Privacy submission
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This is the text of my written submission to the Victorian Law Reform Commission in 2003/4. It supplemented a verbal submission.

Not long after the submission changes were made in the way 1900 numbers were able to be accessed from the internet. Now charging for entry via the internet can only be through the use of a credit card. This makes it virtually impossible for children to be able to get their parents into economic problems and it has made fraud in this area very difficult.

Headings Structure

Introduction, Employee concerns, Call Centres, Customer Perspectives, Junk Mail, Junk Fax, Property Protection, Whistleblower perspectives, Rights of the Individual, Definitions, Responsibilities of Corporations, Forms of Surveillance, Wireless Telecommunication Surveillance, The Myth of Self Regualtion, One (wo)man's castle. 1900 numbers  

Introduction

In this submission I am concerned with a number of issues and from a number of aspects. Firstly the submission is based on or contains the following propositions:

* That the individual is the basic unit in a democratic system

* The rights of the individual are basic

*The rights of the individual should only be pruned where there is a conflict with the basic rights of the society or there is risk of harm to other members of the society through the exercise of those rights

* The political system of representative democracy depends on freedom and privacy of communications between individuals

* The health and respect for the legal system depends of the security and privacy of communication between individual whistleblowers and their organizations

 

* The health and proper functioning of the commercial system depends on the security and privacy of communications between individuals and whistleblowers

* The gulf between the powerful and rich and the rest of this society is vast and is increasing rapidly. There is therefore an increasing need to ensure as far as is possible, that there is a level playing field for all and that there is not de facto disempowerment of the individual

* Commercial enterprises as non-natural persons have the same responsibilities as natural persons

* The people own the state, the political, the social and the economic system. Therefore commercial enterprises operate only with the permission of the people

 

Employee perspectives:

Call Centres

Example 1: Inbound Call centre in a phone company. Product is a Message Bank. The caller has been transferred from another area in the company. Caller and consultant develop a relationship of trust over the phone. The customer reveals that the spouse has separated and is making disturbing calls. The caller is frightened and seeking solutions. The consultant suggests referral to police. The customer gives some personal detail of self and young children to indicate that this is not a real solution. In the situation of stress the caller has lost sight of the fact that the call may be monitored and recorded.

 

One of the major areas of employment these days in the Australian economy is telemarketing and call centres. In the United Kingdom parliament they have been referred to as modern day sweatshops. Because some members of staff of one of the call centres in Scotland spoke out about the conditions on television with their faces in shadow the employer sought to have all staff computer face mapped to identify those who had spoken out. This was quite rightly disallowed. It was obviously an invasion of the privacy of the employees and it should also be regarded as an unwelcome intrusive action.

In a study conducted by RMIT School of Social Sciences and Planning Call centres are the highest employment growth area in Australia. In 2000 their were an estimated 160,000 agents employed in 4000 centres throughout Australia and an average of 8.7 of every 1,000 Australians are working in the industry. The call centre industry is being recognized as one of the highest stress professions or area of employment

The RMIT URCOT study conducted in July 2000 confirms the situation that in these centres the operators a literally tethered to their desks in many cases for almost the entire duration of the working day. All the activities of the staff members are continuously computer monitored as well as having a manager able to overhear the calls.

The computer monitors every fraction of a second that the operator is on the phone, there is a requirement in certain places that there be a minimum of 94% adherence to the schedule. Toilet breaks, stress breaks etc. are not generally recognized by the management. The computer system operates in 5 minute blocks. If an operator logs into the phone 2.6 minutes late or early there will be a 2- 5 minute penalty imposed. Every call is measured in terms of time to one tenth of a second. Standards are set by the management which must be met by the operator. Failure to meet standards by one second is enough to produce a fail or (No) result. (Attachment 3).

If the operator feels stressed needs a break or has clerical work to complete for the call one may press the "not ready" button. Time spent in this condition is also measured to the 10th of a second. Management again unilaterally and without consultation set the standard which must be met. If the "not ready" button is pressed so that an incoming call is not accepted all of these instances are counted by the computer system. In the case of inbound operations the time available to actively take calls is monitored, in the case of outbound calls the dialling is done relentlessly by the computer. The time taken to answer the call is also monitored.

In all of this Dickensian setting the computer measurement is taken by management to be accurate and unquestionable. This is the case even where there are results which are obviously inaccurate, in some cases even impossible. There is no ability for the staff or their representatives to monitor or check such operations. Even where there is disbelief by staff in the results there is no ability or right to question. It is notable that these systems are able to be and may be manipulated by management with impunity. There is of course no reverse control by staff over the management and its behaviours in this area. Where in other areas there is some slight ability to give feed back, the format is so structured as to fail to elicit proper responses.

The foregoing alone indicates that in these matters major principles of the definition of privacy have been violated in that it is clear that the persons are being treated as objects. Any one of these could be a violation collectively in total however it would be difficult to argue that they are not violations. A major part of the violations are in the intrusiveness of the monitoring, the almost total lack of consultation, disempowerment of the individual, and this is exacerbated by the uses to which the invasions of privacy are put. Furthermore it is arguable that there are considerable abuses of power involved.

It is also arguable that these activities could be regarded as a form of harassment and stalking. It is notable that another prime problem in this area is the individualization of the data. There is not an argument that the enterprise cannot collect statistical information, the individualization and the uses to which it is put are the crux of this matter.

I would therefore recommend that the uses to which such information can be put be restricted and that the improper use be prohibited.

To further compound the problem in Call Centres there is the practice of call monitoring and recording. From the point of view of the staff members this is also in general an unwarranted intrusion and an invasion of privacy.

There is the question of monitoring the phone calls of staff in call centres. The general practice at present is that there is a Recorded Voice Announcement (RVA) which usually states that the call will be monitored for coaching purposes and to improve the quality of service and also that if the caller does not agree that they should let the operator know. In many cases and certainly in the case of Telstra the main carrier in this country the operator has no idea as to when or whether the call is being monitored.

Firstly I will address the question of the educational or instructional value of the procedures used. In the case of Telstra the "monitoring is currently done at two levels. At the local level the process is done by the immediate manager who will be listening to a number of calls at will and at random. The number of calls and the criteria set solely by the management.

