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Version of 24 February 2013
Notes for a brief presentation to and discussion with
the Australian Press Council, Sydney, 25 February 2013
Roger Clarke **
© Xamax Consultancy Pty Ltd, 2013
Available under an AEShareNet licence or a Creative Commons licence.
This document is at http://www.rogerclarke.com/II/APC-130225.html
'Point of View' Surveillance devices and UAVs (aka drones) look set to offer significant opportunities to journalists. Information, and compelling image and video, will become much more readily available. The cost of devices is so low that content will be gathered by many sources, and available through many channels. Because expression of considered text takes time, there will be an increase in the streaming of video to 'newspaper' websites. Because of time-pressures and competition, this will be subjected to far less editorial oversight and moderation than was the case in the past. A great deal of angst will arise, because of large numbers of instances of reporting that is selective, single-perspective or acontextual; of media collection activities that constitute harassment and stalking; and of unjustifiable intrusions into privacy. Current guidance and regulatory arrangements are woefully inadequate to cope with current, let alone emergent challenges.
Developments in photographic technologies, particularly miniaturisation and reductions in manufacturing costs, have enabled the incorporation of image and video capture and transmission functions into human-portable devices, including wearable devices such as spectacles. Other developments, such as image-stabilisation, combined with rapid changes in the technology and economics of unmanned flying apparatus, are resulting in an explosion in video capture and transmission from above the earth's surface.
Point-of-View Surveillance devices, and surveillance drones, are set to have significant impacts in a wide variety of fields, many of them highly beneficial. The practice of journalism will be among those fields. Along with the positive impacts, however, come many potentially serious negative consequences. Are individual media professionals, media organisations, and media regulators suitably prepared to manage these risks?
These notes commence by summarising the nature of point of view surveillance devices, comparing them with other forms of visual surveillance, and then outlining the use of drones for such purposes. Current and readily foreseeable media uses of these technologies are identified. The regulatory frameworks for visual surveillance, and for media activities, are considered, and found to be seriously wanting. Implications and potential responses are canvassed.
This section provides brief overviews of the two categories of technology that are the focus of this note, and of media uses of them.
The term 'point-of-view surveillance' refers to the use of a camera that is human-borne, at or about eye-height, pointing away from the human, and hence following the orientation of the person's head. It enables capture of the scene in the person's line-of-sight, from the person's point-of-view. The definition encompasses the longstanding use of single lens reflex (SLR) cameras with through-the-lens sighting. Miniaturisation has enabled additional means of carriage including eyepieces, spectacle-frames, headbands and helmets (Clarke 2012a).
Some uses of the term relax the 'human line of sight' criterion, and hence extend to such additional forms as:
The basic capability is not new. SLR cameras emerged in the second half of the nineteenth century, and wearable computing generally, and wearcams in particular, were pioneered in the 1980s (Mann 1997). Aspects that are new are the devices' small size, inexpensiveness, widespread availability, and the combination of capture and prompt transmission of quality imagery.
Point of View surveillance exhibits some features in common with previous technologies, including the following:
Beyond imagery capture and transmission, a wide range of extended functions are possible, such as:
There can be little doubt that some of these extended features will find application in the context of media-reporting, because they provide scope for value-add and product differentiation.
Unmanned aerial targets date back to World War I, and the Australian Jindivik was a particularly successful example in the early 1950s. The terms in current use for pilotless flying apparatus are unmanned aerial vehicles (UAV), unmanned aerial systems (UAS), and drones. Over the last couple of decades, there has been a leap in their payload, their controllability and their reliability, and a sharp drop in their cost. They are now entering widespread commercial use, including by media organisations, and are within reach of individuals with diverse motivations, including hobbyists, activists, voyeurs and amateur media (Outing 2012).
Drones have many possible applications, including the delivery of a payload into a target area. Of relevance in the current context is the capability to gather data. This includes meteorological, geophysical and radiation measurements. However, a drone can also be equipped to gather audio, image and video, within and beyond the human-detectible range, and, further, can be designed to transmit it, whether on delay or streamed live. Current, low-cost drones are large enough to carry a payload that is in some cases only sufficient for a small, unstabilised camera, but in others for a conventional DLSR camera and a transmitter. StreetView Tired, BirdView Wired.
