Putting the genie back in the bottle

By Dannielle Furness
Tuesday, 16 May, 2017

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The increasing use of CCTV, sensors, drones, monitoring and mass data collection across urban landscapes means human movement is being tracked more than ever before. For the data and comms industry, increased connectivity equals more opportunity. But when it comes to the individual, where is the line between optimised security and an unstoppable loss of privacy?

On the surface, living in the age of advancing technology is fantastic — new developments provide short cuts for mundane tasks like shopping, they remove the pesky middle man in areas such as recruiting and they’ve completely changed the way we consume television, movies and music. We rely on GPS technology to get everywhere and we are happy to let apps utilise complex algorithms to make restaurant suggestions based on current location and past preferences.

In short, when there’s a perceived positive outcome, or when we initiate the process ourselves, the average person seems happy to surrender a degree of privacy to the tech giants that increasingly rule our world. When such tracking technology is thrust upon us, however, it may not be so well received.

Every move you make… I’ll be watching you

The extensive use of CCTV in our cities has proven advantageous in recent years, with the police utilising captured images for everything from tracking the last known movements of missing persons and calling for public assistance to supplying indisputable evidence of a crime. Every time you use an ATM, ride in a taxi, pass by or enter a retail store, use a major thoroughfare, cross at a busy CBD intersection, enter licensed premises or visit a landmark, your image is being captured, with the inference that any wrongdoing will be uncovered and action taken.

As the oft-quoted adage goes, if you’re not doing anything wrong, you have nothing to hide, right? This may be so in the case of retrospective policing, but it increasingly looks like this type of technology will be used to enable law enforcement of a more proactive and predictive kind… but more on that later.

Street surveillance aside, thanks to the ubiquitous smartphone we are allowing our movements to be tracked at a micro level every day. Rather than being an ‘opt-in’ service, users generally need to turn off tracking and reporting functionality within map and GPS applications on their devices. While it’s no secret — many of these apps push out alerts to actively encourage users to upload information about places they have recently visited (or passed by) for the benefit of others — it still seems like an unreasonably zealous use of the technology. Again, doing nothing wrong, then nothing to hide… and yet, why implement a policy of opt out rather than opt in? It seems to infer that objection, rather than endorsement, is the less common attitude.

We’ve had more than two decades to get used to the internet and all it enables, including the fact that that IP tracking makes it easy to discern what we’ve looked at, how long we’ve looked at it, purchases we’ve made, songs we’ve listened to and movies we’ve downloaded (by legitimate or illegal means), all of which we’ve accepted as part of the contract for a more connected life. Back when our searching was confined to a desktop computer, things were different, but now our movements can be pinpointed with alarming accuracy. Our digital footprint is becoming as detailed as our DNA.

Tracking capability is fantastic when you’ve lost your phone or need to find friends in a large crowd, but when the same functionality is available to someone with less noble motives — stalkers, for example — all of a sudden, the ‘benefits’ become the exact opposite.

Every journey begins with a single step

The incremental nature of ongoing privacy encroachment means we are stepping ever closer to full monitoring without too much forethought. In December last year, ride-sharing service Uber announced that its tracking functionality now extended to five minutes beyond the drop-off, regardless of whether users had the app open or closed. It said the move would improve pick-ups, drop-offs, customer service and enhance safety, though it’s not immediately clear how tracking movement post-trip would help achieve these goals. While users took to social media in droves vowing to never use the service again, for many the convenience undoubtedly outweighed the objection and these users now willingly provide access to private information in the name of a cheaper, cash- and card-less alternative to taxis.

By accepting such small changes without argument, we are ostensibly headed for a scenario that won’t be easily undone. How can we ever argue against it when we’ve shown nothing but tacit compliance along the way?

Eyes up

We’ve well and truly entered the age of the drone and it’s not just the weekend warriors taking aerial shots over beaches and real estate agents seeking to capture a birds-eye view of properties.

The Civil Aviation Safety Authority (CASA) developed a series of guidelines for the use of remotely piloted aircraft (RPA). In short, if you are flying for fun — ie, not receiving any commercial gain — you’ll need to adhere to a few rules:

  • Your RPA must remain within your sightline and you have to be able to see it with your own eyes, meaning not through binoculars or telescopes.
  • You can’t fly at night, through cloud or through fog.
  • You can’t fly closer than 30 metres to vehicles, boats, buildings or people.
  • You can’t fly over populous areas including beaches, parks or sporting ovals.
  • You can’t fly higher than 120 metres above the ground within controlled airspace (most Australian cities).
  • If you are operating within a 5.5 km radius of an aerodrome or helicopter landing site, you must not operate on the approach or departure path, within the movement area or create a hazard to aircraft that may be using those areas.

