2003/15: Should mobile phones be banned in swimming pool changing rooms and other public places?

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1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.

2003 / 15: Should mobile phones be banned in swimming pool changing rooms and other public places?

What they said ...
'I can't think of a reason to use a mobile phone in a change room - particularly one which is picture-enabled'
Mr Peter Burnes, YMCA Victoria chief executive

'Most people are not privacy invaders, and the technologies have many benefits. We should not rush to limit and ban them under new laws'
Mr Paul Chadwick, the Victorian Privacy Commissioner

The issue at a glance
Royal Life Saving Victoria has warned Victoria's 308 public pool operators that camera equipped mobile phones could be used to take unauthorised photographs in change rooms.
The lifesaving society intends to include a blanket ban on mobile phones in change rooms in its pool safety guidelines, which most of the state's aquatic centre operators follow.
In June, 2003, following the recommendation of the Royal Life Saving Victoria, YMCA Victoria banned camera equipped mobile phones at its 110 sports and aquatic centres used by 260,000 Victorians each week. YMCA Victoria's chief executive, Mr Peter Burnes, appears to have foreshadowed a possible total ban. 'I can't think of a reason to use a mobile phone in a change room ...' Mr Burnes has said.
The Victorian Attorney-General Rob Hulls then asked the Law Reform Commission of Victoria to investigate the implications for the state's privacy laws of camera phones and other emerging technologies.
A week later a Victorian Supreme Court spokesperson announced that the Supreme Court's policy covering the use of mobile phones in the court precincts was being reviewed 'in response to changing technology'.
It seems likely that Victoria's Supreme and county courts will ban camera phones within their precincts to safeguard the identities of key witnesses. The ban may be extended to all mobile phones.
Victorian Law Institute president, Bill O'Shea, has said, 'Cameras are already banned [within courts], and that rule covers these phones, but if it becomes too difficult to determine whether or not a phone has a camera fitted, then they should all be banned.'
The West Australian opposition then called for the state government to restrict the use of new-generation mobile phones from schools, saying the ability of the devices to take and transmit photos threatens students' privacy.
On August 8, 2003, the Standing Committee of Attorneys General (SCAG) agreed to set up a taskforce to stop the abuse of so-called 'spy phones'.

Background
Mobile phones are a technology that has been taken up with remarkable enthusiasm around the world.
In-Stat and Micro Design Resources, an American research and market analysis group, has recently released a study claiming that Southeast Asia (especially China) and the virtually untapped countries in Africa and the Middle East will supply the growth in mobile phone markets over the next few years. However, it is predicted that providers will run out of new customers in Western Europe and other developed regions, where more than 70 percent of some countries' populations already own handsets.
South Korea's mobile phone subscribers stood at 32 million in May, 2003, nearing the saturation point. To create growth momentum, mobile operators are intending to increase the average revenue per user. One way to justify increasing the cost per mobile phone unit is to add to the capabilities of mobile phones. Text messaging is one instance of this. Incorporating cameras into mobile phones and allowing for multimedia messaging is the next step. The mobile technology offers users the ability to take a photograph and mail it to another phone or an e-mail address in seconds. The photograph can then be stored on a computer or sent out to the worldwide web. These phones are referred to as 3G or third generation.

However, a growing number of countries are restricting the use of video phones after discovering they can be used for voyeurism and amateur pornography, as well as facilitating industrial espionage .
In Switzerland, Zurich has banned visitors to the city's public swimming pools from using mobile phones to photograph other bathers. Other Swiss cities are considering similar laws, as is the United Kingdom.
There have been calls in the United Kingdom to have mobile phones banned from swimming pools, changing rooms, public toilets and creches because of fears that paedophiles will use camera-equipped handsets to take secret photographs of children.
The South Korean government is considering a ban on the use of camera phones in public places. The South Korean Times has claimed that the move to restrict the use of camera phones is bad news for mobile carriers and handset manufacturers that have seen this technology as a way of increasing their market turnover.

