Privacy, Surveillance and Interception in Australia's Changing Telecommunications Environment
| Author | R Magnusson |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| DOI | http://doi.org/10.22145/flr.27.1.3 |
| Subject Matter | Article |
PRIVACY, SURVEILLANCE
AND
INTERCEPTION
IN
AUSTRALIA'S
CHANGING
TELECOMMUNICATIONS
ENVIRONMENT
RMagnusson*
INTRODUCTION
Australia's telecommunications sector is
in
the process of remarkable change.
Over
the
past
decade,
it
has
evolved from a
market
dominated
by
a
government
owned
entity
(Telecom)
with
astatutory monopoly, to aprivatised
and
fully competitive
market
comprising "carriers", "carriage service providers"
and
"content service providers",l
each
providing
an
ever-expanding range of services
through
avariety of delivery
platforms. The aim of this
paper
is to review the rapidly evolving legal
and
administrative framework for the protection of privacy within Australia's
telecommunications sector. The
paper
will survey the regulation of
telecommunications interception
by
individuals
and
law
enforcement bodies,
disclosure of the contents of (tele)communications by telecommunications service
providers, encryption policy, computer "hacking" offences, the Telecommunications
Industry
Ombudsman
scheme
and
the
new
"co-regulatory"
approach
to
standards
development
through
the Australian Communications
Industry
Forum
(ACIF). The
paper
will also consider
whether
Australia's privacy regime is
an
adequate
response to
the challenges
posed
by
the changing telecommunications environment.
Change is
an
ever-present feature in today's telecommunications environment.
While
some
applications of telecommunications technology are both familiar
and
widely
available (for example, voice telephony), other applications are speculative
and
contingent,
dependent
upon
the market, the regulatory regime
and
developments
in
the technology itself. Similarly, while there is acore of familiarity
in
discussion of
telecommunications privacy issues (for example,
with
respect to the interception of
telephone conversations), there is also aperipheral category of privacy issues which
are speculative,
or
can only be anticipated
in
broad
terms. This is the inevitable context
within
which Australia's framework for the protection of privacy
in
telecommunications
must
be considered.
That
framework
must
be flexible
in
order
to
respond
to future, as well as existing, privacy concerns.
1
BA
LLB(Hons) (ANU),
PhD
(Melb). Lecturer, Faculty ofLaw, University ofSydney.
These terms, derived from the Telecommunications Act 1997 (Cth),
are
discussed below.
34
Federal
Law
Review
Volume
27
The
current
regime
in
broad
terms
The post-June 1997 regulatory framework for the Australian telecommunications
industry
may
broadly
be described as
technology
neutral,
market-driven
and
emphasising
self-regulation.
That
is to say, firstly,
that
the government has intentionally
avoided
"picking winners"
in
the
technology stakes
by
favouring
any
particular technology
or
delivery platform (such as optic fibre).2 Secondly, the framework is market-driven
and
pro-competition:
the
pre-July 1997 restrictions
on
the licensing of
(what
used
to
be
called) "general"
and
"mobile" carriers
have
been abolished. There is
now
no
limit to
the licensing
of
new
carriers
and
service providers. Furthermore, access to
telecommunications networks
by
all carriers
and
service providers is secured
by
the
telecommunications access regime3overseen
by
the Australian Competition
and
Consumer
Commission (ACCC). Thirdly, the
current
framework encourages
the
development
by
industry
of voluntary
standards
applicable
in
the areas of technical
regulation
and
consumer
protection.4
Within these
broad
parameters, Australia's post-June 1997 telecommunications
privacy regime
can
best be described as
sector-specific,
fragmented
and
complex,
again
with
a
strong
emRhasis
upon
industry
self-regulation.
That
is to say, firstly,
that
despite
recommendations5
and
assurances,6 the Privacy Act 1988 (Cth) has
not
been
expanded
to cover
the
private sector.7The Privacy Act currently imposes 11 Information Privacy
Principles
(IPPs)-based
upon
OECD
standards-upon
federal
and
ACT "agencies".
Telecommunications carriers
and
service providers are
not
"agencies" for the
purposes
of the Act, although they are nevertheless
bound
by
the IPPs by virtue of
membership
in
the Telecommunications
Industry
Ombudsman
(TID) scheme.8The Privacy Act does
2
3
4
5
6
7
8
See
Parliament
of
the
Commonwealth
of Australia, Senate Economics References
Committee, Connecting
You
Now
...
:Telecommunications
Towards
the
Year
2000 (1995)
at
31
(hereafter Connecting
You
Now);
Department
of
Communications
and
the
Arts, Australia's
Open
Telecommunications Market (1997)
www.dca.gov.au/policy
/
auction/
open.html.
As
set
out
in
the
Trade
Practices Act 1974 (Cth)
Part
XIC (introduced
by
the
Trade
Practices
Amendment
(Telecommunications) Act 1997 (Cth)). This access regime
operates
with
respect
to "declared carriage services
and
specified ancillary services".
Part
XIB
of
the
Trade
Practices Act contains telecommunications-specific anti-competitive
conduct
provisions.
Telecommunications Act1997 (Cth), Parts
6,
21.
Connecting
You
Now
above
n 2
at
68-70;
Commonwealth
of Australia, Networking Australia's
Future:
The
Final
Report
of
the
Broadband
Services
Expert
Group
(1994)
at
66-67 (hereafter
Networking Australia's Future).
