Keeping up with the droneses: How criminal laws deal with new technology

A Darwin resident recently went public about a very modern privacy problem.

Swimming nude in her backyard pool, she peered up at the sky to see a hovering drone peering back down at her. Legal analysts weighed in about how various laws – governing property rights, aviation rules and surveillance – struggle to keep up with new technology. But there’s more to the story than just an arms race between parliaments and perverts.

A decade ago, Victorian police discovered what was then a new issue. Searching the digital camera of a misbehaving student, they found a photo of a woman taken from underneath the stands at the Australian Open. Victoria’s parliament responded by creating a new state crime. From 2007, Victorians faced up to three months in prison if they:

“with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.”

Note this new crime isn’t about tennis stands or women or even cameras. Rather, it’s in wholly general terms. That is what allows it to be future-proofed.

Victoria’s trick was to pinpoint the essence of the privacy problem posed by the tennis tourist. It’s one thing to look at people’s bodies, even from unusual directions. But doing so ‘with the aid of a device’ is another matter entirely. Viewing devices like cameras greatly magnify privacy problems, both literally (a zoom lens) and figuratively (recording images for all time and allowing them to be distributed). In short, Victoria recognised that the real danger lurking under the stands at the Australian Open was technology.

Future-proofing the Law

Realising that technology was the problem back then means that Victoria is a decade ahead when it comes to drones, which are simply a new form of viewing device with their own implications for privacy. Victoria is likewise prepared for whatever new privacy problems posed by future technology wait around the corner. X-ray vision, anyone?

That’s the good news. The bad news is that recognising the problem is only half of the work. The other half is devising good rules that distinguish right uses of technology from wrong ones. Here, Victorian law wasn’t so farsighted. In 2007, Victoria decided that there was nothing wrong with using technology simply to observe people, even without their permission – we do that whenever we take a photo in a crowded place or send a drone flying over a populated area. Instead, what is wrong is using technology to observe parts of people’s bodies that aren’t typically visible.

The State coined the phrase ‘genital or anal region’, an awkward term designed to be broader than just the anus or genitals, but not so broad as to cover parts of the body that are typically revealed by modern swimwear. Victoria recently used the same term to define its new ban on public nudity, but has since conceded that it may have inadvertently banned bikinis and plumber’s crack.

The weakness in Victoria’s 2007 approach is revealed by the Darwin swimmer’s experience. Her concern wasn’t in someone seeing particular parts of her body. Indeed, her ‘genital or anal region’ was underwater and would not have been especially visible to a hovering drone. Rather, her concern was being observed at all on her own property, at least when naked. Of course, if she could be viewed through a fence or from her neighbour’s window, that’s her problem. But drones are another matter entirely.

A different approach is needed to future-proof the criminal law to keep pace with the uptake of new technology. In 2007, Victoria opted to limit its ‘up-skirting crime to situations where it was reasonable to expect that a person’s body ‘could not be observed’. By specifying ‘could’, rather than ‘should’, the Victorian government chose to only protect Victorians’ privacy from unexpected uses of technology, rather than antisocial ones.

The problem (or perhaps the feature) of this approach is that new technology can speedily shift from the unexpected to the commonplace. In a few years’ time, no-one will be able to say that they didn’t expect anyone to observe their skinny-dipping and the use of drones will no longer be a crime in Victoria. So, the 2007 law only really restricts what early adopters can do with new technology, such as future X-ray glasses.

The social acceptability test

More recently, Victoria tried a different approach when it banned ‘revenge porn’ (actually, the non-consensual distribution of intimate images, which covers a lot more than just sexual images). In 2014, it opted for an expressly social, rather than technological, test: the distribution must be contrary to ‘community standards of acceptable conduct.’ This approach equates the crime with social mores.

Social mores can shift, or even be non-existent. Right now, the community would likely object to using drones (or anything else) to film people in their backyards. But, at the same time, people will probably get more and more accustomed to drones. Just last week, Australia’s new Chief Justice suggested that it would be better if political protesters used drones, rather than hand-held cameras, to gain footage of corporate behaviour.

Under the 2014 approach to defining technology trials, the law will only follow, rather than set, Victoria’s rules on what uses of new technology are or aren’t allowed. How will the community eventually resolve the privacy dilemmas of drones? Will they forbid all drones from backyards? Will they expect people to cover up when outdoors or wear the consequences? The answer is anyone’s guess.

To mark Law Week (15 – 21 May 2017), Pursuit is looking at some of the issues facing the profession in the 21st century.

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