Internet information
On June 12, 2003, the ABC's 7.30 Report produced a report on mobile phone cameras and their privacy implications. An extended transcript of this program can be found at http://www.abc.net.au/news/indepth/featureitems/s877930.htm
This is a very useful treatment giving a variety of opinions on all sides of this issue. It also has a number of useful Internet links.

ZDNet Australia is an IT media company informing and connecting the buyers, users and sellers of technology.
On its Internet site it has published a series of articles dealing with camera equipped mobile phones.

On June 11, 2003, ZDNet Australia published an article titled, 'AU mobile picture device ban opens can of worms'. Written by Andrew Colley, the article deals with the 'sharply rising takeup of multi-media mobile phones and other devices with visual recording capabilities' and the 'heated debate over privacy issues' this has generated.
This article can be found at http://www.zdnet.com.au/newstech/security/story/0,2000048600,20275293,00.htm

On June 12, 2003, ZDNet Australia published an article titled, 'A.T.Kearney plays down mobile camera furore'. Written by Iain Ferguson, it deals with one leading management consultant downplaying the market impact of the furore over privacy issues associated with camera-enabled mobile phones.
This article can be found at http://www.zdnet.com.au/newstech/communications/story/0,2000048620,20275329,00.htm

On August 6, 2003, ZDNet Australia published an article titled, 'Vic AG calls for national task force on mobile phone privacy' The article deals with the Victorian government call for a national taskforce to tackle the inappropriate use of mobile phone cameras and the publishing of children's photographs on the Internet.
The article can be found at http://www.zdnet.com.au/newstech/security/story/0,2000048600,20276899,00.htm

On August 7, 2003, ZDNet Australia published an article titled, 'Study: Global mobile phone use to double' Written by Ben Charny, the article deals with a study examining current mobile phone use worldwide and making predictions about future trends.
The article can be found at http://www.zdnet.com.au/reviews/coolgear/mobiles/story/0,2000023537,20276926,00.htm

On August 8, 2003, ZDNet Australia published an article titled, 'National taskforce to tackle mobile phone camera concerns' The article deals with the establishment of a 'national taskforce' to 'try to clamp down on the publication of photos of children on indecent websites and the abuse of so-called spy phones'.
This article can be found at http://www.zdnet.com.au/newstech/security/story/0,2000048600,20276986,00.htm

On August 7, 2003, the Australian Mobile Telecommunications Association published an article titled, 'No Need for Extra Legislation for Mobile Phone Cameras'
The article gives the Associations position on mobile phone privacy and argues that a change in law is not necessary.
The article can be found at http://www.amta.org.au/default.asp?Page=243

Privacy Aware is an Internet publication from the Office of the Victorian Privacy Commissioner. In its June - July 2003 edition it published a comment from the Victorian Privacy Commissioner, Paul Chadwick. The article is titled, 'Peeping mobiles'
The article can be found at http://www.privacy.vic.gov.au/dir100/priweb.nsf/download/BCF7D23F8A75310DCA256D50001A2446/$FILE/PA_June03.pdf
The article is very similar in content to a comment by Paul Chadwick published in The Herald Sun on July 8, 2003, and titled, 'Tough call on photo phones'

