Raiche, Holly --- "A telecomms privacy committee at last" [1994] PrivLawPRpr 78; (1994) 1(6) Privacy Law & Policy Reporter 101

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A telecomms privacy committee at last

Holly Raiche

Michael Lee, Minister for Communications and the Arts, announced he will be asking telecommunications regulator AUSTEL to establish ''an advisory committee on privacy issues'.[1] It's been almost a two-year wait since AUSTEL recommended the establishment of such a committee.[2]

While the news of a Privacy Committee is a welcome addition to privacy protection mechanisms, the issue will be the extent to which the Privacy Committee can effectively plug privacy gaps in telecommunications.[3]

The ministerial statement said the Committee would be established and chaired by AUSTEL and would include a consumer representative as well as representatives nominated by the Telecommunications Industry Ombudsman and the Privacy Commissioner. Other members of the Committee have previously been left to AUSTEL to determine. AUSTEL's proposed Privacy Committee would have included, apart from consumer representation, representatives of network operators, telecommunications-based industries (such as telemarketers), manufacturers/suppliers of customer equipment and relevant government bodies.[4] It must be hoped that AUSTEL follows its earlier suggestion on additional committee membership to ensure all the players in telecommunications privacy are at the table.

The issues the Committee will be asked to address ''as a matter of priority' are the protection of customer personal information, caller identification and telemarketing.

The issue of customer information is already dealt with under current legislation the Telecommunications Act now prohibits carriers (Telecom, Optus and Vodafone) employees, service providers and their employees from disclosing any communications made in the course of telecommunications carriage, or any personal information obtained through the person's status as carrier or service provider employee.[5]

The Minister said that, in spite of that legislation, the ICAC report on authorised release of government information gave instances where Telecom employees may have unlawfully released customer information.[6] Clearly, he expects the Committee to address the security of customers' personal information from unauthorised release. While they are at it, the Committee might also look at carrier release of customers' personal information, which is not now protected under s88 of the Act.

Caller identification (or more precisely, Calling Number Display - CND) trials have been completed in Wauchope, NSW. The results of these trials and circumstances in which CND services might be offered to the public are another pressing issue the Committee must face.

The third issue identified by the Minister is telemarketing. While the public would agree with the Minister's assessment of the importance of the issue, its referral to the Committee highlights some of the longer-term problems in relying on an AUSTEL Privacy Committee to handle telecommunications issues.

One of the more offensive aspects of telemarketing is the use of automatic dialling machines. While AUSTEL can issue permits for customer equipment attached to the telecommunications network, ''privacy issues cannot be considered in assessing whether a permit should be issued'.[7] If AUSTEL has no jurisdiction to deal with the privacy implications of telecommunications equipment, how could a privacy committee established by AUSTEL handle those equipment issues.

The Committee's establishment raises other issues. AUSTEL's original recommendation for a Privacy Committee was that it be ''with but not of AUSTEL' and that ''AUSTEL service the Committee'.[8] The reason for AUSTEL's reluctance to establish its proposed Privacy Committee within AUSTEL was that many of the privacy issues it might deal with, such as the conduct of telemarketers or approval of technical equipment on privacy grounds, are simply beyond AUSTEL's jurisdiction. They are still valid arguments.

Yet there were valid counter arguments. Specifically, AUSTEL's Annual Report cited ministerial concern that the establishment of an independent, industry- sponsored committee ''would require clarification of important issues of accountability, status and membership' which would need to be resolved ''before any decision could be made on additional funding'.[9]

There are other issues will the Committee be an advisory committee established by AUSTEL as set out in the legislation,[10] or will it simply be a Committee AUSTEL chairs; will AUSTEL's power of directions to enforce its public interest and consumer protection functions be available to enforce Committee decisions; will the Committee's jurisdiction be wide enough to deal with privacy issues raised by non telecommunications industries.

In the longer term, AUSTEL's report foreshadowed that privacy protection might be better achieved by extending the jurisdiction of the Privacy Commissioner to cover telecommunications issues.[11] The government's recent announcement about establishing an individual's right to privacy might be an alternative, if that right could include freedom from intrusive or invasive behaviour.

In announcing the government's major review of telecommunications policy, the Minister said privacy was one of the issues the review would need to consider.[12] The Minister's announcement of a privacy committee is a welcome step in privacy protection. However, the government telecommunications review will provide an opportunity to ask whether, in the long term, privacy issues in telecommunications are better handled as part of a broader general privacy regime

Holly Raiche, Communications Law Centre.

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[1] Minister for Communications and the Arts, Michael Lee, Opening Address at CTN Conference: ''Converging on Telecommunications: Consumers and the 1997 Review', Sydney 16 August 1994.

[2] AUSTEL Telecommunications Privacy, December, 1992, p 45.

[3] See Holly Raiche (1994) 1 PLPR 24.

[4] AUSTEL, Telecommunications Privacy, December, 1992, p 45.

[5] s88(1) Telecommunications Act 1991 (Cth).

[6] Minister for Communications and the Arts, p 5, referring to ICAC, Report on Unauthorised Release of Government Information, August 1992.

[7] AUSTEL, Telecommunications Privacy, p 130 - citing advice from the Attorney- General's office on the scope of AUSTEL's powers under the current legislation.

[8] AUSTEL, Telecommunications Privacy, p 46.

[9] AUSTEL, Annual Report 1992-1993, p 72-73.

[10] AUSTEL can establish advisory committees under s53 of the Telecommunications Act 1991.

[11] AUSTEL, Telecommunications Privacy, p 44.

[12] Minister for Communications and the Arts, The Hon. Michael Lee, ''Telecommunications Policy Review Set to Begin', 31 May 1994, p 2.