Peter A Clarke

Today the World Today, on ABC radio, had a long and quite in depth discussion involving David Vaile, Timothy Pilgrim and Ashley Hall on privacy issues.  It covered well trod ground but it is nevertheless a worthwhile analysis. It is found here.

It provides:

ASHLEY HALL: In the past few weeks, the notion of privacy has been at the forefront of several stories making news.

The publication of obscene text messages exchanged between the former speaker Peter Slipper and his staffer, James Ashby has many people wondering what would be the consequences, if their own messages were made public.

As well, privacy concerns have been raised over the promise to install more CCTV cameras following their use in the search for the alleged killer of the Melbourne woman, Jill Meagher.

And some supporters of the broadcaster Alan Jones have argued his offensive comments about the Prime Minister’s late father should not have been reported, because the function where they were made was private. That is a point in dispute.

So when and where can you rely on the rights to privacy?

To discuss this question, I’m joined in the World Today studio by the Australian privacy commissioner Timothy Pilgrim.

Also David Vaile, the vice-chair of the Australian Privacy Foundation. David’s also the executive director of the University of New South Wales’ Cyberspace Law and Policy Centre.

And Rod McKemmish, the national head of PPB Advisory’s forensic technology practice, who’s come to prominence because of his work retrieving those text messages I mentioned before.

Thank you for joining us gentlemen.

Timothy Pilgrim, let’s stake out some of the ground first off. None of us really expect our text messages to be revealed to the public. Are they ever in fact private?

TIMOTHY PILGRIM: We need to be really careful about what we are putting into our text messages because there are means by which they can be retrieved and can be seen by other people.

Some of those may be legal reasons, such as if there is an investigation underway and police get warrants or other powers to be able to access that but more and more we are seeing different types of technology being able to be hacked into and seen, and I think for that reason we all need to take a step back and be a little bit more cautious about what we are starting to put out there.

ASHLEY HALL: So not just the legal reasons but the chance there might be someone with evil intent looking for it too?

TIMOTHY PILGRIM: That’s right. There are a lot of people out there with malicious intent who are wanting to get hold of our personal information, not just through our mobile telephone services but also online so, I think we need to be careful about what we are putting out there.

ASHLEY HALL: So that’s emails, phone calls as well?

TIMOTHY PILGRIM: It can be emails, it can be phone calls but also more and more we are seeing people post some amazing bits of personal information onto social media, and assuming in many cases that that’s fairly safe and fairly private, but I would urge a lot of caution to say that it may not be as private as people think.

ASHLEY HALL: Well, people often talk about having an expectation of a right to privacy. Is there any such right as such and where would it come from?

TIMOTHY PILGRIM: Well, in Australia we don’t have what’s termed a right to privacy. That is something that has been put forward in an issues paper last year by the Australian Government. We do have various bits of law around the country at different levels of government that can control to a certain extent what different organisations, government agencies can do with your personal information.

For example I’m responsible for the Federal Privacy Act and that controls how private sector organisations and Federal Government agencies can collect and use your personal information and should something go wrong I can investigate that and handle individual complaints.

ASHLEY HALL: David Vaile, under what circumstances do you think text messages, emails, phone calls should be kept totally private?

DAVID VAILE: Well, let’s go back one step and say can they be kept totally private.

ASHLEY HALL: Okay, can they be kept?

DAVID VAILE: And I think we’ve got an eminent investigator in the room with us here who probably wouldn’t have trouble in digging up virtually anybody’s text messages and so rather than starting off with sort of wishful thinking or what we would like things to be, it’s better to start back in the reality based community that says well what does the hardware do, what does the software do, what can the investigators do after the fact and I’d just like to agree with Timothy’s comments but also to take it even further a bit.

At one stage people said if you don’t want something in an email to go on the front page of the Sydney Morning Herald, don’t put it in an email and I think to some extent over the last couple of years, people have become used to sort of scandals and republications and forwarding and whatever causing lots of very obvious damage from people wrongly assuming emails were somehow private.