An early literary depiction akin to surveillance drones is an element in the very first techno-dystopian novel (Zamyatin 1922), whose 'aeros' trailing 'observation tubes' were means by which the government observed and repressed the population. There are many sci-fi depictions, dating back to at least 1928 (Clarke 2009). The most convincing investigation is probably that in Stephenson (1995).
Point of View Surveillance devices have many applications in journalism. Image and video that is captured by the journalist and later replayed can supplement the journalist's recall and notes. The notions of 'informant' and 'research assistant' expand from a party that observes and describes from memory, to someone who provides image and video, and who can support their description with evidence. Multiple sources and live feeds create the potential for much faster development of a sufficiently deep understanding of a developing situation.
Drones lift the perspective up and away from the limited point-of-view of a human being. Feeds can be gained from dangerous areas, e.g. war-zones, volcanoes, and - using cheap and therefore expendable drones - even in 'heavy weather'. Images can be acquired from locations that would other be physically inaccessible, such as canyons, and areas that are shielded from view from outside property boundaries. It becomes possible to afford views from perspectives that were previously unavailable without using expensive aircraft, and this includes the ability to hold position and monitor, rather than just over-fly and produce snapshot imagery. In addition, pursuits become less expensive, more feasible, and less dangerous - at least for the chaser, if not for the fugitive and bystanders.
Although some aspects of the dream may take time to come true, the revolution has begun. According to (Moses 2013), drones were used to track and film Paris Hilton on the French Riviera as far back as 2010, and in 2011 by News Corp in the US to film flood damage, and by Nine's 60 Minutes over the Christmas Island immigration detention centre.
Not everyone will be happy with media organisations' use of point of view surveillance devices and drones. There is plenty of scope for countermeasures, variously by those who own or otherwise control the space in which the filming is done, by those being filmed, and by authorities such as law enforcement agencies. Possible counter-measures against drones include jamming of control signals and of imagery transmission, interference with geo-location data, hacking of software, ground-based interdiction of the drone itself, predator-drones, and violence aimed at drone-controllers. There is a risk of retaliatory measures causing harm, to property, to individuals involved in the activity, and to third parties. To date, the earliest identified report of active retaliation arose from hunters in South Carolina shooting down an animal activist's drone (T&D 2012).
This section summarises issues that arise from media use of these surveillance technologies, and outlines the current regulatory arrangements affecting the technologies and the media.
At this early stage in the maturation of the technologies and of their adoption by the media, some caution is needed in cataloguing the negative impacts that are likely to arise. On the other hand, the issues are potentially very serious, and an endeavour to anticipate them is a pre-requisite to the mobilisation of effort to address them. The following are some apparent issues:
A review of the regulatory framework for point of view surveillance is in Clarke (2012d). That paper concluded that its use in private places is subject to modest constraints, which vary a great deal depending on the jurisdiction and context; whereas its use in public places is subject to only quite limited regulation. People subjected to visual surveillance have some scope for legal countermeasures, but by and large journalists, and even their cameras, are better protected by the law than the people that they harass. All three major law reform commissions have recommended action, but governments have paid very limited attention to them.
The commercial use of drones appears to be currently subject to safety regulation, whereas individual use may not be (CASA 2002, Moses 2013). The present regulatory framework for drones, in both the USA and Australia, is undergoing review (GAO 2012, Moses 2012). There is a risk that the considerable public concern evident within the US could result in kneejerk reaction in several States (EPIC 2013). A similar but less extreme risk exists in Australia.
Despite the clear and strong pro-industry bias built into the government agencies that regulate airspace safety, such as the US FAA, UK CAA and Australian CASA, a case can be made that they must consider privacy protections as part of their reviews. For example:
The US agency has accepted the argument that privacy requires urgent consideration (FAA 2013). The Australian Privacy Commissioner's mild suggestion to the then Attorney-General that a review be conducted (OAIC 2012) may have fallen on stony ground.
