In December ITnews reported
information released under Queensland’s right to information laws ... revealed that Queensland police took no disciplinary action against 52 of the 59 officers it investigated for computer hacking between August 2016 and September 2017.Moving on to January, and perhaps in response to that revelation, ITnews states 'Yet another Qld cop charged with hacking: One of four to face charges since December'.
A senior constable has been charged with 'Computer Hacking and Misuse' offences (carrying a a maximum penalty of 10 years imprisonment) for unauthorised access to Qld Police's information systems. He is the state’s fourth police officer to face charges of computer hacking since the start of last month.
Queensland Police states
In keeping with our commitment to high standards of behaviour, transparency and accountability, we have undertaken to inform the public when an officer faces serious allegations of misconduct.
This does not mean the allegations against the officer have been substantiated.A 36-year-old undercover officer from the Brisbane region, was stood down in early December following an internal investigation. A 52-year-old senior constable from Road Policing Command, was subsequently issued with a notice to appear for nine counts of computer hacking after being investigated for conducting unauthorised searches of QPS information systems. A 37-year-old constable from Central Region was then suspended in December after being served a notice to appear for 31 charges of computer hacking.
'Legal Responses to Non-Consensual Smartphone Recordings in the Context of Domestic and Family Violence' by Heather Douglas and Mark Burdon in (2018) 41(1) UNSW Law Journal 157 comments
The increasingly ubiquitous use of smartphones is further complicating the legal response to domestic and family violence (‘DFV’). Perpetrators can now use smartphone recording facilities to record private conversations and activities of their (ex-)partners. Such behaviour may be a criminal offence of breach of a domestic and family violence protection order or stalking. On the other hand, those who have experienced DFV can record perpetrators and use the recordings in legal proceedings. The use of non-consensual smartphone recordings as evidence in DFV related cases is increasing and courts must determine when recordings are admissible. A key factor in making such determinations is whether the recording contravenes state-based criminal laws and listening and surveillance devices law. Drawing on reported experiences of the use of smartphone recordings in the context of DFV we show why further consideration and legal reform is needed if the law is to keep pace with this issue.They state
Increasingly, domestic and family violence (‘DFV’) is understood as involving a complex pattern of coercive and controlling behaviour. Stark has observed that coercive control includes structural forms of deprivation including the micro-regulation of everyday behaviour which, among other effects, subverts victims’ rights to privacy. For Stark, DFV is a liberty crime which creates conditions of ‘un-freedom’. He explains that there are four factors that distinguish coercive control from domestic assault: the extent to which its mode of oppression is embedded in objective structural constraints, its specific focus on enforcing gender stereotypes, its inextricable link to sexual inequality, and the extent to which it restricts autonomy and basic freedoms such as speech, movement and self-determination.
He references the United States Supreme Court’s seminal decision in Griswold v Connecticut, which established an affirmative protection against governmental intrusions into ‘zones of privacy’. These zones of privacy, Stark notes, ‘encompass many of the material and social conditions of equality and self-determination violated by coercive control’. Thus privacy can be understood as an aspect of freedom and autonomy, and coercive control as subverting the freedom of self-determination of the individual.
In the DFV context, it is clear that the use of technology can enhance perpetrator possibilities for limiting a victim’s freedom. There is a growing literature that has situated technology-facilitated abuse as DFV/coercive control. In the Australian context, research by Hand, Chung and Peters drew attention to the variety of information and communication technologies used by perpetrators to abuse and control their intimate or former intimate partners. Woodlock’s recent research identified the increasing use of technology, especially smartphones, by perpetrators to facilitate stalking and other forms of abuse in the context of DFV. Research has also found that sexting coercion can be a form of intimate partner violence, providing perpetrators with another digital route for physical and sexual victimisation. Technology-facilitated abuse is becoming an increasingly important area of research in part because it is experienced by such a large proportion of women and also because, as technology has become cheaper and easier to use, technology-facilitated abuse has become increasingly prevalent. This is especially so in the context of smartphones, given the widespread use of such devices and the ability of smartphone technologies to challenge established notions of public and private spheres, or ‘zones’, as highlighted by Stark above. The application of privacy-related protections, in this context, is further complicated because privacy law has traditionally afforded greater protections to the private, rather than the public, sphere.[13] The once binary relationship between the private and privacy law protections accorded to such spheres is now widely recognised as problematic in the contemporary privacy law literature. Likewise, it is becoming increasingly clear that the applications of new technologies, such as smartphones, are impacting upon individual relationships within such spheres.
As this article shows, certain forms of technological output, such as smartphone recordings, can be used by both perpetrators and victims. Perpetrators can use non-consensual recordings for the purposes of coercively controlling their victim. However, victims are also employing non-consensual smartphone recordings of their abusive partners in an effort to protect themselves, and sometimes for evidence in subsequent legal proceedings. Accordingly, regulating the use of technology, and non-consensual smartphone recordings in particular, presents a conundrum for policymakers. While technology can be used to perpetuate abuse it can also assist survivors to obtain the legal redress and safety they need. The fact that a non-consensual smartphone recording can be used for both positive and negative purposes makes judicial considerations about such recordings complex.
Two similar non-consensual recordings, conducted by both perpetrator and victim in the context of DFV, can have very different purposes or uses and result in different legal consequences. How then are courts to differentiate between the two and determine whether a recording by an abuser is DFV and a form of stalking or intimidation, and whether a recording by a victim is for self-protection or a contravention of relevant listening and surveillance device legislation?
The perspectives of survivors continue to be important in informing appropriate legal responses to DFV, and in this article we draw on interviews undertaken as part of a qualitative study involving women who have experienced DFV and have engaged with the legal system. Interviewees in this study explained how smartphone recording may help to increase their sense of safety and provide valuable evidence for legal proceedings. However, in contrast to this, some interviewees also reported that where abusive partners undertake recording, this may be experienced as intimidating and cause an abused person to be fearful. There are several legal responses to recording depending on the context. In some cases, a person’s act of recording may justify a criminal charge of stalking or intimidation. Depending on whether there is a domestic and family violence protection order (‘DFVO’) in place, and depending on the conditions of the DFVO, recording may be a breach of the DFVO. Finally, in some cases parties may seek to have the recording admitted into evidence and, in most cases, the deciding factor on admitting evidence seems to regard whether the recording is in breach of the various listening and surveillance devices legislation in place in each jurisdiction. In the next section, we provide some further background to the Leaving Domestic Violence Study. We then draw on the reports of the interviewees to frame our discussion of legal responses to recording as abuse and then to recording as a response to abuse, before highlighting the complex concerns for courts in adjudicating legal responses to DFV involving smartphone recordings.
