Introduction

This Consultation Paper has been prepared by the Privacy sub-committee of the Law Reform Commission. It does not represent the final views of either the Privacy sub-committee or the Commission, and is circulated for comment and criticism only.

The Privacy sub-committee would welcome submissions on the proposals contained in this Consultation Paper. You are invited to make your views known to the sub-committee, in writing, by 15 June 1996.

It may be helpful for the Commission or the sub-committee, either in discussion with others or in any subsequent report, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all or part of a response in confidence will, of course, be respected, but if no such request is made, it will be assumed that the response is not intended to be confidential.

The Law Reform Commission was established by His Excellency the Governor in Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Attorney General or the Chief Justice.

This is the second part of a reference to the Law Reform Commssion on Privacy which has been considered by the Commission’s Privacy sub-committee. The members of the Privacy sub-committee are:

1. The Law Reform Commission Privacy sub-committee’s terms of reference are as follows:

“To examine existing Hong Kong laws affecting privacy and to report on whether legislative or other measures are required to provide protection against, and to provide remedies in respect of, undue interference with the privacy of the individual with particular reference to the following matters:

(a) the acquisition, collection, recording and storage of information and opinions pertaining to individuals by any persons or bodies, including Government departments, public bodies, persons or corporations;

(b) the disclosure or communication of the information or opinions referred to in paragraph (a) to any person or body including any Government department, public body, person or corporation in or out of Hong Kong;

but excluding inquiries on matters falling within the Terms of Reference of the Law Reform Commission on either Arrest or Breach of Confidence.”

2. The issues raised at (a) and (b) are addressed in the Law Reform Commission report on Reform Of The Law Relating To The Protection Of Personal Data published in August 1994. Most of the recommendations of that report were adopted with the enactment of the Personal Data (Privacy) Ordinance on 3 August 1995. This paper deals with (c) and (d).

3. The references to “intrusion by any means (whether electronic or other means)” and “the interception of communications” in the terms of reference should not be interpreted as suggesting a dichotomy: they overlap in some situations. For example, it is now possible to “read” e-mail by monitoring by remote means the radiation emitted by a word processor (the technology is described in detail later). This could be characterised as either falling under (c) or (d).

4. This paper makes frequent reference to new technologies impacting on privacy. It is not suggested that a regulatory framework should focus on such technologies. Regulation must be founded on general principles. Nonetheless, an awareness of new applications of technology provides a checking mechanism to confirm that any proposed regulatory framework is indeed apt to cover the various applications. As suggested by the example in the previous paragraph, a problem with the differentiation of legal controls according to whether the activity constitutes “intrusion” or “interception of communications” is that the proposed dichotomy may not adequately take account of some applications. This paper will use the general term “surveillance” when both intrusion and the interception of communications are being referred to.

“My objection to being watched or to having my telephone tapped is not necessarily that ‘personal information’ about me has been obtained, for the activities that are observed or the conversations that are monitored do not necessarily involve ‘personal information’. Certainly, it is the main purpose of the intruder to obtain information about an individual, and some of the information may well be ‘personal’ . . . But it should be stressed that there is no necessary connection between the acquisition of ‘personal information’ and the individual’s interest in not being observed . . . When my telephone is tapped my principal objection is that there has been an intentional interference with my interest in seclusion or solitude.”^¹

“If the public becomes skittish about using the public network for fear either that it is full of “back doors” designed so that their local sheriff will be developing a dossier on them based on call set-up information, that fear will translate into reduced use of the system. The result will be the loss of billions of dollars in potential revenue, and along with that many of the jobs, the taxes, and the benefits that we anticipate from the information age.”^²

8. The 1992 Australian Telecommunications Authority (AUSTEL) report on Telecommunications Privacy points out that the telecommunications industry has such specific characteristics as its global nature, high infrastructure costs, and rapidly developing technologies. However, these features are shared to varying degrees by other industries. Similarly, the capture and use of personal data is not unique to that industry. AUSTEL observes that “using telecommunications means for conveying personal information does not by itself comprise an issue of telecommunications privacy”. It accordingly recommends that measures to control the collection and use of personal data by means of telecommunications networks should accord with the data protection principles.

9. The Ontario Information and Privacy Commissioner usefully distinguishes three types of personal information collected and processed by telecommunications carriers or service providers:

10. The Commissioner argues that subscribers understand that customer and billing data will need to be collected by the service providers as an adjunct to the service (the material described at the first and second point above). He points out, however, that subscribers would not regard the conversation or message (the material described in the third point above) as being subject to collection.