The Australian broadcast media are subject to a nominally co-regulatory scheme administered by the Australian Communications and Media Authority (ACMA). However, information-gathering behaviour is almost entirely out-of-scope. Australia's print media are subject to merely self-regulatory arrangements and/or industry self-regulation through the Australian Press Council (APC). On the other hand, information-gathering behaviour is generally within-scope of press company codes. The evaluation reported on in Clarke (2012b) concludes that none of these arrangements deliver anything resembling effective protection to individuals against unreasonable media practices.
Paparazzi are usefully defined as photographers or reporters who seek sensational but essentially trivial material, with great persistence and in some cases with audacity. Very little adaptation is required to produce a tenable definition of an investigative reporter: a reporter who seeks material relevant to a matter of public interest, with great persistence and in some cases with audacity. From the perspective of the target, the persistence and audacity are threatening. Finding a fair balance is therefore entirely dependent on the application of an effective public interest test.
The ACMA and APC frames of reference are heavily biased against the interests of individuals, not least because the public interest test that is used is excessively wide and hence highly permissive, writ so broadly as to encompass 'what the public can be tempted to be interested in'. The scope for change in the present inadequate state was examined in Clarke (2012c). This included the identification of a set of 15 well-publicised examples of privacy-abusive behaviour and publication. The terms of an appropriate Code were proposed in outline in APF (2009), and expanded considerably in Clarke (2012e).
With point of view surveillance devices and drones at their disposal, the media will be able to subject far more people to observation, for longer periods, with greater intensity, and with greater precision, for much lower costs. There will be a competition among media organisations to exploit the new tools. Given the recent loss of a great deal of advertising revenue to Web-only media, and margins to Google, one driver for this will be cost-reductions. In part, its use will be motivated by the need to keep up with other media organisations that are addressing the same market. A further imperative will arise from inroads made by the informal media. Because of the need for speed and immediacy, there will be a further reduction in the checking processes prior to publication, to the point that much content is likely to be streamed directly onto web-sites and through them to avid watchers.
In military applications of drones, it has been argued that the operator is detached from the consequences of their action, and can be more easily be encouraged to do things that would be unacceptable or clearly wrong if they were in the presence of their targets, or at least within the theatre of war. A similar pattern is inevitable in the pressure-cooker environment of journalism, particularly where editorial and other controls are short-circuited in order to stream directly to clients.
In many contexts, it is widely recognised that particular care is required, such as in filming within schools, at swimming-pools, in hospitals and near women's refuges. Recently, a throwaway trivialisation of the general point of sensitivity of data in and near public spaces was all that was deemed worthy of reporting: "Kate Middleton and many other people besides can rest assured that their bare breasts are fair game, anywhere, any time" (the author, quoted in Moses 2013).
It appears to be inevitable that the sudden availability of a new suite of surveillance tools will exacerbate the existing inadequacies of media regulation. APF (2009) and Clarke (2012e) proposed specific enhancements in order to overcome the current deficiencies, including a Template Code. To that can be added calls for a more specific 'Drone Journalism Code of Ethics', layered above existing Codes (Shroyer 2012).
Media use of new surveillance tools creates a number of challenges to media professionals, to media organisations, and hence to the APC. Among them will be the following:
Despite the difficulties arising from large reductions in advertising revenue, media organisations need to find ways to respond to these challenges, or face the prospect of a more rapid decline than was already in prospect.
A response that is both necessary and relatively straightforward is to engage with advocates for the individuals affected by unreasonable media behaviour, upgrade the Standards to address their deficiencies, and establish Codes not just for the longstanding contexts, but also for the new contexts of point of view and drone-based surveillance, and streamed publication.
Since the mid-1990s, media organisations have been confronted by rapid and revolutionary technological change affecting delivery channels to their customers. During the mid-2010s, technological changes of a comparable scale are occurring in media organisations' supply chains as well. Early warning is available. Early action is essential, in order to establish Standards and Codes in relation to collection and streamed publication practices, and sustain differentiation between cheap-but-low-quality 'amateur media' and the professionalism of media organisations.