There is also remote monitoring this is done on one call a month for each operator, the timing and criteria at the sole control of the management. The monitoring person may well have no practical physical experience in the work of the operators and a s a result the evaluations may not be valid. The feedback may be given a month or more later. The results are expresses as a pass/fail one element disparity is recorded as a fail. An operator may take 1300 to 1500 calls per month, At the end of each month there is a performance report and review in an interview with the management. If an operator exceeds the average length of call by one second a fail is recorded as a "no". Evidence of such measures and their use is included. Attachment 1

As an educator and one who has educated those seeking to enter the profession at a tertiary level I would severely question the presence of training or educational value of such a process. Which raises the question of deception of the customer who would be unlikely to consider the fact the process may be being used for coercive or disciplinary purposes.

Operators will frequently develop rapport with the customer, indeed one of the common measures used is customer rapport. If this is achieved often the customer will develop trust in the operator as is indicated in the example above and may volunteer information of a personal and confidential nature. There would be very few centres which are overstaffed and most keep staff to a minimum Therefore there will frequently there will be a long delay, during this time there will be music played and a plethora of advertising announcements, frequently ad nauseum by this time for the vast majority of callers the warning will have faded from the memory. Further the caller may or may not have notified the operator but may be in the wrong area of the corporation. The caller may then be transferred to another extension. The operator may be the one to hear the caution but the caller may not hear the cautionary statement. In this way there has been violation of the Telecommunications Interception Act. Not only have the rights of the customer been violated but the staff member doing the monitoring has been put at risk of legal action.

I have recently had the experience of calling the RACV where the caller is not even given a choice. The RVA says that all calls will be recorded. In their sales area it is said to be for training purposes. When I have raised the question of legality there was no apparent concern for legalities. It is notable that the RACV has a virtual monopoly of this kind of service in the state. It is also notable that when a motorist has broken down, perhaps late at night, far from home perhaps in a remote area there is no choice other than to communicate phone. The motorist is therefore compelled by the RACV to participate in a process which is considered odious and possibly illegal. Compulsion in these matters should be outlawed in the proposed legislation. It is noted also that when entering an RACV installation the customers are also compulsorily videoed

I personally have notified the CEO and the board of Telstra of which I am both a staff member and a shareholder that they risk legal action if they remotely and secretly monitor my calls. My position on monitoring was endorsed by the vast majority of my colleagues who petitioned in the same manner. A copy of the petition is appended. Attachment 4

At this point it is important to distinguish between monitoring and coaching. Individual staff and the unions such as the CEPU do not have a major issue with staff initiated coaching which is where the coach sits alongside the operator or at the request of the operator sits at the managerial console. The operator asks for customer approval for there to be a third party to the conversation at the actual commencement of the conversation. Where this procedure is used and it is mutually agreed with the staff that the purpose is assisted self-development there is little problem. The problem derives partly from a kindergarten meister mentality amongst managers and a failure to acknowledge that experienced and mature customer relations phone staff are adult professionals. It is also a failure of respect for personal dignity. This is despite the Code of Conduct published and stated by corporation management. An example of such a code is appended. Attachment 5

I now return to the question of the dichotomy of training and coercion or discipline.

There is an old saying that power corrupts and that absolute power corrupts absolutely. Where the management controls all access to the sophisticated computer monitoring systems then it is possible for them to modify and even to falsify results. That this has occurred is without question. It is also current practice within corporations for management to set criteria and standards without consultation with staff, staff representatives or unions. Even worse although the Occupational Health and Safety Act requires consultation with OH&S reps before the introduction of any new procedure which is likely to affect the health safety or welfare of staff it is rare for that consultation to take place. The term consultation leaves with OH&S delegates without any real power to affect outcomes. The process of consultation becomes empty and meaningless unless it is backed up with proper provisions for effective results from consultation. It is also common practice within certain corporations for the management to vary the standards or criteria without warning and even in some cases retrospectively.

Example: A Call centre has range of computer monitoring. Without the knowledge of staff amongst the measures they have been monitored for "call parrying". This term had not been heard of by the staff it was explained that this was the new term for "call bouncing" Call bouncing or parrying is where a consultant presses the "not ready" button on the phone and the caller remains in the queue or goes to another operator. Under high stress or very high periods of incoming calls operators for years have used this device to obtain a brief respite. It is at times a devices where those who do not feel at this time fully competent with a product they can leave it for another member of one of the teams to deal with. There was no general understanding that there was any penalty for such actions. There were no standards set and it was eventually admitted by the management that some parrying was inevitable. 4 months later the alleged highest users are disciplined & one member of staff was involved in dismissal proceedings which were taken to the AIRC. The corporation concerned settled at the mediation stage. In monthly briefings the management has produced figures for the whole area which have are obviously highly inaccurate or falsified.

One of the matters that this highlights is that frequently computer monitoring is undertaken and the staff do not have access to the procedures or systems. In other words there is no ability to monitor the monitors. It is notable that the monitors themselves avoid scrutiny of their operations like the plague. There is no requirement for management to be accountable or to justify their monitoring processes or detail. Computer monitoring systems are usually only accessible by the management and are able to be manipulated and changed, such procedures are an obvious denial of natural justice and should not be permitted to be used as punitive systems. When abused in this manner a monitoring system dehumanizes both the operator and the manager concerned. It reduces the operator to the status of a mere cog in a mechanical process.

This is of course counter to the published Code of Conduct and to the Further it is indeed highly likely to be counter productive. In cases where the functional objective is customer assistance the operator is forced to become focused on the statistical performance rather than on service. In this type of situation everyone concerned looses.

bulletI would therefore recommend that it be mandatory for employers to notify staff prior to the introduction of any such systems and to consult with OH&S and union representative in a meaningful manner, in good faith prior to any introduction. Precedent for some aspects of this type of provision has been set in the American State of Connecticut.

This leads to the question of statistics and their use and abuse. The American author Mark Twain says the statement that "There are three kinds of lies: lies, damned lies. And statistics. In the preface to "Statistics for the Behavioural Sciences (3rd edition 1992) (West Publishing) Gravetter & Wallnau state that it reflects a commonly held belief that statistics (or perhaps even statisticians) should not be trusted. They go on to say: "Like any other tool statistics can be misused, which may result in misleading distorted, or incorrect conclusions. It is no small wonder that we are sometimes sceptical when a statistician presents findings."

