IEEE Technology and Society Magazine - Summer 2014 - 44

anal region (s.227A) and distributing prohibited visual recordings
(s.227B). In NSW, Division 15B of
the Crimes Act 1900 ss. 91I-91M
create voyeurism offences provisions, relating to:
a) photographs of a sexual and
voyeuristic nature, usually of a
person's "private parts"
b) taken without consent, and
c) taken in places where "a reasonable person would reasonably expect to be afforded
privacy" (such as toilets, showers, changing rooms, enclosed
backyards, etc.).
Such laws would appear to represent controls over a narrow range
of abuses. On the other hand, the
NSW law gives the appearance
of criminalizing the behavior of
the (unofficial media) photographer in the Falzon-Williams case,
yet no record has been found of
a prosecution.
Despite a great deal of moral
breast-thumping from time to time
about the recording of images of
children, there appears to be no general prohibition on such activities.
Similarly, copyright, trademark,
and defamation laws appear to have
very limited practical impact on the
use of PoVS technologies.
Counter-PoVS Laws
Apart from the prohibitions discussed above, in Australia, individuals who object to being subjected
to surveillance have a few other
potential avenues of protection,
including the torts of trespass
against property, confidence, negligence, nuisance, trespass against
the person, harassment, and stalking [7]. All are, however, very limited in their application.
On the other hand, a person who
fights back against media intrusions
runs the risk of themselves infringing a wide array of provisions of
both civil law and the criminal law.
The following are apparent: common assault, affray, threatening to
44

destroy or damage property, aggravated assault, battery, coercion,
malicious damage, destroying or
damaging property, false imprisonment, and theft, robbery, or stealing
[8]. A person using PoVS technology, even if doing so in an unreasonable manner, has access to far more
protections than the person who
they are monitoring.
Consideration also needs to be
given to the scope for organizations to
prevent members of the public applying PoVS technologies for the purpose
of sousveillance. Law enforcement
agencies in particular may have the
legal capacity to take action to prevent
the use of PoVS equipment, interfere
with PoVS equipment, or confiscate
the equipment and/or data deriving
from its use.
The remainder of this section considers the constraints that arise from
legal authority to seize devices that
have functionality relevant to sousveillance. The focus is on N.S.W.
laws, and primarily on the powers
of law enforcement agencies. However, the scope exists for some other
organizations and individuals to take
similar actions, including national
security agencies, other government
agencies including local councils, but
also corporations and not-for-profit
associations, and perhaps even members of the public.
The scope of the analysis did
not extend to measures taken by
someone subjected to sousveillance to obscure their activities,
nor to powers to exclude people
seeking to exercise sousveillance
from the location of an activity, or
to remove them from it. The scope
was restricted to the following set
of possible constraints:
■

powers to require that particular actions be taken by
the person in relation to PoVS
devices, including:
* not using them to observe
or record particular activities, or in particular places
* the deletion of existing recordings of particular activities

■

powers to take particular
actions in relation to PoVS
devices, including:
* their destruction
* the infliction of damage to
them
* the disablement of particular functionality
* their seizure, i.e., the removal of them from the
person's possession
* their confiscation, i.e., retention of them indefinitely,
or for a considerable period
of time
* the deletion of existing recordings of particular activities.

A scatter of laws exists that do
or may create constraints of these
kinds in Australia. Some are commonwealth laws, and others are State
and Territory laws. Some derive from
the common law, and others from
statute. There is little coherence or
consistency among them.
An array of such powers were
granted to NSW Police in relation
to a meeting of a regional body
called the Asia Pacific Economic
Cooperation (APEC) in 2007.
These were contained in s.13 of
the APEC Meeting (Police Powers)
Act 2007 (NSW). It was speculated
that the powers might be retained
or extended (e.g., [9]), but the provisions were in fact restricted to a
location and a time-period, and the
Act was subsequently repealed.
Since 2002 the Law Enforcement
(Powers & responsibilities) Act has
enabled NSW Police to self-authorize special powers in public places
in the event of what it considers
to be "public disorder." The powers include stop and search without warrant (s.21). Another power
is to seize and detain, originally, a
communication device, but since
2007 any "thing, if [its] seizure and
detention ... will assist in preventing or controlling a public disorder"
(s.87M). Nominally, the onus is on
the NSW Police to justify the selfdeclaration of the special powers,

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