Arguments against banning mobile phones at swimming pool changing rooms and other public venues
1. Such a ban is an overreaction
Critics of any general ban on the use of mobile phones in public places argue that such a move would be an overreaction. David Croucher, the marketing manager for Siemens Mobile, has stated, 'It's like the Internet. Now people use the Internet largely as a positive technology but people can still use it in a negative way too. Mobile camera phone technology is the same.'
A similar point has been made by Paul Chadwick, the Victorian Privacy Commissioner. Mr Chadwick has stated, 'Most people are not privacy invaders, and the technologies have many benefits. We should not rush to limit and ban them under new laws.'
Mr Chadwick has further argued that in most instances bans and legal prohibitions will prove unnecessary. He has stated, 'Over time, new social conventions will evolve to cope with the technologies, and people and organisations will self-regulate. People value privacy and adapt to preserve it.
After all, we adapted social rules to handle mobiles in theatres, restaurants and churches.
Now that mobiles can also be cameras that broadcast, if people have their mobile out in a shared changing room at a pool or a gym, other people who are half-dressed or towelling themselves will likely say, "Do you mind putting that away?"'
A similar point has been made by Malcolm Crompton, the federal privacy commissioner, who has said that the issue involves more than just enforcing the law.
'It's encouraging continuation of common courtesy, of common decency, as a good society has always had it,' Mr Compton has said. 'It works out its norms and then it delivers them. I'm not sure that the new technology requires further law.'

2. Such a ban would be difficult to enforce
Policing any ban on mobile phones is going to be difficult. The New South Wales YMCA has indicated that it does not want its members to have to search the bags of swimmers to ensure that they have not brought mobile phones into change rooms. Instead they have chosen to rely on patrons of swimming pool change rooms letting pool staff know if anyone is using a mobile phone in a change room. Even then the New South Wales YMCA has indicated that it anticipates its ban on the use of these phones in these locations will be difficult to enforce.
Norm Farmers, from Victoria's Royal Life Saving Society, has claimed, '[It will] really make life much harder for the lifeguards and the swimming pool operators, who try to make sure that the change rooms are just used for changing and not for any extra curricular activities, such as filming using new mobile phones.'

3. Such a ban would restrict the legitimate rights of ordinary citizens
It has been argued that many uses of cameras, whether incorporated in mobile phones or not, are perfectly appropriate and should not be restricted by private bans or state laws.
This point has been made by Paul Chadwick, the Victorian Privacy Commissioner. Mr Chadwick has stated, 'How do you ban taking photos in public places without criminalising tourists or proud grandparents at a school sports ground?'
A previous Law Reform Commission report on public surveillance had made a distinction between professional monitoring and amateur photography at the beach or pool that was a 'normal activity' and should be allowed.
According to this line of argument, using cameras in many public places should not be either prohibited or made criminal.
The acting NSW privacy commissioner, Maureen Tangney, has said that she supported punishing 'serious intrusions', but not criminalising 'mildly offensive' acts.
It has further been argued that imposing a general ban on mobile phones in a range of locations would restrict the legitimate use of such phones. A general ban would impact not merely on those who have 3G mobile phones, but also on those who have earlier generation phones. It would restrict the reasonable communication uses for which people purchased their mobile phones in the first place.
Graham Chalker, from the Australian Mobile Telecommunications Association, has claimed that moves to regulate mobile phone use need to consider the way the phones are used.
'Well over half of emergency calls, for example, come from mobile phones and you start banning them from places where emergencies could happen, who knows - a life threatening case, something could happen,' Mr Chalker has said.
It has further been noted that the portability of mobile phone cameras make them suitable for a wide range of legitimate uses. Paul Chadwick has stated, 'Victoria is a community in which more than 40 per cent of us were born overseas or are the children of people born overseas.
The mobile phone camera or video is likely to bring a lot of people closer together when special occasions such as weddings, the arrivals of newborns or graduations can be viewed live on the other side of the world by relatives.'
Mathew Klintfalt, a student, was interviewed on a recent edition of the ABC's 7.30 Report, claiming how much he likes the convenience the 3G phones offer. 'They have Internet on them now, so you can check movie times and surf reports really easily, just at the push of a few buttons,' Mr Klintfalt has said.

