Two disturbing trends about surveillance, one in China and one in Australia

September 4, 2022 |

It is trite to say that technology has faced outpaced the common law and statute when it comes to regulating surveillance practices.  In Australia the Privacy Act 1988 has inadequate coverage with exemptions for journalists and political parties.  The Australian Privacy Principles contain exemptions which limit their effectiveness.  And finally the regulator is timid.  The surveillance devices legislation while technically neutral is drafted for an analog world.  Neither legislation nor legislators have considered the impact of persistent surveillance where devices could track individuals throughout the day with the assistance of Artificial Intelligence.  It is not a dystopian future.  It is real and, again, described in the Wall Street Journal’s article The Two Faces of China’s Surveillance State where the capacity of the State to monitor its citizens is significant which it seeks to use to crush dissent and potential dissent and offer a better future that such overweening controls brings.  The first is a human rights abuse as the Office of the High Commissioner on Human Rights report makes clear in OHCHR Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China  while the latter is a Faustian bargain.

Meanwhile in Australia ASIC has found that there is “room for improvement” by life insurers in their use of surveillance.  In its review of 4,800 individual disability income insurance claims it found that where physical surveillance was used in mental health claims in half of those instances it was unwarranted. The total sample size was small, a total of 10 instances, but for half to be unwarranted is a concern.  Similarly it found that the user of surveillance was unwarranted in 17.5% of cases because the insurer could have at least attempted other investigative methods.

The ASIC media release provides:

ASIC’s review of nearly 4800 individual disability income insurance (IDII) claims received between 1 January and 30 June 2021 has found more work is needed by insurers to ensure that consumers are protected from unfair practices in non-disclosure investigations and physical surveillances.

As a result of ASIC’s review, some life insurers have made improvements to their practices. ASIC’s inquiries are continuing with those life insurers that had a higher proportion of potentially unwarranted investigations identified in the review.

ASIC has longstanding concerns about the potential consumer harm resulting from over-use of intrusive claims handling practices like non-disclosure investigations and physical surveillances. This review of IDII claims follows ASIC’s 2019 Report 633 Holes in the safety net: a review of TPD insurance claims (REP 633) and follow up 2021 Report 696 TPD insurance: Progress made but gaps remain (REP 696), which examined claims handling practices in the context of total and permanent disability (TPD) insurance.

The Financial Services Royal Commission examined several case studies of egregious conduct in which physical surveillance and non-disclosure investigations were improperly used. In response to one of the case studies, ASIC took action against TAL Life Limited (TAL). On 9 March 2021, the Federal Court found that TAL breached its duty of utmost good faith in handling a claim (21-042MR). 

ASIC Deputy Chair Karen Chester said, ‘Our previous reviews and the Royal Commission identified concerns around the misuse of investigative tools by insurers and resulting consumer harms. Following the Royal Commission, we took action against TAL for breaches of its duty of utmost good faith in handling claims. Changes to the Corporations Act on 1 January 2022 mean that insurers are now legally obliged to act efficiently, honestly and fairly when handling claims.

‘ASIC’s latest review sought to test whether insurers were now entrenching good practices, especially with insurers now being subject to new claims handling obligations. We also sought to identify any outliers and areas for improvement. Following the review, we remain concerned that some insurers still appear to be ‘fishing’ for non-disclosures to avoid paying out legitimate claims. We are putting insurers on notice that we will take action where we see consumer harm from poor claims handling practices,’ added Ms Chester.

‘We also identified concerns around mental health claims and investigations. Non-disclosure investigations and physical surveillance are intrusive measures and insurers must ensure they have reasonable grounds to undertake them. We expect physical surveillances to be used as a last resort only,’ concluded Ms Chester.

ASIC has written to the life insurers covered by the review to outline areas for improvement and communicate expectations for their use of investigative tools, including the obligation to handle claims efficiently, honestly and fairly.

These life insurers participated in the review:

    • AIA Australia Limited (AIAA), comprising AIAA and The Colonial Mutual Life Assurance Society Limited (CMLA);
    • TAL Life Limited (TAL), comprising TAL and Asteron Life & Superannuation Limited (Asteron);
    • Zurich Australia Limited (Zurich), comprising Zurich and OnePath Life Limited (OnePath);
    • MLC Limited;
    • Resolution Life Australasia Limited (formerly AMP Life Limited); and
    • Westpac Life Insurance Services Limited (Westpac) (now TAL Life Insurance Services Limited as of 1 August 2022).

