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Working Paper of 19 February 2012
For presentation at the International Workshop on Point of View Technologies in Law Enforcement, Sydney University, 22 February 2012
Roger Clarke **
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This document is at http://www.rogerclarke.com/DV/PoVSR.html
The transcript is at http://www.rogerclarke.com/DV/PoVS-Transcript-120222.doc
The slide-set is at http://www.rogerclarke.com/DV/PoVSR.ppt
Point-of-view surveillance (PoVS) technologies have arrived, and been deployed, and are likely to make further inroads in a variety of circumstances. They offer considerable prospects for operational use by organisations and in education and research. The focus in this event, and in this paper, is primarily on use by law enforcement agencies, and its consequences.
PoVS are primarily video surveillance tools, and most give rise to data trails and thereby facilitate location and tracking and/or data surveillance. By combining these trails, and supplementing them with results of communications interception, law enforcement agencies are becoming capable of integrated views of places and of people associated with them.
Given the substantial powers that law enforcement agencies have, they are in a strong position to use these new sources of intelligence to protect the powerful and the unpopular, and for crowd control. However, the new tools represent a shift beyond individual surveillance technologies to a coordinated and integrated monitoring complex, to which the term 'überveillance' has been applied. Beyond harming psychological and social needs for privacy, these developments directly threaten political freedoms.
Real-time tracking may enhance the capabilities of law enforcement agencies to the point that demonstrations are still-born and hence 'civil resistance is futile'. Retrospective tracking can become a suspicion-generator, and a means of mapping social networks in a way that 'consorting squads' and undercover operatives could never achieve. These technologies lay the foundation for a semi-automated form of chilling effect on political action, political speech and political thought.
PoVS technologies are also available to members of the public - and indeed uses by members of the public lie at the very foundations of the technology. The practice of sousveillance is subject to constraints that do not affect law enforcement surveillance practices, however; so the playing field remains uneven.
This paper conducts a review of contemporary regulatory controls on the use of these technologies. Law enforcement agencies have considerable scope to apply them, whereas the rights of individuals are less clear. A basis for a more balanced regulatory framework is suggested. The threats are severe, and there is an urgent need for democracies to impose controls on their increasingly intrusive and powerful law enforcement agencies.
Trigger for the paper
This section provides an overview of 'point of view surveillance' (PoVS) technologies, as a basis for considering their applications, impacts and implications. The section commences with a very brief overview of surveillance technologies as a whole.
A brief review of the development of surveillance practices is provided in (Clarke 2001), and a set of vignettes is in Clarke (2007b). During a 25-year period studying many aspects of surveillance, the author has developed a Framework for the Analysis of Surveillance (Clarke 2009). It has three elements. The first is definitions of key terms. The second distinguishes forms of surveillance and the technologies that underlie each form. An overview is in Exhibit 1. The third element is a seven-dimension categorisation of the nature of a surveillance activity. An overview is in Exhibit 2.
For the present purposes, another useful term to describe the most extreme form of surveillance is 'pervasive surveillance', not least because it gives rise to a slogan that is appropriately descriptive, at least in Strine: 'pervsurv'.
The term 'point of view surveillance' (PoVS) is of recent origin. Hayes (2012) notes that 'PoS' "originated from an expression by cinematographers to denote the capture of perspective from the 'third-eye' or 'first-person' of the wearer. Its most controversial use in contemporary history is the production of pornography, closely followed by its place in armed services and community policing history".
The extended term PoVS is used to describe several capabilities that have seen rapidly increasing intensity of deployment in the last few years. In terms of the classifications outlined in the previous section, PoVS is inherently Aided Physical Surveillance, and specifically Visual, although quite probably Audio as well, and in some circumstances perhaps Audio-only. For particular applications, however, it also incorporates Location and Tracking surveillance technologies.
The defining feature of PoVS is that the camera is human-borne, and points away from the human, generally following the orientation of the person's head, i.e. to capture the scene in the person's line-of-sight, or point-of-view. This differentiates it from:
The term 'wearable computing' has been in use since at least 1980, when Steve Mann applied it in particular to wearable cameras and head-mounted displays (Mann 1996, 1997). More generally, see Rhodes (1997).