4. State and federal laws already prohibit the transmission of offensive material
Under the Commonwealth Crimes Act 1914 - Part VIIB, Section 85ZE it is an offence for 'a person to knowingly or recklessly use a telecommunications service supplied by a carrier in such a way as would be regarded by reasonable persons being , in all the circumstances, offensive'.
In addition, following the widespread introduction of the internet, state laws were changed to address this issue. For example the Crimes Act in Victoria was amended in 1995 to include the offence of 'Stalking'. This includes telephoning and sending electronic messages with the intention of causing physical or mental harm.
Also, the sending of images is covered by various State and Territory classification laws, which prevent the publication of material that is objectionable, unclassified or unsuitable for minors.
The acting NSW privacy commissioner, Maureen Tangney, has noted that the covert surveillance of changerooms and workplace toilets was already illegal in NSW.

5. Such a ban would unfairly penalise the manufacturers of mobile phones
The camera equipped mobile phones are at the centre of a fierce marketing war between Optus, Telstra and Vodafone on one side and Hutchison, operator of the Orange network and a new broadband competitor in Australia.
Hutchison operates Australia's first 'third generation' mobile network, offering faster speeds (meaning better pictures and more graphics) than the Big Three networks.
Hutchison is said to have invested about $3 billion in building and promoting its '3' system and has been spending millions on advertising in print, on TV and in shopping centres.
Optus, Telstra and Vodafone - apparently anxious not to lose any of their high-spending, status-conscious customers to the newcomer - have launched similarly lavish advertising campaigns, pushing the fun and virtues of swapping pictures on their networks.
It has been argued that if the use of 3G mobile phones, or mobile phones generally, were to be significantly restricted this would have a significant impact on the companies concerned.

6. The particular technology should not be banned, rather its inappropriate use should be banned
It has been argued that the problem, to the extent there is one, is not the result of the new technology. The capacity to make illicit or covert photographs or videos of people has been with us for a long time. For example the Melbourne man who recently pleaded guilty to child sex charges after making a pornographic video of young girls at a suburban swimming pool was not using a camera equipped mobile phone. He made the video using a conventional video camera hidden under a towel.
Privacy commissioner, Mr Crompton, has noted, 'I'm not sure that the new technology requires further law. We've always had spy cameras.'
Mr Crompton has drawn a parallel with pictures of the late Diana, Princess of Wales, taken in a gymnasium with technology 'older than these spy phones ... It's less whether the new technologies are causing a problem so much as have we got generally the right protections in place ...'
According to this argument, mobile phones should not be banned any more than should cameras, rather their inappropriate use should be prevented.
Graham Chalker, from the Australian Mobile Telecommunications Association, has claimed , 'The issue is not the technology because various other digital imaging devices have been available for some time; the real issue is the inappropriate behaviour of some users.'

Arguments supporting banning mobile phones at swimming pool changing rooms and other public venues
1. Camera equipped mobile phones allow for the taking of unauthorised photographs
It has been noted that the small size of the cameras and the fact that they are virtually indistinguishable from a standard mobile phone means that owners can surreptitiously take photographs, without the subject being aware.
A young man cited in a recent Age report on the issue was reported to have said, 'We got a great shot of a girl's arse at the Big Day Out. She didn't even know. But we just do it for a laugh.'
Another young man interviewed on a recent edition of the ABC's 7.30 Report said, 'One of my mates who's got one actually, as a joke, said that you could stand on the escalators and take photos up girls' skirts, which I thought was a bit much.'

2. People have the right to have their privacy protected
YMCA Victoria chief executive Peter Burns said, 'There is a potential invasion of privacy and we have to protect the interests of customers.'
Royal Life Saving Society of Victoria chief executive Norm Farmer has claimed, 'Our concern is really with the current generation of mobile phones in that they have webcams built into them. They're so small and compact; we're concerned about people's privacy, and private parts being shown to all and sundry.'
Norm Farmer has further stated, 'People who are getting changed in a change room would have a reasonable expectation that they do so with a reasonable level of privacy and an expectation that they're not going to have their private parts plastered all over some sort of public medium, whether that be a newspaper or a Web site or even stored in someone else's personal computer for future gratification.'
It has been noted that 3G mobile phones make the casual violation of people's privacy possible in many contexts.

