A feature on Apple iOS devices which allow users to hear a conversation up to 15 metres away has highlighted Australia's patchwork surveillance device laws, emphasising the need for national reform.
The regulation of surveillance devices in Australia is a patchwork of inconsistent State and Territory laws, which each variously regulate different devices, prohibit different activities and provide for different defences.
Despite calls from the Australian Law Reform Commission to create a uniform national law, this has not occurred to date.
Multi-purpose devices such as an iPhone may constitute a listening device and fall under the remit of surveillance device legislation, if it is capable of being used to record or listen to a conversation.
A previously little-known feature on Apple iOS devices (such as iPhones and iPads) has gone viral, after the discovery that the feature allows conversations to be heard up to 15 metres away, even from different rooms.
The feature is called 'Live Listen', and requires an iPad or iPhone running iOS 12, and a pair of Apple AirPod headphones (or an Apple-certified hearing aid). Once enabled, the feature causes the iPhone or iPad to act like a microphone, capturing audio and sending it to the AirPods or other device. The purpose of the feature is to assist those with hearing impairments, or people who struggle to hear conversations in certain environments (for example, in a noisy restaurant).
The ability to eavesdrop on conversations occurring up to 15 metres away has been met with concern from some commentators, who worry about the potential for people to so readily spy on others.
Such use (or misuse) also brings into sharp focus Australia's inconsistent patchwork of State and Territory based surveillance device legislation.
There are three key questions that need to be answered to determine if using Live Listen will breach applicable surveillance device legislation:
1. Is Live Listen a 'surveillance device'?
Each State and Territory has its own surveillance device legislation which applies variously to different devices, prohibits different activities, and provides for different defences. Despite these inconsistencies, these various laws all have at least one thing in common – they regulate the use of listening devices.
But what exactly is a listening device?
Generally speaking, a listening device is an instrument, apparatus or equipment that is capable of being used to record or listen to a conversation (but with the exception of hearing aids, which are specifically exempted from the ambit of each State and Territory law).
Importantly, unlike some other kinds of surveillance devices regulated by these laws (for example, 'tracking devices' under the Victorian Surveillance Devices Act 1999), the definition of 'listening device' is not subject to a 'primary purpose' (or similar) qualification.
This suggests that devices that are not specifically designed to be used as eavesdropping devices and, indeed, that may have many other functions or uses – such as iPhones, iPads and AirPods – can still be 'listening devices' under these laws.
2. Can I legally use a listening device?
As a general proposition – no, the use of a listening device is prohibited.
This prohibition may be overcome in certain circumstances, though what those circumstances are depends on the user's location.
The most common exception is the consent of one participant (or in some States and Territories, all participants) to the conversation. Crucially, this consent exception is only available if the user is a party to the conversation. That is, the general prohibition on using listening devices applies to the use of a listening device to overhear a conversation to which the user is not a party.
Exceptions to the prohibition also exist for the use of listening devices by law enforcement.
3. What consent is needed to lawfully use a listening device?
While all jurisdictions allow for the use of listening devices with consent, they differ as to the nature of that consent. For example:
- In Victoria, Queensland and the Northern Territory, a person can lawfully use a listening device if he or she is a party to the conversation – i.e., the person does not require the consent of any other participants to the conversation.
- In New South Wales, the ACT, South Australia, Tasmania and Western Australia:
- a person can lawfully use a listening device if he or she is a party to the conversation, and they have the consent of all 'principal parties' to the conversation (i.e., those by or to whom words are spoken); or
- a person can use a listening device if a principal party (or, in the case of South Australia, a party to the conversation) consents to the use of the listening device, and the surveillance is reasonably necessary for the protection of the lawful interests of that party.
- In New South Wales, the ACT and Tasmania, a person can use a listening device if a principal party consents to the use of the listening device, and the surveillance is not carried out for the purpose of publishing or communicating the conversation (or a report of the conversation) to persons who were not party to the conversation.
- There are also public interest exemptions for the use of listening devices in some jurisdictions.
This is clearly an area of law in need of national reform. In September 2014, the Australian Law Reform Commission recommended that existing State and Territory surveillance device laws be replaced by a single (Commonwealth) law. However, this reform is yet to eventuate, leaving us with piecemeal legislation increasingly rendered out of date by rapid advances in technology.