A strict definition would limit PoVS to a camera closely associated with a person's head, such that it changes its direction when the person turns their head, and hence is always capturing the scene from that person's point-of-view. However, the term is used with some looseness, to also encompass at least the following:
The usage of PoVS may be overt, or covert, or not intentionally covert but non-obvious. With the miniaturisation of cameras, some worn-cameras are inherently non-obvious.
The basic and extended definitions provided in the previous section go no further than the ability to capture a still-image or a moving-image. PoVS devices may be designed with a range of capabilities, including:
The use of PoVS technology to replace a person's direct vision with a video-feed appears, by itself, to offer the person little or no advantage. However, it opens up a range of possibilities. In particular:
Some examples of augmented displays include:
Up to this stage in the development of the notion of PoVS, it has been described as a single feed from a single point-of-view, fed locally to the person, recorded locally, transmitted and/or recorded remotely. The transmission of multiple feeds to the same place, or in such a manner that the feeds, or the recordings, can be acquired by other parties, creates the scope for multiple points-of-view to be exploited.
The range of possibilities can be readily appreciated using the (all-too-common) scenario of a major demonstration, with confrontations between law enforcement staff and demonstrators, and recriminations on both sides.
The law enforcement command and control centre might display multiple points-of-view, transmitted from policemen's kit, in parallel. This may provide a better sense of the overall situation, and enable more effective deployment of resources. In addition, the running of synchronised recordings, with synchronised slow, stop-start and rewind functionality, may enable more effective retrospective investigation of what occurred in a particular place at a particular time.
Given the recent, dramatic changes in the economics of PoVS technologies, video transmission and command-and-control centres, the demonstration-organiser might do much the same as the law enforcement agency, using transmissions from demonstrators' mobile-phones.
Applying the principles of 'crowd-sourcing', volunteers might provide feeds, intended for any and all of law enforcement agencies, the demonstration-organiser, a human rights observer organisation and/or to a publicly-available site, as suggested by the 'Transparent Society' hypothesis (Brin 1998).
To the extent that private feeds or recordings exist, the law enforcement agency, the demonstration-organiser, a human rights organisation and/or individuals concerned about the matter, might seek access to them using warrants and/or demand-powers on one side, and, on the other, requests, FOI requests and hacking.
A number of surveillance technologies share a variety of features with PoVS, and discussions frequently use the PoVS term even more loosely to include some or all of them. Examples include:
This section provides a brief survey of some of the applications to which PoVS can be put, and some of its direct impacts and broader implications. This lays the foundation for an assessment of the regulation of PoVS.
An active community exists that is applying PoVS technologies in education settings. A review is provided in Hayes (2010), and in Hayes (2012) at this conference: "The use of point-of-view (POV) technologies across the entire primary, secondary, vocational and tertiary Australian education sector over the last decade has developed from DIY prototypes to a recognisable and integrated workforce practice" (p.9).
PoVS also has application in the social sciences. For example, (Lahlou 2011) describes the application of "first-person audio-visual recording with a miniature video-camera worn at eye-level (`subcam')" to develop "a new family of methods for social science research (Subjective Evidence-Based Ethnography: SEBE)".
Conference Chair Katina Michael traces the origins of PoVS back to the 'black-box' recorders for flight data and dialogue in aircaft cockpits, developed in the Aeronautical Research Laboratories, Melbourne, in 1958, although developed and marketed in the UK. The idea has been applied to many forms of transportation.
PoVS notions have found application in a variety of other operational settings. The plentiful availability of R&D funding has ensured that a great deal of experimentation and some of the actual advances have been in military applications. Another context has been fire-fighting.
operational use in real-time, for command and control, and interdiction
additional information available to LEAs, usable for:
The practice of 'glogging' emerged before organisational uses, as art-form and self-expression. It involves the use of PoVS as a personal, visual diary.