Review findings

ASIC’s review of nearly 4800 individual disability income insurance (IDII) claims found that:

    • non-disclosure investigations were conducted in around 5% of claims (252 claims) and physical surveillance was conducted in around 1% of claims (57 claims);
    • five insurers appeared to commence non-disclosure investigations only on the basis that the claim was lodged within three years of policy inception or renewal, heightening the risk of ‘fishing’;
    • 40% of non-disclosure investigations related to mental health non-disclosure;
    • physical surveillance was used in 10 mental health claims and ASIC considers that surveillance may have been unwarranted in half of these cases; and
    • use of surveillance may have been unwarranted in 17.5% of claims (10 of 57) where surveillance was used, because the insurer had not shown that other investigative methods had been exhausted.


Individual disability income insurance (IDII) cover is obtained through direct or advised channels where each life insured is individually underwritten. IDII cover provides an income for a period of time if an individual cannot work because of an illness or injury.

Insurers use non-disclosure investigations to confirm claimants provided the required information about their medical history when they applied for their policy. In limited circumstances, physical surveillances are used to check potential inconsistencies in claim information.

Since March 2019, section 13(2)(A) of the Insurance Contracts Act 1984 imposes a civil penalty on an insurer that fails to act towards an insured with utmost good faith. The penalty did not apply at the time of the conduct that was the subject of ASIC’s Federal Court action against TAL (21-042MR). However, ASIC considers that the declarations sought set an important legal precedent and will act as a deterrent against similar conduct.

As part of the law reforms following the recommendations of the Royal Commission, the existing duty of disclosure in s21A and s21B of the Insurance Contracts Act 1984 was replaced with a duty on the insured to take reasonable care not to make a misrepresentation when buying insurance. The new duty applies to retail contracts issued, renewed or varied from 5 October 2021.

On 1 January 2022, insurance claims handling and settling became regulated as a financial service under the Corporations Act 2001. This includes the obligation to handle claims efficiently, honestly and fairly. Insurers may be in breach of the obligation to handle claims efficiently, honestly and fairly if they do not have a reasonable basis to test for non-disclosure or misrepresentation. Without a reasonable basis, the insurer may be engaging in ‘fishing’ and may be in breach of the obligations.

The Sydney Morning Herald covered the report with ASIC warns life insurers over ‘unwarranted’ surveillance which provides:

The corporate watchdog has raised concerns about the methods insurance companies use when investigating people who made have mental health claims, after a review found surveillance of some customers may have been unwarranted.

The Australian Securities and Investments Commission (ASIC) also said some insurers still appeared to be trying to avoid paying legitimate claims by going “fishing” for information that a customer may not have disclosed.

ASIC on Friday released the findings of a review into how insurance companies dealt with claims for disability income insurance, which provides cover to people who can no longer work because of illness or injury.

The 2018 royal commission into financial services misconduct highlighted cases of insurers spying on their customers who had made mental health claims, and a key topic in ASIC’s review was the “physical surveillance” of customers.

ASIC’s research, based on a review of nearly 4800 claims last year, suggested some insurers may still be putting customers under surveillance more than was warranted.

The report said physical surveillance – which can include using external investigators – was used in 10 mental health claims, and ASIC believed the surveillance “may have been unwarranted in half of these cases”.

ASIC said that across the entire study, which was wider than mental health claims, insurers used surveillance in 57 cases, or about 1 per cent of claims. The regulator believed surveillance may have been unwarranted in 10 of these cases because the insurer had not shown that other investigative methods had been exhausted.

The watchdog also highlighted an issue known as “fishing” — where an insurer actively looks for information that a customer did not disclose to avoid paying a legitimate claim.

It said five unnamed insurers appeared to start these non-disclosure investigations simply because a claim had been made within three years of a policy being written or renewed, and this heightened the risk of “fishing”. ASIC said 40 per cent of these non-disclosure investigations related to mental health non-disclosure.

ASIC deputy chair Karen Chester reminded the industry that under changes that took effect in January, insurers must act “efficiently, honestly and fairly” in handling claims.

