04 June 2012

Cyberspace June 2012

I like gadgets and travelling, so Hong Kong is a great place to go. Recently at the Stanley Markets I was offered a pen that could record video and sound. Fortunately for me I wasn’t interested, because the Surveillance Devices Act 2007 has something to say about it. You can purchase wireless network cameras for around $200 that record audio and video. You can buy cuddly toys complete with webcam, and of course you can buy baby monitors. You can even buy a video recorder with 8GB of memory that is built into a very convincing stainless steel watch, as well as a shelf clock that has motion detection that videos in high definition. And if you can’t make it to Hong Kong you can buy the pen spy camera with 8GB of memory online for $80.

The Act deals with things that were once very much in the realm of surveillance professionals, but now are cheap, moderate quality and easy to purchase. The devices covered by the Act include optical, data, listening and tracking devices. Unless you have a warrant you just can’t do some things when the subjects intend their actions to be private, and it’s illegal to manufacture, supply or possess such devices with the intent of contravening the Act. Unless you plan to film your child’s soccer game holding a pen, I’m not sure what the spy pen camera is for...

People want to conduct surveillance for many reasons - preventing theft is common, but estranged spouses might look for ammunition for their cases, and some people are just nosey. Of course, illegal data surveillance, which is the monitoring of input or output of computer information or a network without consent is a favourite activity in the online world. Section 10 prohibits it, and like the other offences is indictable.

So, what about the James Bond pen? Using a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party is prohibited by s.7. Fortunately the conversations usually relayed by a baby monitor are more along the lines of “you need to change me”. More usefully, these sorts of devices were used in some of the houses used by the recently arrested Malcolm Naden to alert police as to his presence. Heat-sensitive devices were also used, but they aren’t covered by this Act.

Optical surveillance devices are any device capable of being used to record visually or observe an activity, and using them is prohibited by s.8 if unauthorised entry or interference with a vehicle is required to use or maintain them. So that doesn’t stop you having a video intercom at your front door, but it certainly will stop someone bugging their ex’s house.

Tracking devices are reasonably popular with parents who want to check on their children, but section 9 says that you must not install, use or maintain a tracking device to determine the geographical location of a person or object without express or implied consent by person or person in possession of the object. This rules out the tracking device up Arnold Schwarzenegger’s nose in the film Total Recall, and it also rules out attaching a GPS to someone’s car.

So, while you can visit ThinkGeek (http://www.thinkgeek.com) and buy the Rear View Spy Sunglasses,  Midnight Shot NV-1 Night Vision Camera and the Laser Trip Wire, you probably shouldn’t get the SpyNet Night Vision Video Watch.

On a final note, don’t forget that the Workplace Surveillance Act 2005 has something to say about these sorts of activities too.

First published in the Journal of the Law Society of New South Wales, June 2012. © 2012 Andrew Calvin, Sydney, Australia