What’s happened here is that’s moved into the SMS space which people, I think, thought was more like a transient phone call. You know, you are speaking into the wind and it is blown away the next couple of seconds unless for instance a phone call is being actually recorded somehow, you are under a police investigation or something, it is unlikely to be kept and for some reason people thought that SMS was like that. It’s clearly, it’s much more like SMS. So basically don’t put something in an SMS unless you want to see it on the front page of some sort of publication.

ASHLEY HALL: Do the same rules apply to social media, to Facebook and direct messages on Twitter?

DAVID VAILE: Well, even more so. People I think are often under a delusion that if they just want it to go to their friends if they put it on Facebook or Twitter, because they mean it only for their friends then somehow that’s where it goes.

In reality it’s essentially permanent global publication. Facebook is notorious for constantly lowering its privacy protections, for resetting its defaults to dig up things from your past or to let things loose that you thought was just for a particular group to a much broader range and I suppose the problem with them is that the individuals aren’t really their customers. It is the advertisers that are their customers, their incentive, their business model is maximum exposure, maximum flux and all that sort of thing and so the real problem with Facebook is sort of one of appreciating that the intent is actually for virtually everything to be available, including when you’ve closed your account, for maximum publication.

ASHLEY HALL: It doesn’t go away. Rod McKemmish, you’ve been working with electronic evidence for more than 20 years, including with the police forces of Victoria and Queensland. How much has the volume of electronic information changed in that time, how much more information is available?

ROD MCKEMMISH: Well, the short answer and the easy answer is that the volume has significantly increased and with the increase in volume the complexity has also increased, the different technologies that you have to deal with.

Interestingly enough when people use social media for example they may have one or two channels and the more channels the more information that is out there. When I talk about the complexities, it’s also the control over that information.

If we use emails as an example, I sent an email. The minute I send that email I’ve lost control of it and I’m at the hands of who receives it as to what they do with it and I think people need to bear that in mind.

But the sheer volume of information has just gone through the roof.

ASHLEY HALL: How do you go about gathering together that electronic information when you’re doing a search or preparing a case, gathering together text messages, emails, phone records perhaps, how do you do that?

ROD MCKEMMISH: I mean in the private sector, which is where I operate, I mean we don’t have the legal instruments that law enforcement have around search warrants so our hands are tied a little bit but if we can have access to devices whether it be mobile phones, computers, iPads and tablet computers, we can do forensic analysis on those and pull a lot of information out.

That is one piece of the puzzle. We talk about social media and the information put up there. That’s also a great source for me to understand who you’re talking to. I can do simple Google searches and build a big profile about you and your background.

ASHLEY HALL: And how do the current laws constrain you in what you do? You said that you don’t have all of the powers of the police?

ROD MCKEMMISH: Yeah, I mean we obviously have to work within the law and the civil space particularly, it may be by the consent of the owner of the device or the company that owns the system. It may be through a court order. A lot of the time is we’ll have an order from the court allowing us to do an analysis but it is very much, in that sense we are very much at the hands of the lawyers as well in terms of how far we can go.

ASHLEY HALL: How willing are courts to give you those sorts of orders?

ROD MCKEMMISH: Over the years and particularly the last four to five years I’ve seen, I’ll use the term willingness, it’s probably less, it’s probably not an appropriate term. It’s the courts are more open to granting the orders I feel as a recognition of the fact that, of, you know, the importance of the social media in other spaces as a source of information but also we’ve also had to adjust the way we present that argument to the court and particularly we have to do some ground work and build up a case to the court to say look this is, there is a compelling reason why we need access to this material.

So there is still a lot of groundwork that gets done beforehand.

ASHLEY HALL: Timothy Pilgrim, let’s move on to security cameras and the vision from a security camera played a, seemingly a big part in the capture of the man accused of killing the Melbourne woman Jill Meagher and the State Government, the Federal Opposition have pledged to fund more CCTV cameras. To what extent does the need to keep the streets safe override the privacy of anyone who might be using those streets?

TIMOTHY PILGRIM: Well, I think it is an important issue to remember when we’re dealing with the type of community we want to live in, we have to say and admit that privacy can’t be an absolute. I mean, we need to hand over our personal information in various scenarios and we also want at the same time to have a safe community.