Given this statement which is very similar to the one I was given by my lecturer in the subject half a century ago when I studied statistical methods, it is little wonder that staff feel antagonism towards statistical monitoring of their performance. This is further compounded where there is lack of confidence in the managers who are responsible for the gathering and interpretation of the figures. It has been my experience in one area of Telstra where I asked the management person who was presenting the statistics whether he was referring to the mean, the median or the modal value when using the term "average". The person concerned did not know the difference between the three measures. Though this incident took place several years ago I have still had no evidence that understanding of the difference had been acquired. The person concerned appears to have no background or skill in statistics and yet produces figures which have been used to threaten staff with disciplinary action and even in attempted dismissal procedures.

I would believe that there is little problem with the employer statistically monitoring the "system". The problem comes where the attempt is made to apply those statistics to individuals especially where it is imposed without consultation and without their permission. I would point out that there is little advantage to using the term "consultation" in legislation as this term still leaves all decision making in the hands of the management. Management is not required to act on the wishes of the staff or their representatives. Historically "consultative approaches" have failed because of the lack of any legal requirement to incorporate reasonable suggestions raised in consultation or to justify management decisions taken after the consultation.

bulletI would recommend that in view of the foregoing any legislative provisions which address the question of consultation should have a provision concerning a form of agreement or arbitration where agreement cannot be reached

It must be said at this time that the it has been my experience over more than half a century of work experience that in general the Australian worker attitude is highly professional and work oriented. Recent studies have shown that Australian workers work harder and longer than almost any others in the world. A recent study by one of the major accounting firms in Australia also indicated the Australians also took fewer sick days then almost any other group in the western world. Even in union meetings which I used to hold within Telstra most of the material under discussion concerned ways of improving procedures. In some cases these days staff are also shareholders. In Telstra over 90% of the staff are also shareholders. They do not however have any say whatsoever in the running or the management of the corporation. They are effectively voiceless and disenfranchised whist being subjected to monitoring and surveillance of a high order. In view of the above it is illogical, unfair and unwarranted to treat Australian workers in such a manner. As matters stand at the moment it is an affront and the legislation should provide for thereto be empowered consultation where there is to be the introduction or use of monitoring or surveillance.

Fundamental assumptions need to be reconsidered. Provided that the staff selection procedures have been valid. Provided performance is a goal and that there is mutual respect then one can make assumptions that only a very small percentage of staff will be likely to offend or not to perform to the best of their ability. It is disrespectful and insulting to subject the majority of the staff to search or impose surveillance because of the mere possibility that an individual "might" offend. In relation to physical theft if protection is necessary it is better and more desirable to protect the equipment with tag technology rather than to invade the privacy of the staff. 

bullet Where the management shows distrust there should at least be provision for a quid pro quo, the staff should have the right to inspect the books and the transactions of the corporation.

There are circumstances in which a staff member may seek information from systems in order to improve his/her performance. Where this is staff initiated then there would be little or no argument. There are some situations in certain industries where the recording of conversations may be desirable in order to protect staff or the transaction. Where staff has requested the recording process and an agreement reached between management and appropriate unions, provided the customers are aware and protected then implementation could take place. This sort of situation may well arise in the gambling or the banking industries. If the staff requests voice monitoring of calls for their protection then this should not be blocked. However the information should not then be used for other purposes such as staff evaluation.

Customer perspectives

At present incoming callers may be told that calls may be monitored for coaching purposes. I emphasis the "may" as there are a number of situations where the caller may not be told that the call is being monitored or recorded. One such situation is where the caller is put through by a consultant in a Telstra shop, in this case the consultant may hear the RVA but the customer will not. There are also cases where the first contact consultant is required in most cases to introduce the customer to a consultant in another area. Then a distinct possibility that the customer will not have heard the RVA. The RVA itself might well be considered as a blatant attempt to avoid the basic intent of the legislation to protect privacy. The strategy is then and to justify invasions of privacy of both general public and staff by the automatic nature of the process and then an appeal by the corporations to the commonality of use.

There is also the question of understanding and of consent. At present the use of the RVA assumes understanding by the caller. This may not of course be the case especially in the multicultural society which is a hallmark of Australia. And these people are therefore at risk of violation of their privacy. There is the case of those who are diffident in relation to their language skills. It is common for them to have another family member do the initial part of the call and then take over them main part of the communication themselves, often with the assistance of their friend, or family member. In such cases it should not be expected that they will have understood or heard the message.

There is also the question to be taken up and resolved as to the manner of application of the RVA. The onus is quite deliberately put on the caller and the general public in the position of having to protect their privacy by taking action. I do not believe that this was the intention of the parliament or of the general public. Indeed I believe that the reverse was and should be the case. 

bullet That is to say that if the carrier or a company wishes to take such action it should be required to justify each action. I would submit that in such matters the use of automatic systems should be disallowed except in some specially designated cases.

The issue has already been raised of the uses to which the monitoring is being put. It is reasonable to suggest that few would agree to their conversations with the representative being used for punitive or bullying purposes. I have become aware of, or involved, in cases where the monitoring of calls, often secret and remote, have been used for what must only be considered bullying or harassment. I would find it difficult to believe that the callers would wish to be involved in such a process.

I have notified the CEO and the Board of Telstra that I do not agree to being secretly or remotely monitored. I also notified them that I believed the process to be not only improper but also a contravention of the Telecommunications Interception Act. In doing this I was and am in then possession of a legal opinion that the legality was questionable. Telstra replied that it had legal opinion that they were acting legally. I pointed out that I could not be required to act in a manner which could be in contravention of the law, or be required to take place in an illegal action. I requested a copy of the alleged legal opinion and this was not and has not been to this day forthcoming. Those replies which were given were obviously and demonstrably untrue. Telstra management for instance claimed consultation with the Unions. Attached (Attachment 9) are copies of statements of attitudes of both unions concerned. In the same communication I pointed to the fact that there was information which was inaccurate and which was demonstrably untrue. I had been joined in my action by a petition of the majority of my fellow workers. Some of these colleagues were harassed in the following weeks. 

bullet There must be legislation to prevent further such occurrences. What I have reported here are clear violations of the privacy of both staff and of the general public.

