Waters, Nigel --- "Telecommunications: the privacy front line" [1997] PrivLawPRpr 56; (1997) 4(6) Privacy Law & Policy Reporter 101

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• Law enforcement
  

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Telecommunications: the privacy front line

Nigel Waters

CND, IPND, TI, ACIF, ACA, TIO. Along with the acronyms, the telecommunications arena continues to throw up more than its fair share of privacy issues! Although telecommunications privacy has featured regularly in PLPR to date, we thought it was time to bring several of the current issues together into this special edition, not least to show the linkages between them and the way in which the new regulatory structure is already failing in some respects to deal adequately, not only with key privacy concerns, but also with wider civil liberties and consumer protection issues.

The current big issue, which may well be still hitting the headlines as this issue reaches you, is Calling Number Display (CND) and Tim Dixon tells ‘the story so far’. Dixon, who has been a consumer representative on Telstra’s CND Public Education Campaign Reference Group, explains how consumers’ privacy is at risk due to the carriers’ opportunism in exploiting the unfortunate ‘gap’ between the old (AUSTEL) and new (ACA/ACIF) regulatory mechanisms. Telstra in particular is in danger of sacrificing its carefully nurtured public image as model corporate privacy citizen if it continues to flout both the letter and the spirit of the AUSTEL CND Guidelines.

Also in this edition, Frances Wood, of the Australian Communications Authority (ACA) explains the new regulatory framework, and Telecommunications Industry Ombudsman (TIO) John Pinnock comments on how it is dealing with privacy concerns in general.

These articles build on the professional assessment of the new legislation given by Patrick Gunning in an earlier edition (see (1997) 4 PLPR 67).

Law enforcement

While attention is focussed on the privacy impact of commercial products such as CND, less widely publicised has been the continued encroachment of law enforcement and intelligence interests into the privacy of telecommunications users. Telecommunications policy analyst Holly Raiche outlines the provisions in the new legislation for a new Integrated Public Number Database (IPND). This exposes what appears to be a worrying transformation of the traditional telephone directories from a public utility into a purpose designed law enforcement tool.

Nigel Waters reports on two significant recent changes in telecommunications interception regime. Both of these developments call into question the adequacy of representation of consumer and civil liberties interests in the more sensitive areas of the new regulatory structure.

While there is at least token consultation in the ‘commercial’ areas, the Law Enforcement Advisory Committee of AUSTEL, and now of the Australian Communications Authority (ACA), has traditionally excluded not only consumer representatives but even the Privacy Commissioner, who has been left to find out about crucial developments indirectly, and belatedly seek to influence them, often when it is to late. The LEAC currently comprises law enforcement and national security agencies, Telstra, Optus, Vodafone, the Service Providers Action Network (SPAN), and relevant Government bodies (but not the Privacy Commissioner).

There are clearly legitimate public interests in law enforcement agencies having some access to information about telecommunications customers, in certain circumstances about their traffic and, in even more limited circumstances, the actual content of their communications. It is also clear that technological changes, such as the more widespread availability of encryption, and the increased use of data transmission, including over the Internet, as an alternative to voice, change the parameters.

It is not however self-evident that it is necessary, or proportionate, to give government agencies significant new powers to access personal information more easily. To do so, in the communications environment, threatens hard won civil liberties, rights and freedoms which are fundamental to a free democratic society. At the very least, changes in the powers of the state in this area deserve a much more open and public debate than the authorities seem willing to engage in. The reluctance of the Federal Government to release the intelligent and well-balanced Walsh Report on Encryption Technologies earlier this year (see (1997) 3 PLPR 181) is but one example of a disappointing and dangerous obsession with secrecy about these important issues.

It is essential that at least the Privacy Commissioner, and preferably consumer bodies as well, are represented on, or have some relationship with, the ACA Law Enforcement Advisory Committee. Experience in other areas, such as the Financial Transaction Reports scheme, where AUSTRAC has involved both the Commissioner’s office and Councils of Civil Liberties in its work, show that such representation can be effective without prejudicing the law enforcement interest.

Nigel Waters, Associate Editor.