But PoVS was also applied very early as a countermeasure against excesses by law enforcement agencies, and was labelled 'sousveillance'. A short version of the distinction is as follows (Mann 2005a):
A form that sousveillance commonly takes is the augmentation of protestors and protest-observers with wearable cameras and video transmission capabilities (Mann 1997, Mann & Niedzviecki 2001, Mann et al. 2003, Mann 2009).
evidence in support of complaints
enhanced functionality for individual employees and contractors. Cyborgisation refers to the use of technology not just to replace missing or lost human functionality (prosthetics), but to enhance human functionality (orthotics). PoVS technologies clearly fit to the definition of a cyborg. The implications were investigated in Clarke (2005, (2011).
the above general benefits
command and control
scope for sub poena or other means of acquisition of LEA recordings by the public
the re-emergence of the crime of 'consorting'
retrospective use for suspicion-generation, mapping of social networks / 'consorting', and chilling-effect
The very Australian crime of 'consorting with convicted persons' (under s.546A of the Crimes Act (NSW)) may be on the rebound, after a period of limited use. At the end of 2011, the crime was defined as being "habitually consorts with persons who have been convicted of indictable offences, if he or she knows that the persons have been convicted of indictable offences". In February 2012, the Premier announced by Media Release that "the offence of consorting will be modernised to make it clear that consorting can occur in person or by any other means, including by email and other electronic forms [and] to extend ... the penalties". Promptly, the Crimes Amendment (Consorting and Organised Crime) Bill 2012 was tabled to give effect to the announcement.
potential for real-time criminalization based on identity, location and video footage becomes plausible
the criminalisation of inferred intention
This section provides a brief survey of Australian law that does or may relate to Point-of-View surveillance. It commences with XXXXXXXX
This section is written by a non-lawyer, based on a range of readily accessible and apparently credible secondary sources. It is accordingly riddled with legal imprecisions and infelicities, and is doubtless sprinkled with errors. Its purpose is to assist in policy discussions not to be a source of advice.
Under the common law regarding real property, including leasehold, the lawful occupiers of land (i.e. owners or lessees) have a general right to prevent others from being on, or doing acts on, their land, even if an area is freely accessible to the public. That right exists for the nine Crowns, as it does for any other owner. So government property requires no special legislation to create such a right.
However, based on that law alone, the right may need to be exercised to declare that filming on the property is not permitted, and to be effective it may need to be communicated. On the other hand, in various jurisdictions, statutes exist that create offences relating to the use of visual surveillance devices on private property. They are considered in the following paragraphs.
The rights attaching to real estate do not extend to preventing photos from being taken from outside the property. Nor do they automatically prevent the use of recordings obtained without permission or in violation of a denial of consent or instruction not to do so.
Government agencies and corporations take different approaches to photography, even when it is taken from outside the property. Security guards on occasions give vague 'security' reasons, but it is commonly unclear what security aspects of what entity is being referred to, and unclear whether any actual authority exists. There are some specific statutes, however, such as that relating to the Sydney Harbour Foreshores in the vicinity of the Opera House. In the case of military establishments, the Defence Act (Cth) is relevant, incl. s.82. In the case of Commonwealth property more generally, the Crimes Act a.89 applies.
The Surveillance Devices Act (Cth) includes provisions for over-riding the rights of real property owners and permitting agencies to use on their land an 'surveillance device' (a device capable of being used to record visually or observe an activity). Under ss.1-27, any of a number law enforcement agencies can apply for a warrant from a judge or Administrative Appeals Tribunal member of their choice, from a select panel (as distinct from the agency having to take its chance as to who the duty judge might be). However, under ss.28-36, the agency may in emergencies issue its own non-judicial warrants. This is subject to weak ex post facto controls.
The term 'surveillance device' includes a data surveillance device, a listening device, an optical surveillance device, a tracking device, and any combination of them.
Under ss.37-40, surveillance can be undertaken without a warrant under various circumstances, such as to listen to or record a conversation to which a law enforcement officer is a party. Under ss.44-48, the surveillance activity can be not only surreptitious, but the fact that it was used can be subsequently suppressed.
The Act appears to be silent about uses by people other than law enforcement officers, and hence does not appear to affect a citizen's use of PoVS technology.