As the phone service is ubiquitous there are only rare individuals who would not use the telecommunications networks at some time. Therefore the procedures affect the vast majority of people in the community.

A copy of some of this correspondence is appended Attachment6

 

We now should consider the question of some telemarketing or out-bounding practices from call centres. This is generally the practice of calling customers for sales or promotional purposes. There is generally a high level of turnover and of unplanned absence in this industry. It therefore is common that the staff do no get adequate training in legal requirements or sensitivities of customers. Generally speaking the operators are paid on results. They are under pressure to record sales even where they do not actually occur. This practice is called "slamming". Though officially disapproved and the pressure is maintained on the operator.

Pressure is increased on operators in the larger "boiler rooms" by the use of a technology referred to as "predictive diallers". These devices make many calls simultaneously, they then connect the operator to the first of those called who picks up the phone. A person who has been called and who picks up later may hear what is referred to in the industry as "dead air" they may hear a call with no one the other end. Some predictive diallers will attempt to delay or deter the recipient from hanging up by injecting a signal down the line which may be a simulated dial tone. There are a large number of telemarketing operators in the country and theses are supplemented by the international operators from areas such as India who call our households. Therefore daily there are large numbers of householders who pick up their phones and hear either silence, dial tone or static noises. Little wonder that householders become concerned that they are getting what appear to be malicious calls. They do not know what has caused the event and therefore they become worried and fearful. This is not only invasion of privacy on a massive scale but might reasonably be considered a form of mental terrorism. As I work in an inbound centre I get numerous calls every day from concerned and agitated people. Persons who are in marital break up, aged persons and others all unaware of the origin of these intrusions into their privacy and are caused unnecessary mental anguish and concern.

It is not at present possible to just put a sticker on your phone as you can on your mail box saying "no junk mail". However I would propose several measures in the proposed privacy legislation. 

bulletFirstly the establishment of a DNC or Do Not Call register where householders and others can register and it would be an offence for predictive diallers to call such numbers. 
bulletSecondly a requirement that all predictive diallers be required to transmit identification information to calling number display phones. This would give a measure of control to people over the incoming calls. 
bulletThirdly there should be a prohibition on the use of predictive diallers which produce dead air time. A register of predictive dial numbers should be established and maintained and a complaints centre established. The funding for such measures could be through a levy on telemarketing and polling companies especially those using predictive diallers.

Junk Fax

Telemarketing has for some time now been engaged in a process termed Junk Fax. This can be defined as unsolicited fax material usually of a commercial nature. In the USA the Telephone Consumer Protection Act (TCPA) of 1991 specifically prohibits the broadcasting and transmission of unsolicited commercial faxes. Furthermore all commercial faxes are required to contain accurate information on the time and date they were sent and the phone number of the originating fax machine. Part of the justification for the introduction of legislation prohibiting this activity is that they are really cost shifted advertising as the recipient bears the cost of the paper, toner and wear on the equipment rather than the advertiser. In 1995 a successful class action was taken against the Hooters Restaurant chain which in 2001 resulted in a Federal Court award of $12m against Hooters.

The above demonstrates just some of the undesirable aspects of monitoring and surveillance where there is not adequate legislative control over corporations and management.

It is notable that the business world fights for, and defends the security of its communications. It does this with great energy and the devotion of considerable resources to this end. However they do not act even in the same direction let alone vigour where the rights of the ordinary citizen are concerned.

Protection of property and equipment

In Australia businesses have a concern with the protection of their property and equipment. Such concern in a non-aboriginal community is perhaps understandable. None the less the procedures used for searching and monitoring staff and the public can be highly intrusive and demeaning.

Whist Australian people have a tendency to be innovative

Many employers think heavily within the square. They accept and seek to operate in what is called "world best practice". As a concept it is for the most part an illusion. World best practice applies in the particular country of origin. Frequently such things take place in environments which are unsuited to Australian society, economic frame works and organizational structures. Whilst generally Australians pride themselves on innovation and flexible thinking this appears not to be the case in regard to employers.

Having said the above I would suggest that the best and most appropriate philosophy or frame of reference would be that used by Richardo Semler. Semler who heads one of the biggest and most successful corporations in Brazil saw workers exiting from one of his factories. They were being searched by security guards. Semler considered this insulting and demeaning. When he inquired of his managers he was told that it was to prevent theft of equipment and tools. . He inquired as to how much in value was stolen and how much was the cost of the security measures. He found that the cost of security was slightly greater than the value of the theft. With a prime focus on the indignity to the "employees" he had security removed. Not only did theft decrease but in fact equipment was returned. A win/ win situation. (Maverick)

It is notable that he estimated that in most corporations there might be 3% of the people who might seek to take advantage of the employer’s trust. "But is this a valid reason to subject 97% to a daily ritual of humiliation?". Indeed the same type of question could be asked in regard to the statistical monitoring referred to earlier. Fundamental assumptions need to be reconsidered. Provided that the staff selection procedures have been valid. Provided performance is a goal and that there is mutual respect then one can make assumptions that only a very small percentage of staff will be likely to offend or not to perform to the best of their ability. It is disrespectful and insulting to subject the majority of the staff to search or impose surveillance because of the mere possibility that an individual "might" offend. In relation to physical theft if protection is necessary it is better and more desirable to protect the equipment with tag technology rather than to invade the privacy of the staff. Where the management shows distrust there should at least be provision for a quid pro quo, the staff should have the right to inspect the books and the transactions of the corporation.

In the case of the demand of some stores for customers or members of the public to have their bags opened for inspection. The customer’s privacy and dignity invaded by being forced to open their bags for inspection. It should be required that the stores which act in this manner should allow their books to be inspected for profiteering which after all is a form of betrayal of trust given by the shopper. Sauce for the goose is sauce for the gander. If legislation permits of one it should in fairness permit the other.

 

Whistleblower perspectives

Example1: Member of whistleblowers association is aware that a politician for election to parliament is involved in kick back tendering for building projects. Whistleblower calls to a call centre to find out the number to call for an appropriate authority to contact. After establishing a trust contact with the consultant he explains details.

Example2: Whistleblower investigating what may be improper involvement by a cabinet minister in land deals. Makes call to colleague to arrange for question on the matter to be asked at a public meeting in another area.