11. In the Hong Kong context, upon collection, that data will be subject to the application of the data protection principles pursuant to the Personal Data (Privacy) Ordinance. Accordingly we see our remit in this part of the reference as developing protections against serious intrusions that are supplementary to the more general provisions of the Ordinance. Whilst the zone of protection is narrower than under the Ordinance, we correspondingly recommend that exceptions be much narrower than those under the Ordinance.

“... that area of a man’s life which, in any given circumstances, a reasonable man with an understanding of the legitimate needs of the community would think it wrong to invade.” ^⁴

“... the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. Viewed in terms of the relation of the individual to social participation, privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve.”^⁵

“The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.”^⁶

17. While the Younger Committee concluded that the concept of privacy could not be satisfactorily defined, it identified two principal privacy interests:

“The first of these is freedom from intrusion upon oneself, one’s home, family and relationships. The second is privacy of information, that is the right to determine for oneself how and to what extent information about oneself is communicated to others.”^⁷

18. While the above formulations venture a definition of “privacy” or its elements, the Australian Law Reform Commission follows the more empirical approach suggested by McCloskey:^⁸

“Privacy is an ordinary language word, an ordinary language concept, not a finely honed philosophical or legal concept. This means that we may well find incoherences, inconsistencies in the ordinary concept such that, to be made clear, coherent, useful concept, it needs to clarified, modified, and made to be such. However, if this is done in a very radical way, the new concept may lose its relevance to the ordinary language concept. I suggest therefore that the concept be explicated as closely as possible to the ordinary usage concept, and then, if privacy so understood seems in certain respects not to merit, or not to lend itself to, legal protection and assistance, this be said.”

19. According to this approach, one firstly ascertains the ordinary language concept and, secondly, determines whether the “privacy interests” so encompassed should, as a matter of policy, be protected. Relevant to this latter inquiry are such factors as the requirements of International Covenant on Civil and Political Rights (the ICCPR) as replicated in the Hong Kong Bill of Rights Ordinance (Cap. 383).

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks. ”

21. In its general comment on this provision (which is replicated as article 14 of the Hong Kong Bill of Rights^⁹), the United Nations Human Rights Committee makes the following points on the ICCPR:

22. Regarding the contents of such legislation as it relates to surveillance and interception, the Human Rights Committee states:

“Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorised interference must be made only by the authority designated under the law, and on a case-by-case basis. Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited . . . States parties are under a duty themselves not to engage in interferences inconsistent with article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons.”^¹⁰

23. Also relevant to the interpretation of article 14 of the Hong Kong Bill of Rights is the jurisprudence interpreting the similarly worded privacy provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”). Article 8 of the Convention provides:

“1. Everyone has the right to respect for his private and family life, his home and correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

24. The first limb of article 8 is in virtually identical terms to article 17 of the ICCPR, both being derived from the privacy provision of the Universal Declaration of Human Rights. However, unlike the ICCPR provision article 8 of the European Convention imposes an explicit obligation. Article 17 of the ICCPR instead focuses on protection from interference, but this presupposes an affirmative right to respect to privacy.

25. Article 14 specifically identifies as within the zone of protection family life, home, and correspondence. The ambit of these expressions is reasonably clear and would preclude surveillance of domestic premises. Also, as held in Klass,^¹¹ “correspondence” encompasses all telecommunications. But in ascertaining the scope of protection for surveillance in other spheres, recourse must be made to the word “privacy”. In contrast to article 14, article 8 of the European Convention refers to “private life” rather than “privacy”, but nothing turns on this. Klass ruled that telephone tapping not only constitutes an interference with the individual’s “correspondence” but also with his private life. As regards other methods of spying, the only case apparently reported on this aspect of article 14^¹² dealt with surveillance of the applicant’s youthful participation in political activities. In her analysis, Louise Doswald-Beck concludes that the ruling of the European Commission of Human Rights in that case does appear to be premised on the assumption that individual secret surveillance other than telephone tapping “may well amount to an interference with private life”.

26. It is also arguable that the principles laid down in Klass are not restricted to telephone tapping, although that form of surveillance is specifically dealt with. Certainly the language of the Court often speaks of “surveillance” generally rather than the specific technique in question.