In the other eight jurisdictions, there have been two waves of legislation in relation to surveillance devices, and the situation differs enormously between jurisdictions.
Four States have Surveillance Devices legislation. Victoria, Western Australia and the Northern Territory passed it in the 1998-2000 timeframe, and NSW in 2007. Because of the differences and the complexities, general statements need to be expressed and interpreted cautiously; but, broadly, visual and/or aural surveillance of a private activity is likely to be illegal. A Private Activity is any activity inside a building performed in circumstances where it is reasonable to assume the parties to it did not want it to be seen by others, and reasonably expected that it would not be seen by others. In NSW at least, it includes activity inside a vehicle. However, the prohibition does not apply:
Hence it would seem likely, for example, that it is illegal for a third party to visually record a sex act in a toilet cubicle (the much-publicised Falzon-Williams incident in 2007), or for a third party to visually transmit a sex act between other parties (one interpretation of the ADFA incident in 2010). However it is not illegal under such laws for a party to the act to transmit or record it (the other interpretation of the ADFA incident). Further, it would be less likely to be illegal if the act was conducted in private, but brazenly (e.g. with the door open).
Queensland has taken a similar but highly restrictive approach, with the Criminal Code s.227A-227C relating to 'observations or [visual] recordings in breach of privacy', and guidance in the Queensland Courts Bench Handbook. Visual surveillance without consent is only precluded if the person would reasonably expect their actions to be private. The terms 'private act' and 'private place' are defined to include a very few, specific instances.
South Australia, Tasmania and the ACT have yet to regulate visual surveillance, but have remnant Listening Devices legislation from 1972, 1991 and 1992 respectively. There is no general prohibition against taking photographs or videos of people without their consent, not even in private. There may be, however, laws applying in particular contexts. There is, however, a general prohibition on listening to or recording other people, again subject to various provisos.
NSW and the ACT have Workplace Surveillance laws. However, they merely require that the surveillance be declared; or alternatively that there be a good reason for it, and a magistrate's approval for covert surveillance to be undertaken. Some states and territories may preclude surveillance in toilets, bathrooms, and change-rooms, at least in workplace contexts.
The Surveillance Devices Act (Cth) s.37 permits multiple law enforcement agencies to use optical surveillance devices, in public places, without a warrant, provided that "there is no entry to premises without permission and no interference with any vehicle or thing".
Across the States and Territories, visual surveillance in public places appears not to be subject to general constraints except under of a small number of circumstances mentioned in the following sentences.
In Victoria, WA and NT, the Surveillances Devices Act prohibits the use of visual and aural surveillance devices, but only if the person(s) whose behaviour is observed or recorded had a strong case for expecting that the behaviour would not be observed, transmitted or recorded.
In NSW, visual and aural surveillance in a public place is only precluded if the person would reasonably expect their actions to be private, and if they are engaging in a private act. The term 'private act' is defined to include a very few, specific instances.
In South Australia, Tasmania and the ACT, Listening Devices legislation contains no provisions in relation to video surveillance. There is, however, a general prohibition on listening to or recording other people, again subject to various provisos.
Censorship laws at Commonwealth, State and Territory levels place some limitations on acts that are permitted to be the subject of PoVS. In addition, various laws have been rammed through Parliaments during periods of moral panic relating to 'peeping-tom', 'upskirting' and 'downblousing' activities. Many have had to be withdrawn or amended when cases reached the courts and anomalies and unintended conequences emerged.
A lead was provided in this area by the Queensland Criminal Code, which criminalises observation or visual recording made for the purpose of observing or visually recording the other person's genital or 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:
Such laws would appear to represent controls over a narrow range of abuses. On the other hand, the NSW law gives the appearance of criminalising the behaviour 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.
The empowerment of law enforcement agencies to apply PoVS for surveillance purposes, and constraints on their use of it, are described in the previous sub-sections. They also addressed the rather less clear rights of members of the public to apply PoVS for sousveillance.