To keep the public service, politicians, commercial and financial institutions operating honestly and properly. In order to ensure and maintain honesty and integrity in the policing and judicial system. It is necessary, essential and indeed vital to have, encourage, protect and facilitate whistleblowing (WB) and the people who are the whistleblowers.

Whistleblowers in most cases are challenging powerful and influential organizations it is therefore essential that WB communications are at all times as secure and confidential as possible in order that justice be facilitated.

Whistleblowers and whistleblower organizations should be legally recognized as special interest groups. Their rights and obligations in that capacity could be specified. WB organizations and their members should be able to register though they should not be required to do so. Any police or other official agency which seeks to have monitoring of registered WB’s must be required to obtain a court order before doing so.

bulletThere should be established a review board or commission. The commission should contain a majority of representatives from WB organizations, workers representatives, and representatives of human rights organizations. It functions should include review of phone or other communications monitoring by police or other authorities. The powers should cover all forms of invasion of privacy. Should it be determined that the action was not justified, or not for a proper purpose, then there should be severe punitive penalties.
bulletThere should also be penalties imposed for improper or inappropriate use of material or information obtained by interception of communications.
bulletThe board or commission should also have the power to investigate communications interception by individuals. Where there have been violations appropriate penalties should be imposed. Where there has been a violation of the communications of a registered WB penalties should be doubled.
bulletThe board or commission should be required to give full written reasons for its decisions. The area should be a no cost area. The board or commission should operate in an investigative manner rather than in the more traditional legalistic manner, blocking and avoiding. Those corporations and/or agencies which offend frequently should have escalated penalties. Whilst it is anticipated that the majority of the complaints will initiated by individuals from the general public it should be possible for the commission to initiate enquiries also.

Further Underpinnings

The modern state is based on the individual, and on the implied or assumed rights of the individual. Australia has little explicit protection of the rights of natural persons. The law should protect those rights which are implied and assumed especially in view of the lack of specific constitutional protection here. In Australia the lack of a Bill of Rights also places a burden of responsibility on legislators to ensure that there is not a denial or an erosion of the rights of the individual. It is also incumbent to ensure that there is not loss of rights by stealth through incremental technological creep and through usage creep and an application of a form of Gresham's Law. It would be generally accepted that certain institutions such as military establishments or where unusual levels of security are deemed necessary there could be relaxation of some restrictions, but only with the proper safeguards to protect against abuse of privilege. This is necessary in order to avoid the development of a "1984"s syndrome.

I would contend that the finding of Murphy CJ that there is an "implied" constitutional right of political comment establishes a steppingstone. Whereas there are not specified rights of privacy similar arguments must be used to protect other inalienable rights. Such a right is the right to privacy and the security of communications. Without the right to secure, unmonitored communications the exercise of democratic functions would become inoperable. For there to be free and fair elections there can be no argument that communications must be secure and without invasion. We would too easily descend into a police state and dictatorship without both formal and informal recognition of this fact. The modern technological society is a two edged sword. It may equally easily become a monster or a madonna. It is up to the intelligent and responsible society to establish the safeguards and guidelines which will take us forward rather than to allow the imposition of a despotism.

 

The vast majority of new technologies are inherently amoral. The use to which the technology is put imposes the morality. It is therefore important to ensure that abuse is prevented and contained by legislation and regulation. There is a fundamental assumption that institutions within a democratic society exist and operate only with the permission of that society. It therefore follows that there may be conditions imposed with which they must comply for their establishment, continued existence and operation. Organizations, whether they are of public service or commercial in nature are subject to these constraints. 

The Harvester Case of 1904 established the concept of the Basic Living Wage. What in effect the judgement said was that there was an implied condition that if an employer wished to operate within the society or economy it must be able to, and prepared to meet the condition of paying a liveable wage to its employees. If they could or would not do so they had no right to operate as employers within the economy.

I would also contend that there is a further implication of this and perhaps other decisions which has not yet been specified in legislation and which it is important and perhaps vital to enunciate. Human entities are regarded as, and referred to as "Natural Persons". Institutions as entities are non-natural persons and as such they have been accorded rights at law. The rights of non-natural persons need to be codified, as do the rights of natural persons. 

bulletThere is also a great need to codify the obligations and duties of corporations, and institutions. A start could be made in the area of the obligations in regard to respect for the individual and the privacy of the individual citizen. There are corporations such as Telstra which have published Codes of Conduct. Whilst these may in some areas look good on paper in practice they are more observed in their breach especially by management. Over view of these Codes is put in high level management. Appeal is from Caesar to Caesar and completely ineffective.

DEFINITIONS

 

It has been said that Privacy has been extremely difficult to define, and that this is an impediment to having it within the justice system or in the drafting of legislation. Whilst there may well be difficulties it is not by any means an impossible or insurmountable problem. With good will and genuine determination there is little that is beyond the wit of humans.

Privacy in the USA has been defined as the expectation that confidential personal information disclosed in a private place will not be disclosed to third parties, when that disclosure would cause either embarrassment or emotional distress to a person of reasonable sensibilities. In this context "information" is interpreted to include facts, images and disparaging opinions (Robert Standler Privacy Law in the USA 1997). A private place has been construed to be where it would reasonably be expected to be private such as a home, a phone booth, or a hotel room.

It is the development of legal privacy in the USA it would seem that the first publication of consideration privacy was by Warren and Brandeis, The Right to Privacy, 4 Harvard L.Rev 193 (1890) with a codification of principles by Prosser, Privacy 48 Cal.L Review 383 (1960).

Until the late 19th century it would appear that the right to privacy was considered so obvious that there it was considered that there was no need to specify, legalize, or codify in the matter.

This is in line with the concept developed by Professor Geoffrey Blainey in the Tyranny of Distance. With increase in commercialization and in technology and the increasing transgressions especially by commercial interests codification is now necessary. Earlier and even now transgressions could and should be regarded as a trespass or an assault on the person.

Another concept to which there should be regard in relation to definitions and the framing of legislation is "the right to be let alone". This was used in the US Supreme Court decision Wheaton v Peters (1834) and again used in the first wiretapping case Olmstead v US (1926) also in the Supreme Court. It is later quoted in the majority decision of the Supreme Court In the case of U.S, v Morton Salt Co. (1949) "…….the right to be let alone – the most comprehensive of rights and the right most valued by civilized men,…." These decisions and the dozens which have followed using the same principle indicate the importance which is place on this aspect or definition of privacy by the United States judiciary.