27. In Undercover, Gary Marx describes “a subtle and deep lying shift” in social control:

“As powerful new surveillance tactics are developed, the range of their legitimate and illegitimate use is likely to spread. Where there is a way, there is often a will. There is a danger of almost imperceptible surveillance creep.”^¹³

“The new surveillance goes beyond merely invading privacy, as this term has conventionally been understood, to making irrelevant many of the constraints that protected privacy. Beyond the boundaries protected by custom and law, privacy has depended on certain (technically or socially) inviolate physical, spatial, or temporal barriers - varying from distance to darkness to doors to the right to remain silent. An invasion of privacy required crossing these barriers. With much of the new technology, many of them cease to be barriers.”^¹⁴

“Like the discovery of the atom or the unconscious, new control techniques surface bits of reality that were previously hidden or didn’t contain informational clues. People are in a sense turned inside out, and what was previously invisible or meaningless is made visible and meaningful. This may involve space-age detection devices that give meaning to physical emanations based on the analysis of heat, light, pressure, motion, odor, chemicals, or physiological process, as well as the new meaning given to visible individual characteristics and behaviour when they are judged relative to a predictive profile based on aggregate data.”^¹⁵

28. What are these new technologies that obviate privacy barriers? Wasik describes the following examples:

“A wide range of electronic devices is now available to improve upon the traditional techniques of the industrial spy or eavesdropper. Micro-transmitters can be placed in rooms where sensitive information is to be discussed. Such transmitters are commonplace and easy to obtain. Most of them transmit continuously once installed but some can be activated and de-activated by remote signal. These transmitters are very difficult to detect by physical search since they are so small and may be concealed in furnishings, light fittings, desk equipment, behind pictures, or even plastered into a wall. Silent and invisible flashlight photography can be achieved in darkness and cameras can be adapted to focus and take pictures through minute holes drilled in walls or furniture. Laser beams generated from outside a building can be reflected off the window of a room in which sensitive information is being discussed. Because speech sound-waves cause the window pane to vibrate very slightly, it is possible to record a signal from the reflected beam and re-create the speech.”^¹⁶

29. This (incomplete) description of personal surveillance techniques should be taken in conjunction with techniques aimed at eavesdropping computer data:

“Unauthorised access to the information may be achieved by a number of methods. It may be read off a VDU linked to the computer where the data is stored, either by an unauthorised person gaining physical access to the computer itself, or by the implantation of a listening device, a remotely operated camera, or the recreation of the data from electromagnetic radiation emitted by the computer equipment. . . Or it may be obtained by an unauthorised user accessing the computer directly from long range, through hacking, reading the relevant information or transferring a copy of it to the accessor’s own files.”^¹⁷

30. The reference to recreating electromagnetic radiation is to a process that highlights the opportunites now afforded to eavesdrop:

“It is technically quite possible to ‘read’ from outside a building information currently being relayed through a computer system inside the building, using a television receiver connected to a video recorder, to pick up the electromagnetic radiation surrounding the computer. The data can then be recreated in readable text on the eavesdropper’s monitor, and recorded. The radiation emitted by computers is known as Radio Frequency Interference or Electromagnetic Radiation (ERM). Mainframes and minicomputers emit ERM from all sides of the terminal, including the screen display, as well as from printed circuit tracks and internal wiring. Some cables, particularly those connecting VDUs, disk drives and printers, also emit the signals. Telex and facsimile are similarly vulnerable. The technology necessary to intercept ERM is similar to that used in television licence detector vans, and is relatively cheap and easy to assemble and operate. ERM can generally be picked up within a range of 200 metres, although occasionally further . . . As an espionage device computer eavesdropping is rather haphazard, since the eavesdropper has no way of determining what material will be intercepted, but there is always the chance that useful information will be obtained, perhaps data being entered into the computer prior to encryption. It may also be provide a means of obtaining access to passwords . . . The most effective interim solution appears to be to limit the emission of ERM, by radio frequency filtering techniques, or the shielding of equipment or parts of the building itself, so that it does not pass beyond the building and cannot be intercepted externally.”^¹⁸

31. The development of surveillance technologies has generated a small industry devoted to counter-surveillance. Generally undertaken by private investigators, the techniques used may include:^¹⁹

32. In Hong Kong the control and licensing of surveillance equipment is governed by the Telecommunication Ordinance (Cap 106) and enforcement is not by the police but by the Office of the Telecommunications Authority (OFTA). However, OFTA has not received a complaint in the last 3 years. Nonetheless, according to a recent newspaper report^²⁰, there is every indication that surveillance is widespread in the territory. An estimated 50 shops in Tsim Sha Tsui and Central alone sell surveillance equipment, such as a “pocket calculator” which can, for $8900, transmit a conversation a kilometre away.