Now there are questions whether CCTV camera systems are actually going to prevent crime and there is a lot of debate about that or whether they do or not and a lot of information is suggesting that while they not necessarily going to prevent crime in themselves, they do help to solve some crimes.

So I think we as a community want to think that we can go out and be comfortable and if we are going to move down that path and see more CCTV cameras being put up, I think we then need to make sure that they are appropriately policed themselves – what are the oversight mechanisms, what are the controls that are going to protect that personal information.

I don’t want to sound too glib in this sort of scenario but I’m sure that if we go for a walk down to the local shops or whatever, we’d like to think that we can do that relatively privately and it’s not going to end up on some Funniest Home Videos television program.

But going back to a more serious side, we do want to make sure that while we do have that walk we are safe so I’d stress that if we go down the path of wanting to have more and more of these cameras then we need to be more rigorous about the protections around that information because it can have ramifications for us if it is mishandled.

ASHLEY HALL: What’s the effect of being watched constantly on the population?

TIMOTHY PILGRIM: Well, I suppose we could get into a fairly philosophical debate about that but to put it one way, I think at the end of a long week we all want to go home. We all want to be able to go into our own space and relax and be quiet and just have time to ourselves.

We don’t want to be in a situation where we think that our every move is going to be watched because I think that can impact on our basic wellbeing so we want to be able to have some space in which we can sit down and be quiet and just have time to ourselves.

The concept that we are constantly being monitored whether it be through CCTV or even now as we’ve heard with some issues about when we log onto the computer, who’s going to know what websites we’re browsing. Do we have to keep that in the back of our mind all the time? It impacts I think on our ability to actually relax and say I want time to myself and I want to control who I am and who knows what I am.

ASHLEY HALL: David Vaile, the foundation’s policy statement on surveillance and CCTV describes them as having a chilling effect on human behaviour. What do you mean by that?

DAVID VAILE: Well, I’ll give two examples. There is a very interesting book by Michel Foucault called discipline and punish that talks about the panopticon. This is prison with a central observation point that can see into every cell but the guard can’t be seen. It turns out that people in such a place change their behaviour on the basis that they think that the guard is watching.

It turns out that the guard can go away and that effect still happens, so just the consciousness of surveillance actually changes your behaviour. You have this sort of like the big brother in your mind where you are aware of it.

Another example is in China where we’re very aware of the discussion about the great firewall of China, the internet censorship and filtering and that sort of thing where they are trying to prevent certain things being said. It turns out that they are not really trying to stop everything, what they want is for people to be conscious that they are being watched…

ASHLEY HALL: Self-sensor?

DAVID VAILE: Self-sensor, that’s right and so that’s the effect of surveillance.

ASHLEY HALL: But if you’ve got nothing to hide, you’ve got nothing to fear. That’s the catchcry.

DAVID VAILE: This is the great furphy. If someone said that to me I’d say well okay give me your pin number of your bank account. Oh, oh I’ve got something that’s secret. Okay, if there’s something then let’s look at all the other things.

If you lose your pin number, you end up just losing a small amount if someone knocks off something out of an ATM. If you have your face sort of stolen in a sense of having biometrics put into some sort of recognition system that you didn’t want or if you have other personal information, some deep secret about your past, your psychology, your drugs, your sort of obsessions or whatever, then that can have a lifelong impact.

You can lose your job, you can stop being the Speaker, you can go to jail as we’ve just discovered for some of these things come out and so the idea that you have to be a criminal to try and hide things is just nonsense.

ASHLEY HALL: Rod McKemmish, I assume that a surge in the number of surveillance cameras would be good for business?

ROD MCKEMMISH: Well, yes. I mean if you think about the biometric technologies that are available, you know, if you’ve got a face on a camera and you want to know, you suspect that person has done something, I mean the fact you could use biometric technologies to go through a database, I mean that obviously raises a lot of privacy issues as well but it’s akin to like getting a fingerprint off a crime scene and then searching your finger print database so there are a lot of technologies that you could embed into this which would enhance the investigative capabilities.