It is legal for insurers to put customers under surveillance, but the regulator says it should be strictly controlled, and used only if the insurer cannot verify information in another way.

“Non-disclosure investigations and physical surveillance are intrusive measures and insurers must ensure they have reasonable grounds to undertake them. We expect physical surveillances to be used as a last resort only,” Chester said.

An ASIC spokeswoman added that if a claim involved a mental health issue, there was a risk that surveillance by an insurance company could exacerbate the customer’s condition.

A spokeswoman for the Financial Services Council pointed to a new life insurance code of practice that will come into effect next July, saying this would address concerns raised by ASIC and further restrict the use of surveillance. The new code also had provisions to prevent insurers using “fishing”, she said.

“The new code lifts claims handling standards across the industry and will mean consumers can make a claim on their life insurance policy with confidence they will be treated fairly and compassionately,” she said.

ASIC’s investigation covered industry giants AIA Australia (which bought the Commonwealth Bank’s life insurance business), TAL, Zurich, MLC, Resolution Life (which bought AMP’s business), and Westpac’s previously owned life business.

ASIC said its inquiries were continuing with insurers that had a higher proportion of potentially unwarranted investigations.

“We are putting insurers on notice that we will take action where we see consumer harm from poor claims handling practices,” Chester said.

The WSJ article provides:

Barring a dramatic turn of fortune, Chinese leader Xi Jinping will stride into Beijing’s Great Hall of the People this fall to claim a third term in office—a likely prelude to life tenure. This new phase in Mr. Xi’s rule will bring fresh scrutiny to one of his grandest ambitions: the creation of a new type of modern government, powered by data and mass digital surveillance, that can rival democracy globally.

As it amasses ever more data on the movements and habits of its people and develops new ways to process it, China’s Communist Party dangles the promise of a perfectly engineered society: one in which artificial intelligence companies work hand in glove with police to track down fugitives, find abducted children and publicly shame jaywalkers; in which public services, rewards for good deeds and punishments for misbehavior are all delivered with mathematical precision and efficiency.

Rather than entice citizens with the possibility of riches, Xi offers them a predictable world in which thousands of algorithms neutralize threats and sand away frictions.

Mr. Xi is pursuing this vision out of necessity. Over roughly three decades following the death of Mao Zedong in 1976, the Communist Party retreated from people’s personal lives, invested in infrastructure and surfed a wave of historic economic growth that carried China from abject poverty to middle-income comfort. But in the last decade, that growth has slowed. Exploding debt, pandemic controls and demographic pressure threaten to reduce it to a crawl.

Mr. Xi is now trying to write a new social contract. Rather than entice citizens with the possibility of riches, he instead offers them security and convenience—a predictable world in which thousands of algorithms neutralize threats and sand away the frictions of daily life.

The world has seen the dark side of China’s surveillance project in the remote northwestern region of Xinjiang, where authorities have carried out a multiyear campaign of forcible assimilation targeting Uyghurs and other Turkic Muslim groups. Members of these groups are digitally tracked, using their faces, voices, the swirls of their irises, even the way they walk. Their smartphones are constantly scanned by police for evidence of religious identity or connections overseas. Uyghurs deemed likely to cause trouble are sent to prison or to one of the region’s archipelagoes of “transformation through education centers.” The result is the largest incarceration of a religious minority since World War II.

But if Xinjiang is where the Party’s use of mass surveillance descends into dystopian nightmare, then Hangzhou, the wealthy capital of Zhejiang province, is where it grasps for utopian heights. Like Xinjiang, Hangzhou is rife with cameras. But this dense network of sensors is meant to improve residents’ lives as much as to control them. It feeds data into algorithms that alleviate traffic congestion, monitor food safety and help escort first responders to a scene more quickly. In Hangzhou, the more alluring side of Xi’s world-altering ambitions is on display.

At the heart of Hangzhou’s modern economy is a cluster of carefully nurtured, unusually successful technology companies. These include both the e-commerce behemoth Alibaba Group and Hikvision, the world’s leading maker of surveillance cameras. Starting around 2016, Hangzhou made these companies partners in running the city. Thanks to them, the city’s business districts—freshly constructed areas with names like Future Sci-Tech City and Internet of Things Street—now thrum with a youthful, world-conquering energy recognizable to anyone who has spent time in American tech hubs.