33. David Lyon argues that “the growth of electronic surveillance has thrown up questions about ‘privacy’ that ultimately can only be addressed in terms of some conception of personhood and human identity.”^²¹ This is implicit in the human rights jurisprudence that is analysed below in the context of the application of the Bill of Rights. But Lustgarten and Leigh amplify the implicit social concerns:

“One of the defining characteristics of a free person is the ability to control information about oneself. This may be important at an instrumental level: if I cannot conceal my peculiar sexual tastes, I may become unpopular, find doors to employment closed to me, or suffer some other disadvantage. More fundamental, however, is the sense of mental and emotional security that this control entails. Imagine being unable to draw the curtain in your bedroom, so that others can see you naked at any time of their choosing. The fear and revulsion this image evokes has little to do with the beauty or otherwise of one’s body, but everything to do with one’s sense of self. If I have no control over what is known about me, I am seriously diminished as a person both in my own eyes and in those which are capable of intruding upon me. This dual aspect of respect and self-respect is a vital dimension to privacy ... . The promise that ‘Big Brother is Watching You’ derives its horror from the instinctive realisation that it means that one is someone else’s subject, that in a figurative, but still meaningful sense, one is someone else’s property.

As with the eye, so with the ear. ‘Big Brother is Listening to You’ is no less horrific. Clandestine interception or eavesdropping infringes upon a fundamental choice: with whom one chooses to speak. The only defences against it are silence and withdrawal. And here we reach the first point at which the individual character ... connects with the character of a society. Turning inward is not merely bad for the individual personality, it is destructive of a great collective value: sociability. An atmosphere in which people practice self-censorship, avoid sharing thoughts and feelings, and prefer secretiveness for reasons of safety is stultifying and fearful. The knowledge, or even widespread belief, that one’s words will be heard by someone other than those to whom one wishes to speak creates a society of timid, furtive creatures.”^²²

34. To the suggested defences of “silence and withdrawal” we would add encryption. But the thrust remains that while serious social evils may be subject to surveillance, the exercise of the power of surveillance should be strictly limited. The undesirability of the development of a surveillance society had been earlier noted by the Younger Committee. It noted that “in such cases, we were told, the result would be an increase in the incidence of tension-induced mental illness or at least a decrease in the imaginativeness and creativity of the society as a whole.”^²³

35. It is also important to note, however, that the issue is not simply one of the State versus the individual. “Big Brother” may be part of the story, but its connotation that the State has a monopoly on surveillance is misleading. Further, much surveillance is conducted for purposes quite independent of the assertion of social control, or its defiance. For example, hacking is pursued for a variety of purposes ranging from curiosity, to profit, to disparate anti-social purposes.

36. The discussion so far assumes that technologies are invariably privacy invasive. This is an oversimplification. New technologies have been specifically developed to protect privacy. Some of these technologies are based on the capability of concealing the identity of the data source. Anonymity is often the best means of securing privacy. Others, such as cryptography, scramble communication and thereby thwart interception efforts. However, it will be seen that some governments elsewhere are endeavouring to restrict the individual’s use of technologies designed to protect privacy.

37. In Undercover, his seminal study of covert police work, Gary Marx provides a useful classificatory scheme according to whether surveillance is overt/covert and/or deceptive or non-deceptive. He characterises most police work as overt and non-deceptive, such as the open investigation of reported crime. An example of overt and deceptive police work would be a uniformed officer misleading a suspect into believing that an accomplice had confessed. Covert and non-deceptive techniques characterise surveillance activities generally, such as hidden recording devices. But undercover work is both covert and deceptive. Unlike unobtrusive surveillance, undercover activities “directly intervene to shape the suspect’s environment, perceptions, or behaviour”. This is achieved by the use of agents posing in other roles, such as colleagues or fellow criminals. From this vantage point, the investigation may be conducted not after the offence, as with overt police intervention, but before and during the commission of the offence. Nonetheless, undercover activities resemble covert or deceptive tactics in that they provide a means of discovering otherwise unavailable information.