It has also been said that one of the impediments to codification is consistency. The British based legal systems have never been noted for their consistency. The rules of evidence for instance are redolent with inconsistencies, but the pragmatic approach is taken. The judiciary though the system of precedents and appeals has tended to move in socially and legally acceptable directions, albeit at times stumbling along the pathway. In the modern technological society with good communication it is now becoming more common for the populace to exert pressure When the system does stumble or take a wrong turning, and through this pressure modification and therefore some degree of control can be applied. With this sort of philosophy in place then we could have a workable legislation on privacy in place.

These checks and balances enable the system to operate using what in the computer lexicon might be termed "fuzzy logic". Here I would contend that the analogy is quite appropriate. The computer is inherently a highly logical and predictable system, but without the introduction of fuzzy logic it would not be able to perform many real world simple functions. Such functions as this are those of perception that humans do on a moment to moment basis.

It is recognized that due to the social, personal and technical complexities involved in communications and privacy considerable difficulties exist. As an attachment (2) I put forward a model which incorporates the Shannon-Weaver communications model. I would hope that this schematic could provide a starting point for analysis and determination especially with problematic cases.

bulletIt must be recognized that public entities such as corporations have the similar responsibilities as those of the other citizens of society. Indeed it may be argued that their responsibilities are greater by virtue of their greater command over capital and access to the organs of power within the society. Their economic power oft referred to as deep pockets must not be permitted to pervert or divert the course of Justice, as has too often been the case. The legislation concerning privacy should take these matters into account and too little emphasis placed on their responsibilities. The Robert Owens, the Ricardo Semlers of this world have shown that there are those with the will as well as the capability to shoulder those responsibilities. Unfortunately they are notable as they appear to be the exception not the rule. Because corporations, generally have more power and wider effect in their operations and as they have demonstrated that if unregulated they frequently behave in socially and economically unacceptable manner. It is therefore necessary to have appropriate legislative and regulatory measures in place.

Ubiquitous Communication Surveillance

Technology has reached the level where planet wide surveillance of al telephone commun1cations planet wide is not only possible but is practised. Known systems such as Echelon monitor all mobile phone communications.

They also monitor all international phone calls. The only possible protection against such practices is encodement of the transmissions. These days there are few codes which cannot be broken if it is deemed necessary. At least through the abilities for exposure and information gathering through the internet these activities have been made public.

National governments such as Tony Blair’s United kingdom government have attempted to introduce legislation requiring telephone carriers to monitor and record all telephone and fax transmissions in the country and keep them archived for a period of 4 years. Similar provisions have been sought in the European Union by international police organizations. We know as Shakespeare has Mark Anthony say "that they are all of them, honourable men" but one is filled with horror at the implications for a worldwide police state.

In the U.K. up until now only the Police, Intelligence services, customs and taxation had power to access detailed communications logs email records and phone location information.

In June 2002 the home secretary, David Blunkett, quietly introduced the proposed Regulation of Investigatory Powers Act. This proposed legislation would have given the same power to a wide range of government departments, local councils and other. Only public revulsion and pressure caused withdrawal of the proposed legislation.

A little over a week later on June 18th the Home Secretary was also forced to withdraw another order which would have given the same list of over 1039 departments and quangos the power to authorise themselves to conduct surveillance against individuals and to use informers.

In April of 2001 Alan Griffiths, a journalist writing for Management Today (Attachment 7) the prestige magazine of the prestigious Australian Institute of Management published matters I had drawn attention to in regard to Echelon and other such technologies. Amongst other things I referred to programs used by corporations to spy on, and invade the privacy of their employees. I referred to programmes such as Cameo and Mosaic and their ability to monitor phone and email communications. These programmes and facilities are supplemented by technologies such as "Carnivore" which is a refinement of older computer technology and is a black box installed in Internet Service Provider (ISP) systems to monitor all email and internet communications passing through their node. I pointed out that such programmes and technologies could be programmed to seek out particular words and phrases. There is no doubt that such programmes are used by employers and corporations in the USA, Canada, the U.K., and also here. I also pointed out that the major carrier Telstra was suspected of using such programmes and it had either refused or failed to admit or deny this.

After the publication of the article I was taken before Telstra management on several occasions. During the investigation by Telstra the management admitted that I had not spoken on behalf of Telstra, they admitted that there were no inaccuracies in my statements, but they insisted in issuing me with the written warning which is attached (Attachment 8). They did this in spite of my own protests and those of the CEPU.

 

bulletIn view of the foregoing I would recommend that use by individual and organizations of spy programs and technologies like that of Echelon or Mosaic be prohibited. That where such programs have been used that all those who have been subject to this invasion of privacy be notified. That all records obtained in this manner be destroyed immediately. That severe penalties by made available for the introduction or use of such programmes and for the improper use of information gathered by this means. That information gathered in this manner be considered illegal. That it be made an offence to take action against staff members for seeking to protect themselves and other against such odious practices.

Surveillance of Email and Nets

 

The foregoing leads to a consideration of the question of deliberate monitoring of emails, internet, intranet and other communications in the workplace.

Common arguments put forward by employers to seek to justify spying and intrusion into communications are:

* The employer owns the system and therefore has the right to do so.

* The employer is responsible for the product and therefore a right to monitor

* The employer must guarantee a safe work environment and must prevent harassment

* The employer has the right to protect trade secrets

 

bulletI would recommend that in such matters the proper approach should be similar to that made in regard to phone companies and even more so to the postal service. The emails and nets should be regarded as carriers. If a letter is posted in an envelope and addressed to an individual at business premises and marked "personal" or "confidential" it would be considered improper if not illegal to open and read such a communication.
bulletI would further recommend that a similar approach be adopted in regard to emails. If addressed as confidential or personal then an email should be respected as such even by the owner of the premises, or the system. If considered desirable, then this proposition could have some proviso. For instance, that if there are reasonable grounds to believe that there is an abuse of the system then with the consultation of the Union, or a designated representative, there could be an investigation of specific communications in the presence of the staff member concerned.
bulletIn regard to the internet and intranet communications unsolicited communications are common. In the circumstances I would recommend that it be recognized that it is unjust that a staff member who has not requested or sought a particular communication should face disciplinary action should such a communication be found on his or her workplace computer. There are few if any computer systems which cannot be entered and this fact should be recognized in the legislation. Indeed such provisions are necessary to ensure that there is not the likelihood that there is the possibility of a double injustice. It would be quire possible that a person who is a victim of harassment with say sexually improper data on the system would have be disciplined because it was there. The problem is exacerbated where there are many corporations which keep records of even every keystroke made by their staff.