3. Unauthorised photographs can be misused in significant ways
There is concern that unauthorised photographs, especially of children, can be used in illegal ways to exploit or put at risk those who have been photographed.
'The new technology provides endless opportunities for misuse,' Mr Norm Farmer, Royal Life Saving Victoria's chief executive has said. 'In the last year or two, there have been instances where life savers have appeared on certain websites. They were clothed: but our concern is that people who may be not clothed or have bathing costumes on in change rooms may have their images plastered all over the web.'
This year a Melbourne man pleaded guilty to child sex charges after making a pornographic video of young girls at a suburban swimming pool. He filmed the girls, aged between two and ten, at a local swimming pool as they were changing, according to a summary handed to the court.
There have been calls in the United Kingdom to have mobile phones banned from swimming pools, changing rooms, public toilets and creches because of fears that paedophiles will use camera-equipped handsets to take secret photographs of naked and half-dressed children.
There is also concern that unauthorised photographs of witnesses and others can be taken in or near courts. These photographs could be used for identification purposes and allow the intimidation of those who had been photographed.
Victoria's Supreme and county courts may ban camera phones within their precincts to safeguard the identities of key witnesses.
Some companies that make mobile cameras will not allow them inside their own manufacturing facilities, because of concern over spying. To protect against industrial espionage and intellectual property theft, Samsung and LG Electronics have both barred employees from using camera phones on their research and manufacturing facilities.
There is clearly scope for such a ban to extend to other workplaces where there is a fear that sensitive material might be leaked to competitors or others.
Bookstore owners in Japan are also considering measures to stop female shoppers from snapping pictures of magazines with their camera-phones, a trend they term 'digital shoplifting'.

4. It is difficult to distinguish between a standard mobile phone and one which is camera equipped
The cameras are tiny, with lenses no larger than shirt buttons. Users can appear to be talking on their mobile phone but could easily be photographing someone or something at right angles to their field of view. Some handsets have accessory cameras that plug into sockets on the base, but more cameras are being built in, noticeable only on fairly close examination.
This means that it is virtually impossible to determine whether someone is using an older style mobile phone without the camera facility or one of the new 3G models.
Because it is difficult to distinguish the camera-equipped mobile phones from those which are not so equipped, some organisations and authorities have recommended that all mobile phones should be banned.
Victorian Law Institute president, Bill O'Shea, has argued with regard to mobile phones in courts and court precincts, 'Cameras are already banned, and that rule covers these [camera] phones, but if it becomes too difficult to determine whether or not a phone has a camera fitted, then they should all be banned.'.
Again referring to mobile phones and courts the chief executive officer of the Victorian County Court, Jim Hartnett, has said a review was being conducted there. Mobile phones can now be carried in a courtroom but must be switched off. 'If anyone uses a mobile phone in a courtroom it will be removed by a member of the court staff,' Mr Hartnett has noted.
The Victoria Police has not yet taken official action but police are known to be wary of having any kind of mobile phone waved in their faces.

5. Searching and checking private property is in most instances not feasible
It has been noted that searching and checking private property is likely to be extremely difficult. Even in prisons, where the use of mobile phones of any sort has been banned, many visitors succeed in smuggling mobile phones in and prisoners succeed in hiding them in difficult to detect places.
In free environments, outside prisoners, where members of the public are used to asserting their rights and where groups such as swimming pool managers have to be careful about public relations issues, it would not be feasible to search all patrons for mobile phones.
Under these circumstances it is possible that the simplest solution is that the use of mobile phones be banned. This would remove the necessity for any form of search and simply mean that anyone seen using a phone in an inappropriate location, such as a changeroom, would be asked to stop and put it away.
YMCA Victoria chief executive, Peter Burns, said the decision to ban mobile phones from change rooms at its 110 sports and aquatic centres was necessary to prevent patrons from having their pictures posted on the Internet or stored on personal computers.
'I can't think of a reason to use a mobile phone in a change room - particularly one which is picture-enabled,' Mr Burns has said.