38. Marx makes the important point that to the extent that controls are placed on overt and/or non-deceptive practices there will be an increased demand for covert and/or deceptive practices. Increased controls on unobtrusive surveillance will indirectly encourage the increased use of informer techniques. So if there is a warrant requirement for a bug or wiretap and approval is not forthcoming, undercover activities may be considered, particularly if such activities are legally unregulated. However, the two approaches may also be used together, with surveillance supporting undercover work by enhancing security (by facilitating intervention in emergencies), increasing accountability (by enabling verifications of agents’ accounts), and providing evidence.

39. Extrapolating, controls on one form of covert non-deceptive activity will increase the demand for other, unregulated, forms. For example, regulating telephone tapping but not the bugging of premises may be expected to increase the incidence of the latter, more intrusive, activity:

“It should also be appreciated that there is a dynamic to the protection of human rights in the area of surveillance. Once one form is subject to legal regulation, failure to control other forms not only becomes morally indefensible, but also in practice undermines the protection granted. This arises from the simple behavioural prediction that, assuming equal effectiveness, measures that can be undertaken free of oversight will be much more attractive to people doing the work than those which are subject to review.”^²⁴

40. Apart from the issue of the legality of the proposed surveillance, cost is a factor. Telecommunications interception is a favoured method of surveillance because it is comparatively cheap. This was confirmed by the Australian Barrett Review in 1994, which estimated from information provided by various agencies that such interception costs AUS$570 a day, compared with AUS$1,376 for video, $1,630 for listening devices, AUS$1,895 for physical surveillance, or AUS$2,772 for vehicle tracking.^²⁵ The different surveillance techniques all have the same object, namely the obtaining of information that is not forthcoming through overt methods. The method chosen will depend on legal, logistical, and financial considerations.

41. These factors indicate that an integrated approach should be adopted to the regulation of intrusion and the interception of communications. As covert methods vary in their degree of intrusiveness, such an approach could stipulate that a more intrusive method only be resorted to when a less intrusive one is not practicable. For example, techniques which involve the physical intrusion into premises (e.g. to plant a recording device) may be more intrusive than electronic surveillance conducted by remote means. An integrated approach would have the added advantage of reducing the definitional problems arising from attempting to regulate only some surveillance activities.

42. A set of principles addressing the various calibrations of intrusion was formulated by the Canadian Royal Commission on the secret services:

(b) the means of investigation must be proportionate to the gravity of the threat;

(c) the need for investigative techniques must be weighed against the damage they might do to personal freedom and privacy;

(d) the more intrusive the technique, the higher the authority should be to authorise its use;

(e) except in emergencies, less intrusive techniques must be preferred to more intrusive ones.”^²⁶

43. An integrated approach would nonetheless have to accommodate the special considerations arising from the use of surveillance in connection with the provision of customer services, such as telecommunications. Service carriers will be aware that surveillance activities may adversely affect customer relations. This emerges from the recent revelation that Hong Kong Internet users’ customer information was inadequately safeguarded. Supernet’s Project Manager acknowledged that the lapse could be damaging to his customers.^²⁷ H. Jeff Smith describes an increasing consumer backlash against corporations perceived as violating privacy.^²⁸ While consumers have tended to be largely unaware of defective privacy practices, this is changing with increasing media attention devoted to the issue. Privacy is being increasingly used as a competitive weapon as it becomes of more vital concern for consumers. The government mandated surveillance of commercially provided services generates consumer issues that do not arise outside the provision of such services.

44. A number of reports have been released in the last 5 years focusing in telephone tapping in the territory. In 1991 Justice released a report seeking the introduction of legislation requiring phone taps to be justified to an independent body. In March 1991 the Bar Association prepared a submission to the Human Rights Committee on the 3rd Periodic Report on Hong Kong. The submission addressed the issue of telephone tapping and argued that there is “no clear legal authority for this practice” and that added that there was a:

“complete lack of information on who could authorize telephone tapping , under what circumstances it could be authorized, and what safeguards are there to prevent abuse or unjustifiable invasions of privacy.”^²⁹

45. On 5 April 1991, the same paper reported that the Human Rights Committee had questioned government representatives on the issue and called for additional legal protections.

