Published: 21 December 2016
Author: Ryan Carlisle Thomas
Could drones be used to spy on workers' private lives?
A recent report in The Guardian (Revealed: Rio Tinto's plan to use drones to monitor workers' private lives), raised the prospect that a firm providing surveillance services to big miner Rio Tinto had plans to start experimenting with drones. Mining companies typically offer mining camp accommodation in remote locations and are uniquely placed to monitor a captive workforce.
While the surveillance services firm denied that there was any use of drones at any Rio Tinto sites, and Rio Tinto has also ruled out using drones to monitor employees, such reports do raise the broader issues of the possible use of drones to monitor workers, not only at work but also, as was mooted in the Guardian report, in their private lives, and what protections the law offers against such intrusions on privacy.
The Guardian’s coverage quoted mental health and privacy advocates as expressing concern about the intrusive nature of increased surveillance and the possibility that use of "smart infrastructure" in privately run communities could spread to other areas of life.
While it might be argued that such surveillance could help employers to assess the leisure needs of the workforce and then tailor conditions to improve their lives in harsh environments, the disturbing potential shift in emphasis from the workplace into private life reflects increasing community concerns about invasion of privacy in the digital era.
What does the law say about drones and privacy?
Workplace surveillance laws are complex and fragmented.
The Victorian Surveillance Devices Act 1999, for example, establishes broad principles for prohibition of surveillance without consent and specifically provides that an employer must not knowingly install, use or maintain an optical surveillance device or a listening device to observe, listen to, record or monitor the activities or conversations of a worker in a toilet, washroom, change room or lactation room in the workplace.
By comparison, the New South Wales Workplace Surveillance Act 2005 prohibits the use of unauthorised covert surveillance to monitor workplace performance, as well as change rooms, toilets, and bathing facilities. In addition, it specifically prohibits an employer from carrying out surveillance when an employee is not at work, unless the surveillance is computer surveillance of the use by the employee of equipment or resources provided by or at the expense of the employer. Broadly similar provisions apply under the ACT Workplace Privacy Act 2011, though surveillance when a worker is not at work is permitted where the employer conducts surveillance of a worker’s use of equipment or resources provided by the employer using a data surveillance device; or the employer conducts surveillance using a tracking device that includes a tracking function that cannot be deactivated; or the employer is a law enforcement agency.
Enterprise agreements may also contain provisions governing workplace surveillance, with the attendant potential for inconsistency with surveillance laws and further confusion.
The fading distinction between workplace and home
Superimposed on the lack of legislative uniformity, and a further challenge for law-makers, is that the distinction between work and private life is slowly dissolving.
Geographical location no longer fixes the boundaries of what is, and is not, work-related. It has been recognised that comments posted on social media may have an effect on what happens at work and, indeed, may constitute a species of workplace bullying in certain circumstances. There has already been at least one case in which sexual harassment occurring away from the workplace, but in employer-provided accommodation, has been held to have sufficient connection with work for the purposes of anti-discrimination law.
For those who seek to erode workers’ rights, such cases might be relied upon to provide a platform for employers to assert that it is not only acceptable, but an obligation under health and safety laws for a drone to keep a watchful eye on the leisure activities of all its workers, away from the workplace.
Clearly, such an invasion of workers’ privacy should not be entertained, but the law is not evolving as swiftly as technology.
In 2014, “Eyes in the Sky”, a parliamentary report into drones and the regulation of air safety and privacy, noted that the capacity of remotely piloted aircraft, or drones, to enter private property, to travel unnoticed, and to record images and sounds which can be streamed live, create significant opportunities for privacy breaches. It also noted that Australia’s privacy laws, which operate at both Commonwealth and State levels, were complex, at times outdated by emerging technology, and that significant variations exist between jurisdictions.
The danger is that workers’ privacy will be a casualty of the law’s inertia and slowness to adapt.