6. Current privacy legislation has not kept pace with new technologies
The Victorian Privacy Commissioner, Paul Chadwick, has noted that the Surveillance Devices Act - which provides for up to two years' imprisonment for recording private activities without consent - may need to be looked at to make sure it covers public changing rooms.
Attorney-General Rob Hulls, also concerned that current laws may not take proper account of technological advances, has asked the Law Reform Commission to investigate the application of the state's privacy laws to new and emerging technologies such as mobile phone cameras.
Mr Hulls has noted, 'The increasing use of mobile phone cameras provides opportunities for the exploitation of children in ways not contemplated by past lawmakers ... It's absolutely critical that we continue to update our laws to keep up with new and emerging technology.'
The same point has been made by Terry O'Gorman, the president of the Australian Council for Civil Liberties. Mr O'Gorman has stated, '... technology is constantly outstripping the ability of parliaments to adapt their privacy laws.'

Further implications
It will be interesting to see what the taskforce on 'spy phone' abuse set up by the Standing Committee of Attorneys General (SCAG) recommends.
This is a complex issue. On the one hand it is easy to see attempts to ban camera equipped mobile phones, let alone all mobile phones, as excessive.
However, the more the issue is discussed, the more numerous become the situations in which the use of these camera phones could be considered inappropriate. Some of the instances of casual voyeuristic behaviour that have been discussed with disapproval would seem to indicate that almost any unauthorised photograph could be considered offensive.
It is unlikely that such an extreme view will find its way into law. As the acting NSW privacy commissioner, Maureen Tangney, has stated, punishing 'serious intrusions' against the privacy of individuals or others seems reasonable, but not criminalising 'mildly offensive' acts.
One of the difficulties facing the taskforce will be to determine what constitute 'serious intrusions'. Photographs taken in changerooms, dressing rooms and other places where people remove their clothing appear by common consensus to be regarded as inappropriate. There are already some laws granting protection in these circumstances.
Similarly protecting the identity of witnesses and others in court hearings is a principle already accepted in law, as are prohibitions against industrial espionage.
What remains to be seen is if the taskforce extends the areas in which unauthorised or potentially offensive photographs are deemed illegal. It also remains to be seen if the taskforce recommends that special legislation needs to be enacted to cover phone cameras as opposed to other more conventional cameras.
There are those who have suggested other solutions to this problem. Korean authorities are reportedly considering legislation which would require phone makers to install a 'noise emitter' in their camera-equipped handsets. Under the bill proposed by Korea's ruling Millennium Democratic Party, manufacturers would have to design their camera phones to emit a loud noise when pictures were taken. This would alert the public when their pictures were taken to prevent human rights infringements and industrial espionage. The Australian taskforce might even make a similar recommendation.

Sources
The Age
11/6/03 page news item, 'Mobile phones to be banned from changerooms'
12/6/03 page 10 news item by Larissa Dubecki, 'Privacy fears on phone cameras'
15/6/03 page 3 news item by Alex Mitchell and Kirsty Simpson, 'Mobiles ring alarms in prisons'
17/6/03 page 7 news item by Garry Barker, 'Courts may crack down on mobiles'
17/6/03 page 7 news item by Rachel Wells, 'A potentially dangerous gadget in the hands of young trendsetters'
17/6/03 page 7 news item by Garry Barker, 'On camera, whether you like it or not'
21/6/03 page 10 (Insight section) editorial, 'Never lose sight of the big picture'
29/6/03 page 6 analysis by Claire Halliday, 'How they rate ... those mobiles with a lens'

The Australian
16/6/03 page 2 news item, 'Bid to jam mobiles in prisons'

The Herald Sun
11/6/03 page 7 news item by Michelle Rose, 'Spy phones banned'
8/7/03 page 17 comment by Paul Chadwick, 'Tough call on photo phones'