Other provisions of the Act
Let’s now turn to Part 276 of the Act.
Rather than recite the act, I’ll summarize:
• It is an offence to disclose or use any information relating to the content of a communication, services supplied, or any user’s personal information, if;
• That information has come into your possession as a carrier, service provider, contractor, or employee of any of these.
In my mind – with the usual disclaimer that I am not a lawyer – the risk to device makers is in the definition of telecommunications contractors. According to the Act, a contractor is a company that performs “services for or on behalf of” telecommunications carriers.
Even when a phone was a dumb, passive device, if a supplier was aware that a particular phone number was associated with a particular person (for example, because it installed the phone and had to check the line), it couldn’t divulge that information (except in accordance with the Act).
Today, the relationship between carrier and device builder is more extensive and enduring: there’s no doubt that the device makers maintain an ongoing relationship with the carriers that sell their phones. I argue that they fall within the definition of “contractor” in the Act.
And if we return to Part 276 of the Act, it doesn’t matter that the device maker doesn’t disclose your personal information. The use of the information is also covered. The contractor delivering my phone (on behalf of the carrier) could not then use my information to try and sell me something else.
In awe of their own cleverness, the device makers are straying into a different legal grey area.
If the device makers are supplying services that fit the definition of the Telecommunications Act’s “location-dependent services”, then what other obligations does this impose on them?
If they’re providing something that’s a telecommunications service under the Act, then at the very least, they need to be carriage service providers, members of the TIO – and willing to accept the legal obligations that apply.
Who gives consent?
Sections 289 and 290 of the Act does create an exemption. It says that Section 276 does not prohibit disclosure if the subject of the information has given their explicit or implicit consent.
However, I don’t think the kind of consent that you get from an EULA is necessarily what the legislators had in mind. There’s a difference between “may I do this” and “you must to click OK to start using the product, but you can opt-out later if you remember to do so and can work out how”.
The specific wording of the act is that the owner of the information “is reasonably likely to have been made aware that information … is usually disclosed, or used, as the case requires, in the circumstances concerned.”
The EULA is a grey area. Perhaps a court would agree that the “I Agree” button covers this case, perhaps not.
But what about third parties? Here’s a case:
1. Your iPhone collects my WiFi location (which Apple states takes place).
2. My WiFi location is attached to a carriage service.
3. The geodata associated with my WiFi device is attached to an address.
My point here is that regardless of whether this represents an invasion of privacy, it potentially transgresses the Telecommunications Act. As the WiFi owner and carriage service customer, I have most certainly not consented to Apple’s collection, use or disclosure of information about my carriage services.
Apple, however, is doing all three: it’s collecting the data through iPhones, it’s using that data to geolocate the iPhones, and it’s disclosing that data to the iPhone users.
I’m not saying definitely that Apple, Google or Microsoft are breaking the law. But in their cavalier arrogance, these three companies – and, I suppose, others – have sailed into a legal grey area.
Neither they, nor their army of unpaid defenders, can excuse their behaviour by saying “it’s no big deal”. ®