McBride, Tim --- "The emerging surveillance society in New Zealand" [1994] PrivLawPRpr 125; (1994) 1(9) Privacy Law & Policy Reporter 168

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The emerging surveillance society in New Zealand

Following is the conclusion of Tim McBride's contribution to the 1994 University of Auckland winter lecture series. The first part (see 1 PLPR 148) concentrated on government surveillance, this part continues that PLPR 148) concentrated on government surveillance, this part continues that theme.

Other examples of increasing surveillance

At the time of the introduction of speed cameras, the police gave a commitment that they would not become 'spy cameras'. Assistant Police Commissioner Wright assured the public that film 'snapped by the cameras would be viewed and stored according to strict privacy guidelines'.

Police bulletins containing photographs and 'biographies' of former criminals were characterised by one legal commentator as 'a modern version of public branding'. Eventually the 'mugshots' were apparently discontinued following successful High Court proceedings by three councils for civil liberties and a Crown law opinion which questioned their legality.

DNA testing of suspects and offenders, such as proposed in the Criminal Investigations Bill (introduced into Parliament in 1989 by National backbencher, Warren Kyd), is another example. The Bill provided for the taking of bodily samples from suspects in certain circumstances and has been endorsed by the government. The police would prefer a comprehensive DNA testing regime where persons convicted of a wide range of serious offences would be required to provide a DNA sample. This would be stored in some form of DNA data bank which would be available to law enforcement authorities investigating serious offences in the future.

As with other contentious, privacy-invasive proposals, major issues arise. How would the testing take place? What would be the controls on its collection? Would it be the sample which is retained? Alternatively, would it be the DNA profile which is kept? Who would have access to the information? In what circumstances? What security safeguards would be put in place? How long would the information be retained? - until a person died, or would DNA profiles be 'expunged' after a certain period? The pressure to retain DNA information indefinitely would be considerable.

Mandatory reporting proposals aim at making it mandatory for social workers, doctors, nurses, teachers, child care workers and lawyers to report suspected cases of child abuse. All of us are committed to the eradication of child abuse in our community. Therefore any information relating to suspected child abuse should be given to the authorities. Yet, despite this, there are recurring concerns about the impact of a mandatory reporting regime which, despite its considerable justifications, is another form of surveillance. There is concern that it may undermine confidential relationships; that it may undermine an individual's autonomy and control over information relating to themselves; and that it may undermine the rights of persons seeking legal advice. Last year the Privacy Commissioner came out against the proposed mandatory reporting regime (18 August 1993). It was subsequently dropped from the Children, Young Persons and Their Families Amendment Bill. I understand that the issue may be reconsidered again by a select committee.

Traditionally, the confidentiality of the banker-customer relationship has been regarded as almost sacrosanct. Yet today there are well over 20 laws with requirements to divulge personal information on customers - and the list keeps growing.

Private sector surveillance

In the private sector, surveillance issues include the dramatic growth in direct marketing, 'the kernel of consumer surveillance' according to David Lyon. At the time of the introduction of the Privacy of Information Bill 1991, direct marketers complained that it would be the 'death knell' of their industry, an industry which employs many thousands of New Zealanders. That has not occurred despite the enactment of the Privacy Act 1993. Other issues include the privacy implications of telemarketing, said to be 'the fastest growing part of the NZ direct marketing industry' (Sunday Star, 5 July 1992).

The use of forms of personal identification, for example, the requiring of thumb prints by shops in an attempt to cut cheque fraud is yet another form of surveillance. This form of 'security measure' was reported as leading to a 31 per cent drop in cheque offences in the Auckland metropolitan area last year (NZ Herald, 22 September 1993).

The telecommunications 'revolution' has led to major privacy issues arising. Consider the issues arising from the interception of mobile phone communications, (as the Royals discovered to their cost). Caller Line ID, a system which allows subscribers to identify a caller's number immediately, is especially contentious.