The collaborations have turned Hangzhou into the “smartest” of Chinese cities and a model that others around the country are rushing to emulate. The data the city collects helps it to manage the flow of tourists at crowded attractions, optimize parking spaces and design new road networks. The city’s camera surveillance network has been credited with finding missing children, which has earned immense goodwill in a country where policy has long limited family size.

One particularly noteworthy initiative is called City Eye, in a tidy Hangzhou neighborhood known as Little River Street. The program has placed AI-enabled tools in the hands of the local branch of the chengguan, an urban management force that spends most of its time taking care of tasks that police don’t want to bother with: chasing away street peddlers, punishing unauthorized trash dumps, tracking down vandals and handing out parking tickets.

We visited a City Eye command post on the third floor of a low-rise administrative building in Little River Street, a neighborhood where people are either on the verge of moving up into the middle class or trying hard not to fall out of it. Well-being feels widespread but fragile in these in-between places, where laundry dangling between apartment windows obscures peeling paint behind billowing rainbows of T-shirts and underwear.

The Communist Party worries about neighborhoods like this one. The rich don’t have an incentive to make trouble, and the destitute don’t have the power, but the people in the middle have just enough of both. And the pressures they face trying to make their way in modern China—merciless work hours, bad healthcare, constantly rising prices, pollution and food-safety scares, a capricious stock market—make them likely to lash out.

Local officials tread a fine line to exert enough force to keep the streets in order and the economy growing, but not so much that they trigger an unpleasant reaction. The chengguan is at the forefront of that encounter, because it is responsible for keeping Hangzhou’s streets free of the messy, insistent and occasionally desperate forces of developing-world economies: farmers selling fruit from the backs of beat-up minivans, migrant vendors hocking socks and knockoff handbags, unlicensed carts offering the region’s famous stinky tofu, beggars blocking foot traffic with stories of personal tragedy scrawled on scraps of scavenged cardboard.

The program linked the camera feeds with AI technology that kept a 24-hour watch on the streets and sent an automatic alert with a screenshot any time it saw something out of order.

Over the years, the chengguan have become the object of nearly universal loathing across China, and not without reason. Chinese social media teems with videos that show chengguan viciously attacking street vendors, frequently among the poorest and weakest members of Chinese society.

Qiu Liqun, the official in charge of the City Eye command center, conceded to us that the chengguan sometimes got physical, but he said that was only in extreme cases. No one saw the effort they put in behind the scenes trying to reason with violators.

City Eye began in 2017, when Hikvision installed roughly 1,600 police surveillance cameras in Little River Street. The program linked the camera feeds with AI technology that kept a 24-hour watch on the streets and sent an automatic alert with a screenshot any time it saw something out of order. Among the things the system was trained to notice were piles of garbage and mobile street vendors selling their wares on unauthorized corners. Officers would then decide which violations merited a response.

The AI didn’t always get things right, and its mistakes sometimes led to wasted effort. Especially in the early days, the machines would mistake fallen leaves or fresh snowfall for trash. Other times they would flag something that was technically a violation but that wasn’t a big enough problem to act on. But the system got better the more data it collected, Mr. Qiu said, and the benefits far outweighed the nuisance of the false alarms.

Between January and July 2019, Mr. Qiu said, his human street patrols had identified 2,600 potential violations. Over the same period, City Eye’s AI flagged 19,000. More important, the scrutiny had produced results: Mr. Qiu’s team had recorded a fall in monthly instances of unlicensed vending in Little River Street from more than 1,100 in August 2018 to just 30 a year later. “You catch one each time they pop up,” he said of the illegal vendors.

Mr. Qiu’s superiors were evidently pleased. A wall behind the command center’s conference table was hung with local state-media stories extolling the system’s effectiveness, photos of law enforcement delegations sent from other cities to study what they’d done and a framed message of praise from Hangzhou’s deputy mayor. Residents likewise seemed happy. The pedestrian experience had improved, they said. Previously cluttered streets were now clean. Electric bikes were parked neatly within allocated white lines on the pavement instead of randomly on the sidewalk.

Mr. Qiu especially appreciated the effect of City Eye on relations between the neighborhood’s residents and the chengguan. The cameras and a transparent reporting system in WeChat allowed the chengguan to prove that they came into the streets only when other options had been exhausted. They also kept the chengguan honest and cut down on bribes. The result, Mr. Qiu felt, was to transform the chengguan from loathed emblems of state brutality into respected protectors of social order in Little River Street.

