Big Brother is watching: Wearable technology
and the law
Jeremy Fultheim and Sam Jackson K&L GATES
George Orwell once wrote, “Big Brother is watching
you”. Thankfully, we do not live in the dystopian world
depicted in Orwell’s Nineteen Eighty-Four. However,
there is an ever-growing list of new and innovative
technology that has the ability to monitor individuals
and record their personal information.
One emerging class of technology is “wearable technology”, meaning any sort of monitoring device that an
individual can wear on their body or clothes. Australian
Privacy Commissioner, Timothy Pilgrim, has recently
weighed-in on wearable technology and has encouraged
employers to address the use of such technology in their
workplace policies, stating “[i]f it does collect personal
information, the policy could also outline how that
information is used, disclosed and stored”.1
This leads us to ask, is the law robust enough, and are
employers sufficiently prepared for, an influx of this sort
of technology in the workplace? There is no single piece
of legislation that stipulates what can and cannot be
recorded. There are many variables at play, particularly
what is being recorded, how it is being recorded and
where it is being recorded.
From an employer’s perspective, wearable technology presents a number of potential risks, including in
relation to confidential information, privacy, surveillance, harassment and bullying. For example, it will be
easier than ever before for employees to capture and
distribute client lists, confidential trade secrets and the
like. In addition, wearable technology also poses a new
means for employees and contractors to engage in
conduct that may amount to harassment or bullying.
Employers will therefore need to ensure they take
reasonable steps to prevent these devices being used in
a way that contravenes any legislation, otherwise they
will face liability. To complicate things, surveillance
legislation exists at both federal and state or territory
levels, and in many cases, stipulates differing requirements and obligations.
Telephone Surveillance
If it is not already in beta, wearable technology is
expected to soon have the ability to sync with a person’s
smartphone, and could also have the ability to record
telephone conversations or prompt a smartphone to
record a conversation.
inhouse counsel September 2014
At the federal level, s 7(1) of the Telecommunication
(Interception and Access) Act 1979 (Cth) (TIA Act)
prohibits, subject to certain exceptions, a person from:
a) intercepting (by listening to, or recording, by any
means);
b) authorising, suffering or permitting another person
to intercept; or
c) doing any act or thing that will enable him or her
or another person to intercept,
a “communication passing over a telecommunications
system” without the consent of all parties to the conversation.
Therefore, the key question which determines whether
a telephone recording falls within the scope of the TIA
Act is whether the communication is in passage over a
telecommunications system. The courts have tended to
answer this question by drawing a highly technical
distinction between connected and external equipment.
The use of a wearable recording device that is
connected (for example, by Bluetooth or Near Field
Communication) to a smartphone, or that somehow
intercepts the smartphone’s transmission, would involve
audio-recording such that the TIA Act applies. Conversely, where the wearable recording device is considered to be external to the smartphone and records the
conversation after the sound has emanated from the
speaker, the recording does not appear to fall within the
TIA Act. Instead, this recording would fall within the
applicable state legislation.
The significance of this is potentially huge, as certain
states do not prohibit this type of recording. In Victoria,
for example, it is not unlawful for a conversation to be
recorded, even without the consent of the parties involved.
Sometimes it is necessary for the law to draw a
technical distinction between two seemingly similar
actions. But is this one step too far? Justice McGarvie,
who decided the Victorian Supreme Court case of R
v Curran and Torney,2 certainly thinks so. His Honour
stated that such a technical distinction is inappropriate:
One listens to a conversation in its passage over a telecommunications system by listening to the sounds of the
conversation produced by the passage of electric or electromagnetic energy through the system. The ear hears the
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sounds which the system emits. The position must be the
same when, instead of listening to the sounds emitted by
the system, a person records those sounds.
Nonetheless, current commentary suggests that the
law does draw such a distinction. With the introduction
of this technological advancement, perhaps this is something that the legislature ought to consider.
Optical Surveillance
Are those glasses you are wearing, or is that a piece
of recording equipment? With the introduction of “Google
Glass”, the answer to that question might well be “both”.
Google Glass is an innovative piece of technology that
users wear over their right eye. It combines a display,
internet connectivity and (significantly) a video camera
all-in-one.
When Google Glass and other similar technologies
enter the Australian market, how will they be regulated?
And what will employers need to consider?
Unlike telephone surveillance, camera surveillance
falls squarely within the jurisdiction of the states. New
South Wales, Victoria, Western Australia and the ACT
all have legislation that regulates optical surveillance.
New South Wales and Victoria have workplace-specific
legislation. For instance, in New South Wales, employers cannot commence surveillance of an employee at
work without notifying the employee in writing. It is
important that employers, particularly employers operating across multiple jurisdictions, are across such nuances
so they do not fall foul of the different legislative
obligations.
technology has the potential to surreptitiously record
personal and confidential information, employers need
to be proactively considering the implications of their
employees and contractors using that technology.
A number of recent sexual harassment cases in the
Federal Court have had the combined effect of significantly extending the definition of the “workplace”, and
awarding significantly higher damages than previously
had been considered appropriate. Given these recent
developments, the stakes are even higher for employers
to keep up to date with changes in technology and ensure
their policies adequately protect against employees and
contractors using that technology to carry out potentially
unlawful conduct.
The key message for employers, therefore, is that
they need to review, implement or update workplace
policies to ensure they deal with the new risks posed by
wearable technology. Employers’ policies must consider
the new risks to confidential information posed by
wearable technology, canvas what is and is not appropriate usage of such devices in the workplace to attempt
to guard against breaches of privacy, surveillance and
harassment and bullying legislation, and perhaps go so
far as to govern how employees can “sync” their various
devices with social media in the workplace.
As with all policies regarding appropriate workplace
conduct, employees and contractors will then need to be
provided with appropriate and relevant training on the
new policies. In addition, conduct in the workplace will
need to be closely monitored to ensure any infractions
are appropriately dealt with.
Sam Jackson
Senior Associate, K&L Gates
sam.jackson@klgates.com
www.klgates.com
Implications for Employers — The Time to
Act is Now
It is fair to say that many employers were not
adequately prepared for the plethora of issues that arose
with the advent of social media. For instance, can an
employer use social media to gather information about a
job applicant? Can an employer prohibit employees
from using social media at work? Can an employer
direct its employees about the content they post on
social media and monitor information they post on it
outside of their capacity at work?
Being in the dark about these issues caused employers significant grief. Employers should ensure they are
better prepared this time around. This does not necessarily mean that employers should be concerned about
wearable technology. Like most emerging technology,
wearables are designed to improve connectivity, increase
productivity and promote synergy. However, as some
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Jeremy Fultheim
Lawyer, K&L Gates
jeremy.fultheim@klgates.com
www.klgates.com
Footnotes
1.
2.
Sydney Morning Herald, Work wearables: policies needed,
16 June 2014, accessed 16 September 2014, www.smh.com.au.
R v Curran and Torney [1983] 2 VR 133 at [153]; (1982) 50
ALR 745.
inhouse counsel September 2014