Employee monitoring

More and more people are becoming accustomed to the watchful eye of the camera in banks and stores. Employees, as well as members of the public, in these locations and in the other types of workplaces, may be subject to covert or overt surveillance. As a surveillance technique, the video camera offers the potential to be a formidable technology of control.

What about employees who have concerns about video monitoring of their workplace? Again The Privacy Act is relevant. The information privacy principles which attempt to place limitations on the collection of personal information - in particular IPPs 1, 3, 4 - are relevant. The recording of voices may be caught by the Crimes Act (s 216B and C). Employees would have a right of access under the Privacy Act to any video footage relating to them. If access was denied or limited in some respect, a complaint could be made to the Privacy Commissioner.

Covert video surveillance may be justified when some specific offence, or on-going series of offences, is being investigated. However, before the introduction of overt video surveillance, employees should be notified, and wherever possible, their agreement to this form of surveillance obtained. This is the approach favoured by a number of privacy commissioners. They emphasise the need for controls on who has access to the video footage; the need for adequate security safeguards; and the need for video recordings of employees not to be retained any longer than is strictly necessary. In NZ, these obligations are reflected in the information privacy principles contained in the Privacy Act.

Employee testing

Testing practices used by employers to enhance their knowledge of their employees include genetic and psychological testing. The dominant privacy concerns about these practices are rooted in loss of personal autonomy, lack of consent, invasion of privacy of the person, and invasion of information privacy. The NZ Sports Drug Agency Act 1994 contains some draconian provisions. It covers blood tests not just urine tests. Anyone involved in any form of competitive sport should study this new law very carefully. It is an excellent example of the emerging surveillance society.

Drug testing is a growing privacy issue in NZ. Crown Research Institutes are actively touting their expertise in the area of employee drug testing.

Responses to surveillance

Who is reviewing and/or monitoring these developments in an official and/or private capacity? In NZ there is a lack of countervailing private organisations committed to investigating and, if necessary resisting, the spread of electronic surveillance.

In NZ a Privacy Foundation was established in 1991 at the time of the unveiling of the government's information matching proposals and the delightfully named 'Kiwi card'. My understanding is that the organisation is moribund these days and its work is being carried on, where possible, by the overstretched, unresourced Auckland Council for Civil Liberties.

While there is considerable evidence of widespread public concern about contemporary forms of surveillance - every study/opinion poll in technologically-advanced societies highlights that fact - at the same time there is clear evidence of a lack of public resistance to surveillance developments. How can individuals resist? Those who do resist - what have they got to hide?

The lack of active resistance may perhaps reflect the confidence people have in official privacy agencies. They will take care of matters. We can rest secure that our privacy interests are being adequately protected and recognised. If only that were the case. Our Privacy Commissioner would be the first to concede that he lacks the resources to be an all-purpose privacy guardian.

How do we respond as individuals to the emerging surveillance society in NZ? Do we simply accept what appears to be the inevitable - more surveillance, diminishing privacy?

We as a society need to be constantly reiterating the value we place on individual privacy. We need to recognise it as a value which underpins human dignity and other key values, for example, freedom of speech and freedom of association. The Ontario Information and Privacy Commissioner says:

We need a new privacy paradigm. Our society should insist that existing privacy rights be taken as inviolate. Those who propose to alter the existing privacy levels should be required to demonstrate that the benefits to be gained outweigh the privacy to be lost.

In such a balancing process, we must ensure that the odds are not stacked against privacy by the tendency to overestimate the perpetual benefits of technology. Only if we take an objective view of what technology can actually deliver can we accurately determine if the privacy losses are acceptable.

Those of us who possess knowledge in this area have a responsibility as guardians. We need to act as advocates for those in society who are the more visible victims of the emerging surveillance society.

Despite the passage of the Privacy Act and the excellent work of the Commissioner and his dedicated staff, we must remain forever vigilant - threats to our privacy continue to occur and at an increasing rate. We must continue to push for effective responses to the problems posed by developments in new information technology.