But as Timothy said, it’s a question of then what safeguards are you going to put in place and what are you going to do with that information that you collecting.

DAVID VAILE: I think it goes back before that though because the problem is that a lot of these decisions about surveillance technologies are not properly analysed in terms of whether the thing will actually work in the first place and so with these CCTV cameras, there was a picture taken of the woman that was killed in Melbourne. It didn’t save her life. It may help under some circumstances with some sorts of detection but, you know, if you’ve got drunken louts running down the street, they probably wouldn’t care who saw them and so the idea that you just put cameras there and somehow we’re safe is not necessarily correct.

It’s something that people would like to think – I want the streets to be safe – it’s something that politicians would like to offer – yes this will make you safer – but that’s in a sense, a sort of a mutually consensual delusion that the reality may be that police clear up rates of some sorts of crimes may be coupled with no greater safety in the street and so you could actually be lured into a false sense of safety thinking oh, the camera is going to save me when in fact it may lower your sort of risk awareness.

The other thing is that in geographic terms, often those sorts of surveillance tools, all that do is displace these sort of bad behaviours.

You know you may save insurance companies from having to pay off a few more windows not being smashed but if you’re walking the back street behind that, you’re in just as much trouble.

ASHLEY HALL: Not improving safety.

Timothy Pilgrim, the Alan Jones case. When the comments were published, the comments he made to the Sydney University Young Liberal Club, some of his supporters at first claimed that the speech was given under Chatham House rule, which allows people to report the content of the speech but not the identity of the person saying it. As I say there has been dispute over whether or not that occurred. Could you expect privacy at a function like that even if Chatham House rule applied?

TIMOTHY PILGRIM: Without wanting to get into the specific case as you can probably appreciate, I think at a fairly general level when we’re speaking to a large group of people in any sort of environment, I think we need to actually be conscious of the fact that we are speaking to a large group of people, we are not necessarily going to know all of them and I think to a certain degree, I don’t necessarily think we should be surprised if whatever we say does tend to get out.

So, in that sort of context, I would suggest that I don’t think you should be able to say that you can necessarily expect to have a right to privacy or a right to the security or the confidentiality of your comments when you are speaking to very large groups of people at an open forum.

DAVID VAILE: Well, for the purposes of defamation, if you’ve spoken to one third person other than the subject that you’re speaking about, that’s publication and so whether it is a matter of privacy the laws that protect reputations step in before that.

ASHLEY HALL: Rod McKemmish, there’s a parliamentary inquiry underway into plans to ask internet service providers to keep for two years what’s called the metadata from electronic communications. It’s been a contentious move, enforcement agencies back it, and yet you’re not a fan of the idea. Why not?

ROD MCKEMMISH: It’s not that I’m not a fan of the idea, it’s more about I think, I’m more curious to know where it is going to go. I mean there’s two debates that are emerging over this – the concept of keeping metadata and also it is sort of creeping into the discussion, the concept of keeping all content.

If I look at it from an investigative point of view, the thing I want to know is when was something said, who said it and what was said and the metadata answers the first two.

Keeping everything answers everything. The question I’ve got over this whole proposal is more around the practicalities of it. There are a lot of issues that come out of it and it is not just purely an impact on the law enforcement space.

Giving a very quick example of that, if a telecommunications carrier is obliged to contain, store this information for two years, you know that works for the law enforcement and they can do their job. The issue that arises is if that telecommunications carrier is involved in litigation, civil litigation, they have an obligation for discovery purposes.

As a lawyer I’d be going and saying we know you’ve got information there for two years, you go sort through it.

ASHLEY HALL: It is pretty hard to keep it secret?

ROD MCKEMMISH: Correct and so there are other uses of that information start to creep in and that’s I think the concern is really clarifying and defining that clearly.

ASHLEY HALL: Unfortunately, that’s all that we have time for this lunchtime but thank you very much for joining me gentleman.

The Australian privacy commissioner, Timothy Pilgrim. David Vaile, the vice-chair of the Australian Privacy Foundation, and Rod McKemmish, the national head of PPB Advisory’s forensic technology practice.