46. On 26 May 1992 the South China Morning Post reported that the Convenor of the Omelco Constitutional Development Panel, Mr Andrew Wong, had said that the reference in section 33 of the Telecommunication Ordinance (Cap 106) to tapping in the “public interest” required explication.

47. At its meeting on 20 January 1993, the members of the Legislative Council Panel on Constitutional Development suggested that the Law Reform Commission should be requested to make a preliminary report on section 33 of the Telecommunications Ordinance. More recently, the Review Committee of the Independent Commission Against Corruption recommended a review of existing powers to intercept communications.

48. The most recent development was a proposed private member’s bill to impose a court warrant system to regulate the interception of telecommunications and mail.^³⁰

49. The variability of privacy attitudes between countries, and even different sections of the same community, is acknowledged by commentators. A survey conducted by Drs John Bacon-Shone and Harold Traver in Hong Kong in 1993 included a number of questions addressing surveillance. None of these questions referred to privacy as such. The questions and response are set out below, with the commonest response in bold lettering:

Q. Recently a building has been built so close to yours, that people in it can easily see what you are doing in your living room. Do you take this as a serious matter?

A. No concern at all (“NCAA”): 12.5%; Little concern (“LC”): 22.5%; Very concerned (“VC”): 56.4%; Extremely worried (“EW”): 8.5%.

Q. Do you think that it is necessary that this should be controlled or limited by law?

Q. Someone uses a camera with telephoto lens to take a picture of you in your house without your knowledge or consent. Do you take this as a serious matter?

Q. You discover that your employer has been opening mail sent to you marked “personal”. Do you take this as a serious matter?

Q. You read in the newspaper that in order to combat crime the police are seeking the power to tap the phones of anyone they suspect of committing a crime. Do you take this as a serious matter?

Q. Recently, private telephone conversations are being reported publicly in the newspaper to attract readers. Do you take this as a serious matter?

It will be observed that in response to all these questions over 50% thought that legal regulation was called for.

50. We have conceived our initial task to be the articulation of a general, underlying, right to protection against intrusion. Only once we have defined the scope of the right of protection against intrusion can the scope of legal controls be examined. Surveillance involves the capture of personal information. An additional dimension is involved, however, namely the intrusive nature of the process aimed at obtaining information. The use of a surveillance device directed at your home is objectionable whether or not personal information is obtained as a result. However, we have not found it easy to define this additional dimension of concern. Wacks refers to it as “seclusion or solitude”^³¹, but insofar as this conveys the element of territorial privacy, it does not clearly encompass intrusive methods by remote means.

51. The individual’s reasonable expectation of protection from surveillance cannot be based on purely empirical considerations. A society may be rife with intrusions, but this should not preclude an individual from expecting minimum standards. Klass^³² and Malone^³³ are quite clear that the relevant standard is what an individual should be entitled to expect in a society governed by the rule of law. The alternative is not tenable, because it would mean that the rights of the individual could be diminished by their negation in practice. A similar approach is adopted with other rights, such as freedom from torture.

52. Surveillance is often described by reference to whether it is aural or visual, and whether it targets individuals within private premises or outside them. Such an approach focuses on specific instances of intrusion. In principle, we consider the distinction between aural and visual surveillance to be irrelevant. Why should it matter what perceptual sense is being employed by the snoop? Whilst telephone calls may be overheard, letters may be read and significantly communicative non-verbal behaviour monitored. Similarly irrelevant, in our opinion, is the immediacy of the data: infrared signals signify human presence as much as photographic images.

53. A person’s reasonable expectation of privacy can be broadly categorised as having the following three aspects:

when in all the circumstances he has a reasonable expectation that the intrusion in question shall not occur.

54. Implicit in this classification is the distinction between the capture of data that directly emanates from the individual (such as appearance, sound temperature and odour), which is addressed by (a), and data that is instead consciously generated by the individual (such as on his word processor), which is addressed by (c). These are already partly addressed by the Personal Data (Privacy) Ordinance and the anti-hacking provisions of the Telecommunication Ordinance. Physical surveillance, however, is at present totally unregulated.

55. Having briefly considered the individual’s right to, and expectation of, privacy, we now address the difficult issue of what conduct of others infringing this expectation should be subject to criminal sanctions. This is distinct from the issue of whether a civil remedy should be available. Of particular relevance is the question of whether a third party who intercepts a communication between two individuals is liable to either of them for breach of confidence. This question, although relevant to the protection of privacy, is outside our terms of reference. Nonetheless, an attempt has been made to explore such issues in the Annexure.