APF (2009) 'APF Policy Statement re Privacy and the Media' Australian Privacy Foundation, March 2009, at http://www.privacy.org.au/Papers/Media-0903.html
APF (2010) 'Policy Statement on Visual Surveillance' Australian Privacy Foundation, January 2010, at http://www.privacy.org.au/Papers/CCTV-1001.html
CASA (2002) 'Unmanned aircraft and rocket operations' Civil Aviation Safety Authority, Advisory Circular AC 101-1(0), July 2002, at http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_91039
Clarke R. (2009) 'Surveillance in Speculative Fiction: Have Our Artists Been Sufficiently Imaginative?' Notes for a Keynote presentation in Toronto, Xamax Consultancy Pty Ltd, October 2009, at http://www.rogerclarke.com/DV/SSF-0910.html
Clarke R. (2012a) 'Point-of-View Surveillance' Xamax Consultancy Pty Ltd, March 2012, at http://www.rogerclarke.com/DV/PoVS.html
Clarke R. (2012b) 'Surveillance by the Australian Media, and Its Regulation' Xamax Consultancy Pty Ltd, March 2012, at http://www.rogerclarke.com/DV/MSR.html
Clarke R. (2012c) 'Privacy and the Media - A Platform for Change?' Uni of WA Law Review 36, 1 (June 2012) 158-198, at http://www.rogerclarke.com/DV/PandM.html
Clarke R. (2012d) 'The Regulation of Point of View Surveillance: A Review of Australian Law' Xamax Consultancy Pty Ltd, August 2012, at http://www.rogerclarke.com/DV/POVSRA.html
Clarke R. (2012e) 'Privacy and the Media - A Normative Analysis' Xamax Consultancy Pty Ltd, December 2012, at http://www.rogerclarke.com/DV/PMN.html
EPIC (2013) 'Domestic Unmanned Aerial Vehicles (UAVs) and Drones' Electronic Privacy Information Center, February 2013, at http://epic.org/privacy/drones/
FAA (2013) 'Letter from FAA Chief Counsel to EPIC' Federal Aviation Administration, 14 February 2013, at http://epic.org/privacy/drones/DOT-UAS-Privacy-Issues-Letter.pdf
GAO (2012) 'Unmanned Aircraft Systems: Measuring Progress and Addressing Potential Privacy Concerns Would Facilitate Integration into the National Airspace System' September 2012, at http://www.gao.gov/assets/650/648348.pdf
Mann S. (1997) 'An historical account of the 'WearComp' and 'WearCam' inventions developed for applications in 'Personal Imaging'' Proc. ISWC, 13-14 October 1997, Cambridge, Massachusetts, pp. 66-73, at http://www.wearcam.org/historical/
Moses A. (2012) 'Privacy watchdog urges debate on aerial drones' Fairfax, 12 September 2012, at http://www.smh.com.au/technology/technology-news/privacy-watchdog-urges-debate-on-aerial-drones-20120912-25ri4.html
Moses A. (2013) 'Privacy fears as drones move into mainstream' Fairfax, 18 February 2013, at http://www.theage.com.au/technology/technology-news/privacy-fears-as-drones-move-into-mainstream-20130217-2elcj.html
OAIC (2012) 'Regulation of drone technology' Correspondence to the Attorney-General, Privacy Commissioner, September 2012, at http://www.oaic.gov.au/news/correspondence/2012_09_drones_attorney-general.html
http://www.oaic.gov.au/news/correspondence/2012_09_drones_attorney-general.html<> Outing S. (2012) 'Drones for Journalism' Colorado University at Boulder, December 2012, at http://www.slideshare.net/steveouting1/drones-for-journalism
Shroyer M. (2012) 'The Drone Journalism Code of Ethics' Professional Society of Drone Journalists (PSDJ), October 1012, at http://www.dronejournalism.org/wiki/code-of-ethics
Stephenson N. (1995) 'The Diamond Age' Bantam, 1995
T&D (2012) 'Animal rights group says drone shot down' The Times and Democrat, 14 February 2012, at http://thetandd.com/animal-rights-group-says-drone-shot-down/article_017a720a-56ce-11e1-afc4-001871e3ce6c.html
Zamyatin E. (1922) 'We' Penguin, 1922, 1990
The assistance is acknowledged of colleagues on the Board of the Australian Privacy Foundation, particularly David Vaile and Kimberley Heitman, and at the University of Wollongong, particularly my co-author on related topics, Katina Michael, and Alexander Hayes.
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.
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