Is Google a media company under Australian law? How about Facebook? No? What about in the future if we ever change our definition of media to address the fact that it no longer comes only in TV, print and radio forms?
It might be an arcane and not particularly relevant question, especially now that the government has dropped its media reform proposals. Or not.
Facebook recently restored its facial recognition features, which caused huge controversy in 2011. It allows people to be identified in photos by facial recognition software even if users don’t identify them or the subjects don’t want to be identified.
There’s already been a pushback against Google Glass, which has yet to become commercially available, because it can easily be adapted for facial recognition tasks, given it can film whatever its user is seeing and search the internet. Google, by the way, has its own facial recognition software, but held back on its introduction two years ago, it said, on privacy grounds. It has since introduced it as an opt-in feature. The privacy-invading potential of Glass is clear. Potentially, you could walk into a room while filming and identify strangers, pulling up whatever information is publicly available about them, including where they live, their relationship status, their job, their friends, their interests. Welcome to the panopticon, etc, etc.
Get Crikey FREE to your inbox every weekday morning with the Crikey Worm.
Media companies, of course, are exempt from the provisions of the Privacy Act and screamed blue murder in recent weeks at the suggestion exemption be subject to a test as to whether they had an effective self-regulatory body. Google and Facebook’s status as media companies suddenly becomes relevant in that context.
That all comes on top of crowd-sourced forms of privacy intrusion, due to the ubiquity of mobile phone cameras and access to social media. It isn’t just police being filmed or photographed by offended citizens while they beat up arrestees. A recent effort at public shaming by a conference attendee of another attendee after he was overheard making a joke about “dongles” to a third party led to the sacking of both the shamer and the shamee and considerable argument online about the merits or otherwise of public shaming, which may or may not be an effective way of addressing the s-xist culture of the IT industry.
That’s before you get to the potential of facial recognition technology for law enforcement and private security companies. Facial recognition is a big noise in law enforcement. The New York Police Department has a “Facial Recog” unit that can trawl social media for photos of suspects. HD CCTV combined with facial recognition software is being rolled out in parts of the UK. Indeed if anything, facial recognition is getting a bit old hat. The future is “pattern recognition“, the pre-crime of surveillance.
Lawyers would be quick to point out you have no expectation of privacy in public. But this form of privacy intrusion is more fundamental than being observed by people who know nothing about you but who expect certain basic standards of behaviour in front of others. CCTV privacy intrusion occurs in other forms as well. Number plate recognition systems have been operating for years in NSW, Queensland, Victoria and the ACT, ostensibly to identify unregistered vehicles and banned drivers. Shopping malls also use such systems in carparks.
“In effect, we rely on the goodwill of large corporations to protect our privacy.”
Then there are surveillance drones, which are being trialled or considered by law enforcement agencies in Australia, following the lead of the United States. Private use of drones is also expanding rapidly, apparently enthusiastically encouraged by the Civil Aviation Safety Authority.
The privacy impacts of drones aren’t necessarily to the detriment of private citizens or the public good. Texas legislators recently moved to consider regulating drone use after a drone hobbyist accidentally spotted a Dallas meat company illegally discharging blood into a waterway. Any company engaged in environmental breaches may be concerned at the capacity for drones to record what it is doing. Texas legislators, evidently alarmed that industry might come under greater pressure to obey the law, reacted accordingly.
Even without drones or CCTV, under data retention, leaving aside the retention of data on internet usage, it is relatively straightforward for law enforcement agencies to track someone’s movements if they carry a mobile phone, given the location data such devices provide to cell towers. If you don’t want to be monitored by one or other organs of the state, the only assurance you really have is to not carry a phone, not use a car and wear a hoodie (or a Guy Fawkes mask) in public.
The use by government agencies of such information is ostensibly regulated by legislation, and any data retention, its advocates insist, would similarly be carefully hedged in with privacy safeguards. But the growing wealth of personal data controlled by corporations like Google and Facebook is less tightly controlled, and there is far less transparency about its use. In effect, we rely on the goodwill of large corporations to protect our privacy.
The government made some substantial changes to privacy law late last year, including a new, harmonised set of Australian Privacy Principles, changes to credit reporting provisions and more powers for the Information Commissioner. It even tried to grapple with the difficult issue of cross-border flows of information, despite the lack of capacity for enforcement. But on the basic issue of establishing a statutory right to privacy, Labor has retreated in fear of what the media might do.
A statutory right to privacy, with public interest exemptions, worries a mainstream media used to cavalierly invading people’s privacy for ratings or readers (media newcomers Google and Facebook are only following a very old media tradition of exploiting people, albeit by expanding it to include users themselves). Under the government’s media reform package, a tort of privacy was to be referred to the Australian Law Reform Commission, the very body that recommended one back in 2009, for further consideration, neatly placing the issue well beyond the election.
That reference will still go ahead despite most of the media package being abandoned. The silver lining is that the ALRC might be able to grapple with the challenge of who exactly could benefit from a public interest exemption, including whether new media companies could do so.
The problem is individuals’ privacy is being eroded at an accelerating rate. Governments are failing to keep up with the regulatory challenge. And that’s not when government itself is the problem.