56. In framing recommendations on criminal sanctions we have been guided by the following principles:

a) Social need: In determining the scope of criminal sanctions, we should not criminalise conduct unless it is essential to do so. Social need is a crucial consideration and a law that does not reflect society’s views on this will be ignored. The adequacy or otherwise of the present law is relevant to whether criminal sanctions are required. A danger of broadly drawn criminal offences is that they could lead to abuse.

b) Establishing norms : Where social need is made out, imposing criminal sanctions usefully establishes social norms proscribing clearly unacceptable conduct.

c) Deterrence and retribution: Establishing a criminal offence would also create a deterrent. This would be so even if no prosecution were ever brought. The regulation of surveillance addresses a unique situation because the conduct in question is by definition intended to be undetectable. Conspiracy to rob is another example of conduct deemed criminal, despite the evidential difficulties. The perpetrator of surreptitious surveillance will seldom be discovered by the victim. If he is discovered, it will either be through discovery of the device or the subsequent disclosure of the information. Access rights under the data protection law may, subject to exemptions, also indicate whether data held must have been obtained surreptitiously. Under the Personal Data (Privacy) Ordinance there are no specific sanctions attaching to the disclosure of surreptitiously obtained data.

d) Systematic investigations: Attaching criminal sanctions to unacceptable conduct provides the individual with police assistance in investigating and remedying wrongdoing.

57. In the light of these principles we now address in the following chapters the three privacy interests identified above, namely:

Chapter 1

The regulation of physical surveillance

Summary

1.1 In this chapter we examine the regulation of surveillance of the individual. The discussion is in two parts: “territorial intrusion” and “extra-territorial intrusion.”

1.2 The first of these is concerned with surveillance involving intrusion into private premises. This has two forms:

it may involve an intruder entering private premises. We reject making mere trespass an offence, but conclude that it should be an offence to enter as a trespasser with the intention of interfering with the privacy of the occupants

it may involve what is commonly called the “bugging” of premises i.e. the placement and use of a surveillance device therein, whether it be a camera, microphone, or similar. We consider that this ongoing source of intrusion also merits criminal sanctions.

1.3 The feasibility of regulating “extra-territorial intrusion” or surveillance at large (i.e. conducted outside private premises) is considered. We conclude that criminal sanctions should only attach to surveillance conducted outside private premises when:

it utilises technical devices, and

it targets individuals within private premises.

We consider these two limitations both correspond to the reasonable expectations of the individual and provide the certainty of scope necessary in criminal provisions.

Recommendations

1.4 We do not recommend the creation of a general crime of trespass. Instead, we recommend a regulatory framework for the control of physical surveillance comprising three criminal offences along the following lines:

entering private premises as a trespasser with intent to observe, overhear or obtain personal information therein.

placing, using or servicing in, or removing from, private premises a sense-enhancing, transmitting or recording device without the consent of the lawful occupier.

placing or using a sense-enhancing, transmitting or recording device outside private premises with the intention of monitoring either the activities of the occupant or data held on the premises relating directly or indirectly to the occupant without the consent of the lawful occupier.

“Private premises” in this context means any private residence, together with its immediate curtilage (garden and outbuildings), but excluding any adjacent fields or parkland. In addition it should cover hotel bedrooms (but not other areas in a hotel) and those parts of a hospital or nursing home where patients are treated or accommodated; school premises; and commercial premises, aircraft, vessels and vehicles from which the public are excluded.

1 TERRITORIAL INTRUSION

Introduction

1.5 Article 17 of the ICCPR (reproduced as article 14 of the Hong Kong Bill of Rights) provides in part that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence.” It adds: “Everyone has the right to the protection of the law against such interference or attacks”. The European Court of Human Rights has held that an unlawful search of a person’s home may constitute an interference with this right.^³⁴

Non-common law jurisdictions

1.6 A number of non-common law jurisdictions have legislative provisions specifically protecting the territorial privacy of domestic premises. Criminal sanctions are prescribed. The provisions are distinct from and additional to any provisions prohibiting surveillance by remote means. Accordingly, article 72 of the Danish constitution provides that “the dwelling shall be inviolable”. The Iceland, Luxembourg and German constitutions have virtually identical provisions. Article 102 of the Norwegian constitution provides that “search of private homes shall not be made except in criminal cases”. Similarly, article 172 of the Netherlands constitution protects physical privacy by allowing the entry of a dwelling without the occupant’s consent only “in the cases determined by law, by virtue of a special or general order given by an order designated by law”.

