Greenleaf, Graham --- "Do they give you the pip?" [1994] PrivLawPRpr 60; (1994) 1(4) Privacy Law & Policy Reporter 76

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Do they give you the pip?

AUSTEL-Recording and Monitoring Telephone Conversations - Tone Requirements Discussion Paper, May 1994

AUSTEL has issued this Discussion Paper in order to solicit comments on whether the tone requirements in AUSTEL's Technical Standard TS002 should be retained, concerning (a) intrusion tones, where a third party is monitoring a call (cl 5.5.3) and (b) pip tones, where any party is recording a telephone conversation (cl 5.9.3). The result will be a decision by AUSTEL whether to change the Standard, in accordance with s247 of the Telecommunications Act1991 (Cth).

(a) lack of understanding by users, resulting in unintentional disregard;

(b) belief that the occurrence of the tones implies consent by the party being recorded or monitored;

(c) some telecommunications manufacturers and contractors will disable tone requirements at the request of customers, while others insist on AUSTEL authorisation;

(d) a widespread perception of the need to record and/or monitor conversations by a variety of business organisations, for example, companies conducting financial transactions over the phone such as credit card payments or telephone betting, dealing rooms of financial institutions, companies training telephone operators etc' (they also mention monitoring of telephone customer service representatives and of consumers paying accounts by telephone); and

(e) confusion over the coverage of AUSTEL's TS002 and the Telecommunications (Interception) Act 1979 (Cth) and various State Listening Devices Acts.

The Discussion Paper gives a very valuable summary of the relevant law. Monitoring or recording of any communications over a telecommunications system is covered by the Telecommunications (Interception) Act 1979 (Cth), except if it is ''participant' recording or monitoring. A ''participant' is essentially a person who is legally on the premises from which the call is placed or at which it is received (that is, not necessarily the receiving or calling party). The scope of TS002 and the State Listening Devices Acts is essentially to deal with such ''participant monitoring' or ''participant recording'. The State Acts control the extent to which audible conversation (as opposed to interception of the conversation during its passage over a telecommunications system) can be monitored or recorded. All require consent before non-parties can do so, but only some require consent where the recording or monitoring is by a party. One problem with TS002 is that it is ostensibly made under s246 of the Telecommunications Act 1991 (Cth), which only allows regulation on technical grounds, and might not allow new regulations concerning tones which are based on public interest in the protection of privacy. The existing regulations are protected by a ''grandfather' clause from the 1989 Act.

The questions AUSTEL seeks answers to are:

1. Do tones provide a basis for inferring informed consent to continued monitoring or recording?
2. Are the tone requirements ignored as much as AUSTEL thinks they are? Is this in itself a reason for abandoning them?
3. Should the resources of AUSTEL's technical branches be used to enforce these standards?
4. Is a code of practice to be developed by the soon-to-be-established privacy committee a viable alternative? Or should we forget about trying to limit recording and monitoring?

Comment

AUSTEL's Discussion Paper, and particularly the tone of despair in its questions about whether there is any longer any point in trying to protect privacy, is further strong support for the urgent need for a comprehensive Telecommunications Privacy Act. The idea that some form of industry co- regulation in the form of AUSTEL's recommended Privacy Committee is going to restrain the current laissez faire attitude of many telecommunications players is very dubious. As Commissioner O'Connor says, ''Reliance on industry-based groups to get the social policy equation right will produce controversy, uncertainty and dissatisfaction' (see (1994) 1 PLPR 61)

Graham Greenleaf