Internet) may breach the Information Privacy Act.

Securing information

Information collected from surveillance is likely to be personal information. An organisation therefore needs to consider how it stores and secures that information. IPP 4.1 states that an organisation must take reasonable steps to protect personal information it holds from misuse and loss and from unauthorised access, modification or disclosure. For example, this may mean ensuring that only certain people have access to the information, monitoring access to the information via audit trails and storing information in encrypted formats.

An organisation should also ensure that surveillance devices are kept secure, as modification or tampering may lead to compliance issues under IPP 4.1.

Data quality

An organisation must take reasonable steps to ensure that information it collects, uses or discloses is accurate, complete and up to date (IPP 3). This may mean regularly servicing and testing surveillance devices to ensure their accuracy. Data quality is relevant where the technology is not exact. For example, GPS tracking device may not operate in certain circumstances (such as when the tracking device is underground). An organisation should also consider whether the location and movements of a vehicle can be accurately attributed to the particular individual.

Auditing the use of surveillance

An organisation should audit its use of surveillance regularly and continually assess the suitability of its practices to ensure that the surveillance is achieving the purpose for which it was implemented.

Access and correction of surveillance information

Where surveillance information is held by a Victorian public sector organisation, individuals may be able to access such information via the Freedom of Information Act 1982 (Vic). If the information is held by a contracted service provider to a Victorian public sector organisation, such access may be permitted under IPP 6. IPP 6 states that if an organisation holds personal information about an individual, it must provide the individual with access to the information on request by the individual unless an exemption applies.

Destruction and de-identification

Under IPP 4.2, an organisation must take reasonable steps to destroy or permanently de- identify personal information if it is no longer needed for any purpose. Organisations should consider the length of time it keeps surveillance footage or information and any destruction schedules that may apply, while ensuring that it complies with the Public Records Act 1973 (Vic). However, information should not be kept on file ‘just in case’.

Use of surveillance by individuals

One increasingly common use of surveillance is for security purposes in the home. Security cameras which are used to monitor an individual’s property can, however, capture images and video of neighbours, or may be directed onto someone else’s property. A person whose neighbour’s security camera encroaches onto their property may feel aggrieved and believe that the installation of such a device is a breach of privacy.

The Information Privacy Act does not apply to individuals acting in their own capacity. Current privacy laws in Australia do not place obligations on individuals to act in a manner consistent with privacy legislation. However, the use of some surveillance technologies in certain circumstances may be an offence (such as harassment or stalking), or be unlawful use under the Surveillance Devices Act. If concerned about surveillance, individuals are encouraged to contact Victoria Police or seek independent legal advice.

Surveillance and Privacy Checklist

?   Surveillance should be proportionate, necessary and not unreasonably intrusive.

?   Organisations should conduct a Privacy Impact Assessment (PIA) before implementing surveillance.

?   Organisations must comply with other laws in addition to the Information Privacy Act, such as the Surveillance Devices Act and the Telecommunications (Interception and Access) Act.

?   Allow individuals to remain anonymous where lawful and practicable.

?   Consider whether there is a privacy-enhancing way that surveillance can be used or implemented.

?   Give proper notice to individuals at or before the time of collection, including listing intended uses or disclosures in the collection statement and privacy policy.

?   Only use or disclose information collected via surveillance for the primary purpose or a secondary related purpose that would be reasonably expected by the individual, or where another permitted use applies (such as a disclosure to law enforcement).

?   Take reasonable steps to ensure security of information collected via surveillance.

?   Take reasonable steps to ensure that information collected, used or disclosed is accurate, complete and up to date.

?   Audit uses of surveillance regularly and continually assess the appropriateness of its use.

?   Destroy or de-identify information collected via surveillance when it is no longer needed for any purpose.

The Information Sheet explains that the Information Privacy Act does not apply to individuals acting in their own capacity. Current privacy laws in Australia do not place obligations on individuals to act in a manner consistent with privacy legislation.

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