Hong Kong and other common law jurisdictions

1.7 It has been pointed out that:

“The common law is pre-eminently a law of property. In so far as human rights such as political participation, freedom of expression, or privacy received any protection at all, it was as an adjunct to property interests.”^³⁵

1.8 Entick v Carrington^³⁶ provides a landmark endorsement of the rights of the individual to be protected from ministerially authorised searches on grounds of “state necessity”. Nonetheless the decision is tied to property rights:

“The court expressly refuted the idea that a minister had the authority to issue general warrants to search for papers relating to seditious writing. Neither the argument of state necessity nor the alleged long practice behind the issue of such warrants could make up for the absence of an express statutory power of search. However, ... the decision is critically dependent upon the fact of trespass to land. It did not protect privacy as such, but property rights. The seizure of material critical of the King and his favourites occurred in the plaintiff’s house, enabling him to invoke the tort of trespass.”^³⁷

1.9 Two legal principles deriving from property law which afford some protection from privacy intrusions are those of trespass to land and nuisance. These will now be examined.

Trespass to land

1.10 The Lord Chancellor’s 1993 Consultation Paper described this remedy as follows:

“A plaintiff will have a civil cause of action for trespass to land when, without lawful justification, the defendant enters on the plaintiff’s land, or when he remains on it after his right of entry has come to an end, or when he places or projects any object onto it. ... The plaintiff does not have to show that he has suffered any damage as a result of the trespass in order to bring the action.”^³⁸

1.11 Trespass to land therefore involves the intrusion onto private property without lawful justification or consent. Such consent may be implied. For example, in the absence of signs to the contrary, there would be an implied consent to enter land to knock at the door. Trespass has a long history in English law and in addition to trespass to land there is trespass to goods and to the person. The fact that, unlike the latter, trespass to land was not criminal could be attributable to the complexities of the law relating to title. The tort is of limited practical benefit, due to the expense of litigation and the often paltry damages available. However, exemplary damages may be awarded “where there is an oppressive, arbitrary or unconstitutional trespass by a government official or where the defendant cynically disregards the rights of the plaintiff in the land with the object of making a gain by his unlawful conduct”.^³⁹

1.12 In Baron Bernstein of Leigh v Skyviews and General Ltd^⁴⁰ the plaintiff’s land was flown over and an aerial photograph of his house taken without his knowledge or consent. His claim for trespass was rejected on the basis that the rights of the owner in the air space above his land only extended to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it.

Nuisance

1.13 Unlike trespass to land, nuisance is usually a continuous wrong arising out of a state of affairs, rather than a single act. The Younger Committee summarised this cause of action as follows:

Hon Mr Justice Mortimer	Justice of Appeal (Chairman)
Dr John Bacon-Shone	Director, Social Sciences Research Centre, University of Hong Kong
Mr Don Brech	Records Management International
Mrs Patricia Chu	Assistant Director (Family & Child Welfare) Social Welfare Department
Mr A F M Conway	Great River Corporation Ltd
Mr Edwin Lau	Assistant General Manager, Retail Banking, Hongkong & Shanghai Banking Corporation
Mr James O’Neil	Deputy Crown Solicitor (Lands & Works), Attorney General’s Chambers
Mr Peter So Lai-yin	Deputy Commissioner of Police (Management) Royal Hong Kong Police Force
Prof Raymond Wacks	Head of Department of Law University of Hong Kong
Mr Wong Kwok-wah	Bureau Chief, Asia Times
Mr Mark Berthold	Consultant, Law Reform Commission (Secretary)

Chapter
	Introduction
1	The regulation of physical surveillance
2	Interception of communications: technical aspects
3	Statutory regulation of communications
4	The legal protection of privacy of communications
5	Interception of communications: legal issues
6	The regulatory framework
7	Notification following termination of surveillance
8	Compliance enforcement: supervisory authorities and remedies
9	Legal and policy issues arising from the impact of encryption and other new technologies
10	Other approaches to regulating intrusions: licensing
11	Summary of recommendations
Annexure	Breach of confidence

THE INTERCEPTION OF COMMUNICATIONS