 

 

Biometric Surveillance

In general Biometrics is a process of identification of individual though examination of unique features or measurements of individual humans. Fingerprints are probably the best known biometric measures, retinas, vein dimensions, body odour, voice prints, DNA, and facial measurements are others.

In 1994 several employees of Excel in the United Kingdom found conditions imposed by the corporation on staff to be so terrible as to resemble sweatshops. They were interviewed by British Television channel 4. In order to protect their actual identity the faces were distorted. Subsequently Excel sought to have all their staff have their faces computer video mapped to enable identification of those who had been prepared to speak out against the bad management practices used by the company in Call Centres. This is a highly undesirable practice and an assault on both privacy and on freedom of speech. Though it may be said that it could not happen here, it should be noted that the Company Excel operates in Australia in some areas in partnership with Telstra.

In the United States the Tampa Police department used the system to scan the crowds at the Superbowl and surrounding area to seek identify suspected terrorists.

These systems raise serious questions regarding not only invasion of privacy but also of social and political engineering. It could be, and probably has been, used to identify those who protest against contentious government decisions. The potential for targeting of individual exercising democratic rights is obvious. Indeed the facial biometric system is popular amongst casino operators who use the system now to identify card counters and others that they consider undesirable. Many governments use the system at border crossings and airports.

bulletIt is therefore highly desirable that privacy legislation specifies the manner of use of this form of monitoring of individuals and the uses to which information gathered in this manner can be put. I so recommend.
bulletI would recommend that the use should be restricted in similar manner to that I have recommended for voice monitoring. Where it is to be used there should be the need to get a judicial warrant and there should be a mandatory review by a panel of use of the process.
bulletI would also recommend that where such systems should be discouraged or prohibited in normal employment where they are to be used in an employment situation it should be mandatory for there to be full disclosure to the staff and to those entering the facility.

It is extremely important that there be not only legislative regulation but also severe penalties for error or abuse. It has been reported that tests have shown very high levels of false positive identification and of false negative identification. False identification of innocent people should be heavily penalised. Failure to identify malefactors will have its own penalties.

Voice Prints

Another biometric which has recently been introduced within the telecommunications industry in particular has been voiceprint evidence of contractual obligations. Voiceprints and voice stress analysis technology is in a similar category as lie detector tests. It has been introduced by Telstra unilaterally, without reference to, or agreement with unions.

DNA

DNA testing and privacy is one of the rapidly emerging which needs consideration. Generally accepted by courts as being "proof" it must be recogized as yet another technology which requires constant scrutiny and review. In the past few years there have been some notable examples which have raised serious question in regard to the accuracy and interpretations made by those styled as experts. Amongst the most private of things is ones parentage. It must also be considered vital that in cases of serious crime the wrong people are not labelled as criminal. There are few who would not agree that there are great dangers in the privacy of information related to ones genetic composition. The dangers of social engineering or of targeting of individuals or groups of individuals within a community are massive and must be avoided by all appropriate legislation and means.

There are also the questions of revelation of genetic and other medical information to employers and insurance entities. I would believe that it is a very widely held view that any such information must be confidential to the individual and revealed only at his or her initiation or desire. I would recommend that there must be no coercion permitted in these matters or deliberate discrimination against those who wish that their information be kept confidential. In order that this may be given effect legislation should prohibit the seeking of genetic information by employers, commercial, or other interests in relation to contracts or agreements.

Combined Databases Profiling & Locating

Of particular concern is the development in some countries of private databases which combine data from a range of sources and other databases. These sources include credit cards and discount cards, transponders in the car for tollway travel, subscription and donation records to name just a few. Such information is then on-sold to intermediate and end users. There is considerable danger in private organizations with large economic and political interests in being able to use and perhaps abuse such information without the ability of the general community to approve or disapprove of the use of such powerful and often personal information. Nor do they have the ability to monitor the accuracy of the information which is being disseminated and on-sold sometime to government agencies and departments. One such system Computer Aided Passenger Pre-Screening (CAPPS) already provides information which is said to provide a profiling system which highlights traveler "anomalies". Such profiling is taken out of context. For example: jetlagged from an international flight you wait for a connecting flight. You visit a bookstore you take the wrong book from a shelf and pay with your credit card. The book relates to mining and the use of explosives. As you enter the airport terminal you are profiled and rejected.

bulletI would recommend that such practices as profiling and database combination should be prohibited by legislation. Should it be adjudged that in some cases there should be some such activity then the strictest supervision and assessments be imposed as I have indicated for other areas above. Again severe penalties should be available for inaccuracies, abuse or misuse. There should also be adequate avenues for compensation for those who have become victims in such improper use or activities.
bulletI would also recommend that the "fair usage principle" should be applied. That is to say information gather for one purpose should not be used for another purpose without the explicit permission of the individual.

It is to be noted that commonplace video surveillance system can often be converted to hi tech biometrics. With the decreasing cost of conversion to these hi tech biometric systems there is and increasing likelihood of such conversions taking place unless there are legislative restrictions in place.

bulletI would therefore recommend that there be enacted legislative prohibition against such upgrading.

 

The public should be able to walk the streets and corridors without "big brother’ looking over everyone’s shoulder at every turn of the corner. Australians have taken for granted and it is part of our value system that the citizen should be able to travel freely and without identity tracking throughout the whole of our beautiful country. It is not only a freedom but also a right

In emergency and rescue situations it is highly desirable to pinpoint the location of individuals and groups in trouble or in need of rescue. It is however a different matter where ordinary citizens are having their privacy invaded, their everyday movements monitored and reported. The general society and the towns and cities in which we live must not be permitted to become virtual prisons without walls. It is indeed a contradiction when countries within Europe are tearing down border posts the and freeing travel that there are at the same time those who are seeking to tag humans as we do the birds to monitor their every movement, but with far less noble motives.

