Apple has introduced a new feature in iOS12 that allows users to transform their iPhone, iPad or Apple Watch into a microphone, with the audio feeding back to their connected AirPods. To use the feature, users need only add “Live Listen” to their device’s “Control Centre” through “Settings”, before audio can be recorded and transmitted back to their AirPods from up to fifteen metres away. This latest update creates the potential for anyone with AirPods to covertly listen to a private conversation, simply by leaving their device near the parties. Originally designed by Apple as an accessibility feature to assist users with hearing impairment, “Live Listen” raises important concerns about the extent to which we are able to protect our privacy, especially in the workplace.
In NSW, devices with the capacity to listen and record, as well as their usage, are governed by the Surveillance Devices Act 2007 (the Act). Similar legislation exists in other States and Territories. The Act prohibits individuals from knowingly installing, using or causing a listening device to be used with the intention to overhear, record, monitor or listen to a private conversation between themselves and another party or others (s 7(1)(a) and (b)).
The definition of “listening device” in s 4 of the Act gives such a device the general attributes of being able to overhear, record, monitor or listen, meaning that using “Live Listen” to listen to private conversations falls within the parameters of the Act.
There are two exceptions to the general prohibition on using a listening device to listen to private conversations. The first is given in s 7(3)(a) of the Act and allows a listening device to be used in a private conversation where consent is given expressly or impliedly by all parties. Secondly, and more relevantly, under s 7(3)(b) it is lawful for a principal party of a private conversation to use a listening device and record a private conversation without consent, if, (i) it is reasonably necessary to protect the lawful interests of that principal party, or (ii) the purpose is not to communicate, publish or report the conversation to persons who are not party to it.
Case law suggests the exceptions may only be relied upon in exceptional circ*mstances. However, employers must be cognisant of the increased risk of employees covertly listening to or recording conversations and meetings which the employer intended to be private, such as disciplinary discussions, misconduct investigations and dismissal meetings.
One can imagine a situation where an employee is asked to leave a room while the manager and HR manager discuss the employee's fate. The employee leaves his or her mobile phone in the room, with 'Live Listen' activated, and covertly listens to the conversation.
It is likely employees will seek to rely upon the exception that the covert recording was reasonably necessary to protect the lawful interests of the employee. Whether this argument is lawfully sound remains to be seen. The obvious counter argument for an employer is that there are other available and acceptable alternatives to a covert recording, such as by taking notes of the conversation and having a support person present.
The speed of technological change again outpaces the legislation. However, employers should consider making clear, prior to any private (often contentious) conversations with an employee, that the employee is not permitted to record the conversation.