The
Commonwealth
Attorney
General's
Department,
Privacy
Protection
in
the
Private
Sector
(Discussion
Paper,
1996)
at
1-2, 5.
JBrough, "Another Key Election Promise Bites
the
Dust" Sydney Morning
Herald
31
March
1997
at
11; R
Magnusson,
"The Folly of Forgoing aVital Protection" Age 19
May
1997.
Furthermore,
the
Howard
government
indicated its intention to contract
out
the
computer
processing
functions
of
government
departments
to
the
private
sector ("Computer
Plans
Lift Fears
Over
Privacy" Sydney Morning
Herald
26 April 1996). This policy is
now
being
implemented.
At
the
time
of
writing,
the
Privacy Act 1988 (Cth) is to
be
amended
so
that
independent
contractors will
be
bound
by
the
Information Privacy Principles: see Privacy
Amendment
Bill 1998 (Cth); NWaters, "Privacy
and
Outsourcing-the
Privacy
Amendment
Bill 1998" (1998) 4
Privacy
Law
&
Policy
Reporter
181.
This
point
is often overlooked
by
privacy advocates. The
Constitution
of
the
Telecommunications
Industry
Ombudsman
(TIO) prOVides
that
the
Ombudsman
has
jurisdiction to investigate
and
resolve complaints
regarding
"interference
with
the
privacy
1999 Australia's Changing Telecommunications Environment 35
contain
two
major "sectoral extensions" into
the
private
sector
in
the
form
of
provisions
and
Guidelines
governing
credit
reporting
and
Tax File
Numbers.
However,
as these
are
of
limited relevance here, telecommunications privacy effectively remains a"stand-
alone"
regime
outside
of
the
Privacy Commissioner's jurisdiction.
Secondly,
the
privacy regulation
which
does exist is
fragmented
and
complex.
It
is a
melange
of
(i) Federal
and
State criminal offences
and
(ii)
an
industry-funded
administrative
scheme
which
carriers
and
service
providers
are
required
to
enter
into
(the Telecommunications
Industry
Ombudsman
scheme). There is also
an
expectation
that
(iii) a
more
comprehensive
privacy coverage will evolve
through
voluntary
codes
developed
by
industry
groups
in
conjunction
with
the
new
industry
regulator,
the
Australian
Telecommunications
Authority
(ACA). This
model
for privacy protection
in
telecommunications,
involving
industry-developed
standards
operating
within
a
statutory
framework
with
back-up legislative
powers
vested
in
a
government
regulator
(the ACA) is
known
as "co-regulation". Until
March
1997,
when
the
Howard
government
decided
not
to
extend
the
Privacy Act to
the
private
sector, "co-regulation"
was
the
favoured
model
for privacy protection
within
the
private
sector generally.9
The
first
part
of this
paper
will
provide
an
introduction
to
the
existing
telecommunications infrastructure,
the
factors propelling
change
and
the
broad
level
privacy
implications. The
second
part
will
survey
current
laws
protecting
privacy
in
telecommunications.
The
next
part
will
survey
administrative mechanisms
which
play
arole
in
complaint
handling
and
standards-development.
The
final
part
will
survey
the
mechanisms
in
place for
the
development
of
further
detailed privacy
standards,
by
industry,
through
the
Australian
Communications
Industry
Forum
(ACIF).
The
conclusion will assess
the
adequacy
of
the
overall regime.
TELECOMMUNICATIONS
IN
AUSTRALIA:
AN
EVOLVING INDUSTRY
An
evolving
regulatory
environment
Prior to 1988, telecommunications services
in
Australia
were
provided
by
the
Australian
Telecommunications
Commission
(Telecom)
and
by
the
Overseas
Telecommunications
Commission
(OTC), publicly-owned bodies
with
a
mono
p
ol
6
in
the
provision
of
domestic
and
overseas telecommunications services, respectively.1 By
1987, basic telephone access
had
largely
been
achieved
throughout
Australia
and
government
policy shifted
towards
encouraging
greater efficiency
and
competitiveness
9
10
of
an
individual
in
terms
of
non-compliance
with
the
Information
Privacy Principles
contained
in
s14
of
the
Privacy Act 1988
and
any
industry
specific privacy
standards
which
may
apply
from
time
to
time": TIO
Constitution
(see TIO, 1997-98
Annual
Report
para
4.1).
The
Commonwealth
Attorney
General's
Department,
above
n6,
at
3-4, 12-14. Since
March
1997,
the
Privacy
Commissioner
has,
at
the
Prime
Minister's direction,
begun
to
negotiate a
voluntary
scheme
for
the
protection
of
personal
information
held
in
the
private
sector. A
joint
discussion
paper
has
been
released
outlining
the
principles
which
would
form
the
basis
of
the
scheme
(Human
Rights
and
Equal
Opportunity
Commission, Privacy
Commissioner,
Information Privacy in Australia.' ANational Scheme for Fair Information
Practices
in
the Privacy Sector (Consultation
Paper,
1997).
The
Commissioner
is
currently
negotiating
the
mechanisms
for
ensuring
compliance
and
enforcement
of
the
private
sector
principles.
A
third
carrier, AUSSAT
was
incorporated
in
1981 to
operate
Australia's
domestic
satellite
system.
It
began
commercial
operations
in
1985
when
the
first satellite
was
launched.
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