 

Wireless telecommunications

The cell phone technology is currently in the situation where the location of an individual using a cell phone can be pinpointed to within 100 feet through triangulation of transmissions. In the United States there is federal law which requires phone service providers to maintain such capabilities.

bulletAgain I would recommend that the use of such facilities and information be controlled and the monitors be monitored. The price of democracy and freedom is not only eternal vigilance, but also foresight, and the courage to speak out and the courage to act or enact.

 

It is a fact of life and society that there are and will always those who will abuse and misuse freedom and the right of privacy. Indeed those persons and organizations provided they do not become too numerous or powerful provide the immunization against widespread corruption and dictatorship. However it is important to at all time maintain the balance between the Yin and the Yang, between the forces of good and evil. Therefore there must be constant vigil over those who would use the excuse of the odd malefactor to impose tyranny of the people. The society to be healthy must ensure that privacy, and freedom are not only protected but nurtured. Without the wisdom to maintain the balance our civilizations will decline and decay. Like many other species we may find ourselves out on an evolutionary limb if we do not maintain the ability of free thought and action.

Self Regulation Myth

Industry lobbies are well funded and highly influential in political arenas. In most countries where there has been public pressure in regard to privacy and basic rights these lobbies have frequently called for self-regulation. There are few if any areas where such self-regulation has been satisfactory, It just does not work. Big corporations like Telstra have wonderful sounding Codes of Conduct and operating principles, they are rarely adhered to and are more observed in the breach than the application.

Record Reversal

In all of the invasions of privacy and wrongful use, erroneous data base material it is vital that there be adequate and proper systems in place to permit of a speedy restoration of the good name and standing in the community for the victim. Though the American Federal Trade Commission has state that credit card identity theft is the fastest growing crime there are few places which have enacted such provisions. In the case of identity theft it is common in the USA for the victims (c16%) to find themselves not only with erroneous data but financially embarrassed and even with false criminal records.

bulletI recommend that before this situation becomes a serious problem here the lesson should be learned and the legislative processes should be put in place to cover the problem.

A further aspect of this area is that frequently the individual is unaware of just what information has been gathered let alone whether it is accurate. Employers tend and employer agencies tend to run background checks on staff and also on job applicants. It is rare that the fact that there is to be a search is disclosed. It is extremely rare that the database to be used is disclosed and it is almost unheard of for a copy of the data to be shown to the staff member or intending staff member. Applicants may fail to get a job, or incumbents may loose their positions and never know the reason. This is a gross injustice and a result of what must be termed an improper invasion of privacy and a civil injustice.

Indeed it in some places the inaccuracy of such databases can not only pervert the course of justice but also the course of democracy. Indeed it is arguable that the present likelihood of an international war in our time may be due to such inaccuracies. A recent television documentary concerning the election of George W. Bush indicated a high rate of inaccuracies in backgrounding of voters who were inaccurately identified as being criminals and therefore ineligible to vote. The course of world history may well have hinged on reliance on this unregulated and unreliable source of information and without the possibility of redress or recall. One is minded of the demands of the 19th century Chartists.

 

bulletI therefore recommend that in such situations where backgrounding has been done that it should be mandatory for the individual concerned to be given a copy of the background report.

 

Putting the curtains back on the castle

There was a time in living memory, and not that long ago when it was said that a person’s home was (in those days) his/her castle. It might now be said that the moat is drying up and the drawbridge is down.

Currently in the state of Victoria there are over 100 minor, bureaucrats, and petty officials who are empowered to enter the home, without permission of the owner or occupant and without a warrant and photograph the interior and even under the bed. This is clearly invasion of privacy at the most basic level. These officials range from town planning assistants to health department and council petty officials.

bulletI recommend that unless the entry is required for life threatening emergency then similar restrictions be placed on their powers of entry as those which apply to police requiring a court order for entry. That there be a need for reasonable justification presented and that there be review by a body as provided for in earlier recommendations.

With the introduction of "Pay Television and Digital Television there has been introduced the black box and there has developed the ability to monitor and record the viewing habits and preferences of those at the receiver end.

Furthermore increasing amounts of copyright material have become available and have been marketed through the internet. A new technology has been introduced to ensure that the copyright owners are paid for the use of their material. This has given rise to databases which have the ability to identify who listens, watches, or even reads this copyright materials. The potential for misuse is great.

bulletI would recommend and it is time that legislators in Victoria created legislative provisions to ensure that this area does not become involved in profiling. I would suggest that this area is one of urgency and importance as the internet is almost ubiquitous in its use by young people and our children must be protected from predator marketers. It is also vital that their privacy is protected in order that natural childish curiosity and adolescent fantasies do not make the individual for life as having particular characteristics which taken out of contest could give false and even damaging profiles of the adult individual.

 

1900 Number concerns

So-called Information Call numbers are a huge money-spinner for both the carrier Telstra and for the service providers and information providers. These numbers can be accesses through the telephone system or through the internet. The range of services offered is wide, they vary from legal and medical advice, tertiary institution enrolment, consular services, through to music and games downloads and to pornography. Australian legislation has sought to protect children from hard core porn though the need to register for hard core sites. Generally speaking it has however been a failure.

Major concern which arise are that minors can without understanding commit their parents to thousands of dollars of bills without the parent having prior knowledge. The system also generates data which can be incorrectly attributed to the individual telephone subscriber or householder. There is a range of problems with such a system.

bulletI would recommend that 1900 number access should have to be applied for by the adult legal lessee of the phone. That access should not be automatically available. Further that academic and low cost competition and polling lines should be given a different number series to those which are considered pornographic. Indeed I would recommend that there be classifications with appropriate number blocks allocated depending on the nature of the service provided.
bulletFurther I would recommend that legislative restrictions be placed on the collection and use of data gathered through the access to such services

 

 

Mervyn K. Vogt

 
 
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Disclaimer: This publication and its associated sites is intended to inform the public and whistleblowers. Nothing contained in this website is to be taken to be a substitute for legal or professional advice. The author expressly disclaims liability to any person or entity for the consequences of anything done or omitted to be done in reliance in whole or in part of the contents of these publications.  The material contained herein is the result of observations and experience.