City Eye could also be used, of course, to detect and suppress local protests over abuse of power. But it has pre-empted some of the conflicts that previously led to such protests.

If Hikvision supplied eyes on the streets of Hangzhou, Alibaba supplied the city’s nerve center. Its AI-powered platform, City Brain, helps the city’s government to optimize everything from traffic to water management. At the same time, Alibaba’s products and platforms make it easier for city residents to pay their utility bills, take the bus, get loans and even sue local companies in online court.

City Brain is credited with transforming notoriously car-clogged Hangzhou from the country’s fifth most congested city to its fifty-seventh. To ease Hangzhou’s legendary traffic snarls, Alibaba designed a system to crunch video data from intersections and real-time GPS locations, allowing the city’s traffic authorities to optimize traffic signals and reduce congestion on its aging road networks. City Brain even provides an AI-powered navigation tool to ambulances that manipulates traffic lights to clear a path through traffic.

In October 2019, a 77-year-old resident of a rural district named Wang Fengqin was washing clothes near a creek when she lost her balance and fell in. The medics who loaded her into the ambulance activated the City Brain navigation tool, and as the ambulance powered down the road toward Xiaoshan No. 1 People’s Hospital, the algorithm ensured that green lights appeared at each of the 14 intersections they had to pass. On a good day in the past, the journey to the hospital could have taken close to half an hour. This time, according to a local news report, it took 12 minutes. The medics wheeled her into the emergency room, where doctors drained the water from her lungs.

We tracked down Ms. Wang’s son, Li Dong. After his mother came home from the hospital, Mr. Li treated 20 of her fellow villagers to a banquet and distributed $50 fruit baskets to thank them for their help. It wasn’t until later that he found out City Brain had played a role in saving his mother. “I never expected AI would affect my life in this way,” he said.

At the time of Ms. Wang’s accident, City Brain covered 400 junctions and 600 traffic lights. It was deployed in eight hospitals and 18 emergency stations and had been used more than 400 times, cutting emergency travel times by an average of 50%.

Alibaba has pumped money into a City Brain Lab dedicated to honing and expanding its smart city platform. With advanced processing, the company predicts, City Brain will eventually broaden its algorithms to cover urban planning, electricity consumption and firefighting. In the longer term, China’s state planners are pushing for smart-city systems to soak up data from a more diverse web of sensors: not just cameras and smartphones but also QR code readers, point-of-sale machines, air quality monitors and radio frequency identification chips used to store biometric information in advanced ID cards.

The ambition of Chinese cities to make their residents’ lives easier is growing. Local governments and companies spent $24 billion on smart-city technology in 2020, a figure likely to rise to about $40 billion by the end of 2024.

Like Xinjiang, with its systematic oppression of the Uyghurs, Hangzhou serves as a pilot zone for social control, giving the Communist Party a view into what works and what doesn’t. The experiments in the two places suggest that the same technologies used to terrorize and remold those who are thought to resist the party’s authority can be deployed to coddle and reassure those who accept its rule.

The Janus-faced nature of China’s surveillance state and the terms of Mr. Xi’s new social contract have both been thrust into the spotlight since the outbreak of the Covid-19 pandemic. Nearly everyone in the country now has a health code app on their phone that tracks their travels, vaccination status and test results, assigning a color code based on risk exposure. Drones and robot dogs prowl residential compounds to hound those who don’t comply with isolation rules.

Beijing’s zealous devotion to “zero Covid” has dragged down the country’s GDP growth to almost nothing while millions of Chinese citizens endured draconian lockdowns. But many in the country are nevertheless happy to accept the expansion of state control in light of coronavirus death rates elsewhere: 315 per 100,000 citizens in the U.S., according to Johns Hopkins data current through August, versus one per 100,000 in China.

Mr. Xi’s marriage of AI and authoritarianism dangles the alluring promise of security and efficiency in an era confronted by war, pandemics, economic setbacks and crumbling institutions. The appeal of a perfectly engineered society is real. How far the model spreads will depend not just on Mr. Xi’s ambitions and performance but on how well the world’s democracies deal with the same set of challenges.

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