In addition, law enforcement agencies may have the legal capacity to take action to prevent the use of PoVS equipment, interfere with PoVS equipment, or confiscate it and/or data deriving from its use. This document considers the constraints that arise from legal authority to seize devices that have functionality relevant to surveillance.
The focus is primarily on the powers of law enforcement agencies, but consideration is also needed for the scope for other organisations and individuals to take similar actions, including national security agencies, other government agencies including local councils, corporations and not-for-profit associations, and members of the public.
The set of possible constraints considered is as follows:
The scope of this document does not extend to measures taken to obscure the activities that the person is endeavouring to observe or record, nor with powers to exclude people from the location of an activity, or to remove them from it. The focus is on the use of surveillance tools.
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 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. Clennell 2008), but the provisions were restricted to a location and a time-period, and the Act was in fact subsequently repealed.
The Law Enforcement (Powers & Responsibilities) Act has since 2002 enabled the NSW Police to self-authorise special powers in public places in the event of what it judges to be "public disorder". The powers include stop and search with warrant and without reasonable grounds for suspicion, and seizing and detaining, 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 self-declaration of the special powers, but s.87D is very weak in this regard. Further, the onus is nominally on the individual policeman to justify their actions, but there is an apparent lack of any real controls.
Various powers are also asserted by law enforcement agencies to be available to them under the Anti-Terrorism Act. In one reported case in Kings Cross in Sydney, well-known identity Nick Holmes a Court had his camera-enabled Blackberry confiscated without apparent justification, and reports on the case suggested that previous instances had come to light (TW 2008, CM 2008).
One possible authority is the offence of resisting or hindering a police officer in the execution of their duty, under s.546C of the NSW Crimes Act 1900. A further possibility is the Anti-Terrorism Act (No. 2) 2005 - Schedule 5. The anti-terrorism laws are veritable a rat's nest of possibilities.
Law Reform Commissions (LRCs) perform studies and publish reports, which are in most cases entirely ignored by parliaments. In some cases, specific Recommendations may be lifted out of context and implemented, and in others, weakened versions may be enacted, sometimes many years after the Recommendations were made. The following LRC Reports are known to have been published:
The previous section confirms the argument that "[surveillance and] sousveillance ... will be driven by rapid development of new technology, leaving legal frameworks lagging behind technology" (Mann 2005a, 2005b).
Mann went further, arguing that:
7. (protection). Unlike surveillance, sousveillance will require a strong legal framework for its protection, and not just its limitation. Along these lines, certain legal protections will be required to ensure access to those who depend on sousveillance.
8. (disabled). These legal protections will first emerge in the form of assistance to the disabled...
9. (differently abled). The space of those considered to be disabled will gradually expand, over time, as the technological threshold falls and the sousveillance industry grows.
10. (other benefits). These legal protections will expand, to encompass other legitimate and reasonable uses of sousveillance, such as artistic and technosocial inquiry, photojournalism, and collection of evidence.
This section develops a proposal for a normative scheme whereby the imbalance between law enforcement and public rights in relation to PoVS can be made good. The first sub-section summarises the problems with the current situation. The second enunciates a general set of principles for the regulation of surveillance. The third sub-section then applies the general principles to the specific context of Point-of-View Surveillance.
The inadequacy of 'intrinsic controls' (Clarke & Stevens 1997, Clarke 2007a)
The looseness of protections
The designed-in loopholes
The express removal of balances and controls post-2001
The incidental loopholes arising from technological change
The willingness of organisations to provide sensitive data to law enforcement agencies
The coalitions of technology providers and user organisations - a modern form of the military-industrial complex (Clarke 2007a), s.(2) re 'Controls over Excesses'
Those specific proposals are made within the context of a broad set of principles for the regulation of surveillance of all kinds, listed in Exhibit X, and documented in Clarke (2007).
[EXPAND, selectively using the visual surveillance set (APF 2009) ]
In Clarke (2012), a report was provided of a comprehensive study of privacy and the media in Australia. It included an analysis of the public's needs, and a proposed Code Template, against which each of the many codes that informs behaviour in the print and broadcast meda could be assessed. This section extracts the aspects of those proposals that bear directly on the regulation of media surveillance behaviour.
