Privacy Commissioner - Te Mana Matapono Matatapu

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Telecommunications Bill

Report by the Privacy Commissioner to the Minister of Justice in relation to the Telecommunications Bill

1. Introduction

1.1 Telecommunications have numerous implications for the privacy of individuals. Of particular significance are the links between communications networks and other services and technologies such as computers. The internet, in just a few years has changed the ways we communicate and the manner in which business and government delivers services, all the while creating personal data trails and host of privacy issues. Convergence with other technologies, such as radiocommunications, video and biometric applications, are also having profound results. The pace of technological change is unlikely to slacken any time soon.

1.2 The information privacy principles in the Privacy Act 1993 apply to the many circumstances in which telecommunications are involved in personal information handling. The Act empowers me, by code of practice, to prescribe standards that are more stringent or less stringent then the principles, to provide how the principles are to be complied with, or to exempt actions from the principles.(1) I intend to issue a code to address telecommunication issues more precisely. I am already well advanced on that proposed code having released a public resource document in relation to privacy and telecommunications last year and pursued industry consultation since that time. (2)

1.3 The information privacy principles are subject to the requirements of other enactments.(3) Furthermore, there are some privacy-protective things that other enactments can do which a code of practice under the Privacy Act cannot. A simple example is to create criminal offences for intrusive behaviour. For these reasons I have examined the Telecommunications Bill. I draw two matters to your attention.

2. Clause 100 - Misuse of telephone station

2.1 Clause 100 re-enacts without change section 8 of the Telecommunications Act 1987 ("the 1987 Act"). This creates an offence when, using a "telephone station", a person:

"uses profane, indecent, or obscene language, or makes a suggestion of a profane, indecent, or obscene nature, with the intention of offending the recipient."

2.2 This clause also makes it an offence to use, cause or permit to be used, any telephone station:

"for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient."

2.3 "Telephone station" is defined in clause 2, as it was in the 1987 Act, as:

"Telephone station means any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice communication."(4)

2.4 By contrast, subclause (2)(b) makes it an offence to use a "telecommunications device" (which is undefined) to knowingly give any fictitious order, instruction, or message.

2.5 The offences carry up to three months imprisonment or a $2,000 fine. Prior to a 1988 amendment the maximum penalty had been one year's imprisonment.

2.6 Offensive telephone calls are a significant problem. Network operators have a key role in investigating complaints, counselling subscribers, denying service to offenders and, where necessary, preparing cases for prosecution.

2.7 Offensive calls can sometimes be characterised as an intrusion into privacy. Recipients of calls at their home perceive their private space has been violated. Sometimes the nuisance calls also involve an element of targeted harassment where the caller knows personal information about the person being called. In other cases, calls are simply made at random.

2.8 Information privacy issues also arise after offensive calls have been made. To investigate complaints, the network operator will use systems data that has been generated for connection and billing purposes in order to investigate the allegations. At some point the network operator may identify the subscriber to the telephone station from which the call is made. Further investigation may, or may not, reveal the identity of the caller (who may of course not be the subscriber). There will be a number of issues as to how that information is used and what is to be disclosed to the complainant - including the vexed question of whether the identity of the subscriber from whose telephone the call has been made should be revealed.

2.9 Accordingly, a number of enquiries and complaints come to my office revolving around the issue of offensive calls. The existence of good industry practice to discourage, investigate and deal with nuisance calls is desirable from a privacy perspective. So too are effective criminal penalties. Accordingly, I support the re-enactment of this provision.

2.10 However, I raise for consideration the matter of offensive data transmissions. When the 1987 Act was passed business widely used facsimile machines although few homes had the capacity to receive fax transmissions. Email was not in contemplation. I suggest that clause 100 be amended to make clear that it applies to the transmission of offensive faxes and emails. There could be several ways of drafting an amendment to achieve this and I make no particular suggestion as to how that should be done. I might add that it is possible that the section already covers non-oral transmissions albeit using networks design for the transmission of voice communication. It might be that computers or fax machines would be "terminal devices" and hence "telephone stations" notwithstanding that in particular cases they may be incapable themselves of voice communications. Whatever the correct interpretation of the existing section in the 1987 Act, and clause 100, the fact is that the provision is not clear on its face as to the application to offensive faxes and emails.

3. Clause 103 Monitoring of telecommunications

3.1 This clause re-enacts section 10 of the 1987 Act without change. The clause provides:

"Any employee of a network operator or any person who is eligible to be declared to be a network operator may, when acting in the course of, and for the purposes of, his or her duty, intercept any telecommunications by means of a listening device or any other device for the purposes of maintaining telecommunications services."

3.2 I accept there being a case, for network operators, properly controlled, to use listening devices for the purposes of maintaining telecommunications services. However, in my opinion the law needs to be strengthened to provide safeguards to ensure that this power, an exemption from normal interception laws, cannot be misused. I have raised this issue recently in relation to similar concerns I hold in respect of an exemption for communications services providers from new laws governing unauthorised access to computer systems.(5)

3.3 In my view the law should provide that:
(a) any information obtained by a network operator or its employees or agents pursuant to clause 103 must only be used for the purposes of maintaining telecommunications services;
(b) such information must not be disclosed to anyone, other than the individuals concerned, except where required by law.
These restrictions should be accompanied by an offence provision.

3.4 There would seem to be a further issue in relation to this section. References are made to "monitoring" of telecommunications. Clearly monitoring would include listening to a communication. It is not clear that the recording of that communication is properly encompassed within the concept of monitoring. If a recording of that of communications is indeed required in order to effectively monitor a network, this should certainly only be done where it is actually necessary for the purpose of the particular maintenance being carried out on the occasion in question, any recording should be safeguarded and destroyed promptly as soon as the maintenance purpose is fulfilled. If it is contemplated that monitoring should allow network operators to make recordings in some cases, then the law should be explicit and it should be accompanied by offence provisions where, for example, recordings are made unnecessarily, retained unnecessarily long, not held securely or inappropriately disclosed.

3.5 It might usefully be noted that there are criminal sanctions in Australian telecommunications law for telecommunications carriers and carriage service providers etc which use or disclose personal information obtained through interception for network maintenance purposes for any unauthorised purpose.(6)

3.6 Accordingly, I suggest that an offence provision be included concerning the use or disclosure of information obtained through network monitoring.

4. Summary of recommendations

I make the following recommendations:

(a) clause 100 should be amended so that the offence of misusing a telephone station clearly applies to the sending of offensive faxes and emails;

(b) clause 103 should be amended to make it an offence to use or disclose information in the maintenance of a telecommunications service for any unauthorised purpose.

 
B H Slane
Privacy Commissioner

26 June 2001

Footnotes

1 Privacy Act 1993, section 46.
2 See Privacy Commissioner, Privacy on the Line: A Resource Document in relation to Privacy in Telecommunications, July 2000.
3 Privacy Act, section 7.
4 Note that "terminal device" is undefined.
5 See Report by the Privacy Commissioner to the Minister of Justice on Supplementary Order Paper No 85 to the Crimes Amendment Bill (No 6), Crimes Against Personal Privacy and Crimes Involving Computers: Intercepting Private Communications and Accessing Computer Systems without Authorisation, para 3.2.9-3.2.13 and recommendations 4-6.
6 See Telecommunications Act 1997 (Cth), part 13.