If you do plan to earn money from your endeavours, there is a completely different set of rules to adhere to and you may need to apply for either a remote pilot licence (RePL) or RPA operator’s certificate (ReOC). There are also additional restrictions based on the weight of the vehicle.

While the rules are straightforward, you’ll see direct contravention of these laws every day in any Australian city, particularly on weekends. From a privacy perspective, the issue is that the average drone is now capable of capturing images — be it either stills or video footage — of anything in its path. To the average person, privacy is a bit of a grey area anyway; a tourist is free to take a photo of Bondi Beach, but zooming in and focusing on individuals is pretty much verboten. If you are a regular beachgoer or spend time at sites or attractions that draw high tourist numbers, then you probably feature in hundreds, if not thousands, of candid shots across the globe — albeit as an indistinguishable speck in the crowd, rather than as a single, identifiable individual.

In an article published in 2016 (see it here: www.4020.net/words/photorights.php), photographer and solicitor Andrew Nemeth examines many of the legal issues surrounding street photography in Australia, along with comparisons to some of the legislative boundaries in other countries.

Nemeth cites various legal cases, along with specific state and federal laws relating to voyeurism, consent, privacy, defamation, copyright and trademarks. There is also an examination of cases in which local councils have attempted to ban photography outright (often as a result of the unauthorised photography of children) but the article serves to illustrate just how complex the situation is… and all of this before we even factor in the use of unmanned aerial vehicles or drones to capture these images.

Tracking down a drone pilot may prove be a little trickier than approaching a human photographer and presumably no-one is actively policing UAV and RPA use in public spaces on a daily basis. Unsafe or suspected illegal activity can be reported via the CASA website, which is all well and good, but what about when the guys that should be policing it are the ones using the technology?

The long(er) arm of the law

Military forces, intelligence agencies and law enforcement are increasingly taking to the skies to keep an eye on things and it seems that legislation that guides the use of this technology hasn’t quite caught up, which has been a cause for concern for an increasing number of privacy groups.

Back in 2013, Michael Salter, Lecturer in Criminology at Western Sydney University, penned an article for media outlet The Conversation titled ‘Are police drones just toys for the boys?, in which he questioned the value of drone use in the area of law enforcement. At the time, police in South Australia and Queensland had signalled their intent to deploy drones for policing purposes. Salter suggested that this type of technology was more suited to military operations than any form of law patrol, offering the evidence that two years of police drone use in the UK had resulted in only a single arrest.

Again on The Conversation, Gbenga Oduntan, Senior Lecturer in International Commercial Law at the University of Kent, sees a bigger issue — that ‘The age of drones has arrived quicker than the laws that govern them’. 

Oduntan says that a plethora of national and international laws will need to be revised including “those governing cyber-security, stalking, privacy and human rights legislation, contract and commercial law, even the laws of war”. This will no doubt take years to straighten out, years in which we (as a society) will continue to accept even more creepage when it comes to privacy.

When many become one

The rise of smart cities will facilitate a move towards more proactive and predictive policing — things like traffic management for example. It’s not beyond the imagination to see a time where compulsory GPS tracking in vehicles is implemented. While this would prove useful in relaying traffic information for the purposes of rerouting and accident prevention, the same technology could be easily used to record speed and location information and to report back in the event of a traffic infringement. Give with one hand… take with the other. While there is obvious benefit, there is potential for additional loss of privacy through such continuous tracking and monitoring.

Pre-emptive policing requires analysis of the behaviours of many individuals in order to predict — monitor the masses and you’ll eventually be able to determine likely outcomes given certain conditions. Much like Netflix reviews what you’ve already watched in order to make recommendations, law enforcement needs to know what environmental aspects are likely to generate specific results. While few could argue that prevention is not better than cure, are we really prepared to give up any last shred of anonymity for the greater good?

One thing is for certain, now we’ve let that genie out, we’ll have a hard time getting it back in the bottle.

Image credit: © stock.adobe.com/au/jamesteohart

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