It is particularly important that the Justification and Proportionality Principles outlined above be operationalised in ways that draw the line for both reporters and photographers on the one hand, and members of the public on the other. The following, more specific Principle, was proposed in Clarke (2012):
The Principle then needs to be articulated into a form that supports the media in its work, and provides a firm basis for the handling of complaints about media behaviour.
The following data-gathering activities breach the Principle, unless they are justified by a public interest of sufficient significance to warrant the activity, taking into account relevant factors, and in particular the sensitivity of the context and the degree of discomfort, anger or distress that the performance of the activity may give rise to:
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Rhodes B. (1997) 'A brief history of wearable computing' MIT Wearable Computing Project, apparently of 1997, at http://bradleyrhodes.com/Papers/brief-history-of-wearable-computing.html
TW (2008) 'Who Watches The Watchers: Australian Threatened With Arrest Under Australian Anti-Terrorism Act For Being a Citizen Journalist' TechWired, December 2008, at http://techwiredau.com/2008/12/who-watches-the-watchers-australian-threatened-with-arrest-under-australian-anti-terrorism-act-for-being-a-citizen-journalist/
VLRC (2010) 'Surveillance in Public Places' Victorian Law Reform Commission, August 2010, at http://www.lawreform.vic.gov.au/projects/surveillance-public-places/surveillance-public-places-final-report
Wigan M. & Clarke R. (2006) 'Social Impacts of Transport Surveillance' Proc. RNSA Workshop on Social Implications of Information Security Measures upon Citizens and Business, Uni. of Wollongong, 29 May 2006, in Michael K. & Michael M.G. (Eds.) 'The Social Implications of Information Security Measures on Citizens and Business' Research Network Secure Australia, 2006, Chapter 2, pp. 27-44. Revised version published as Wigan M. & Clarke R. 'Social Impacts of Transport Surveillance' Prometheus 24, 4 (December 2006) 389-403, at http://www.rogerclarke.com/DV/SITS-0604.html
Wigan M. & Clarke R. (2009) 'Transport and Surveillance Aspects of Location-Based Services' Transportation Research Record 2105 (September 2009) 92-99
The use of overt surveillance should be in accordance with the proposed Surveillance Act. For the purposes of the proposed Act the following are the Overt Surveillance Principles:
In determining whether to grant an authorisation to conduct covert surveillance in the public interest, the issuing authority should have regard to:
* whether the public interest (or interests) involved justifies the displacement of individual privacy in the circumstances.
The Victorian parliament should enact new laws that promote the responsible use of surveillance devices in public places.
[Presumably this was intended to mean 'promote responsibility in their use', not 'promote their use'. The Terms of Reference did not include the scope to recommend that more of it be performed.]
The legislation should include the following guiding principles.
The Surveillance Devices Act should be amended, as follows:
11. The words `an activity carried on outside a building' should be removed from the definition of `private activity' in section 3 of the SDA so that it reads:
private activity means an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else.
14. The definition of `tracking device' in section 3 the SDA should be amended so that it includes all electronic devices capable of being used to determine the geographical location of a person or object.
18. Sections 6 and 7 of the SDA should be amended to prohibit participant monitoring using a listening or optical surveillance device subject to the following additional exceptions:
a. the use of a listening or optical surveillance device by a law enforcement officer to record a private conversation or private activity to which he or she is a party if:
i) the law enforcement officer is acting in the course of his or her duty; and
ii) the law enforcement officer reasonably believes at least one party to the conversation or activity of having committed or being in the course of committing an offence
b. the use of a listening device or optical surveillance device by a party to a private conversation or private activity if:
i) a principal party to the conversation or activity consents to the listening device being so used; and
ii) recording of the conversation or activity is reasonably necessary for the protection of the lawful interests of that principal party.
Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University.
The content and infrastructure for these community service pages are provided by Roger Clarke through his consultancy company, Xamax.
From the site's beginnings in August 1994 until February 2009, the infrastructure was provided by the Australian National University. During that time, the site accumulated close to 30 million hits. It passed 50 million in early 2015.
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