Speaker 1: Hilda. I'm Chelsea Daniels and This is the Front Page,
Speaker 1: a daily podcast presented by the New Zealand Herald. Is
Speaker 1: New Zealand's legal system moving fast enough to adapt to
Speaker 1: new technologies. It's a question being asked by some of
Speaker 1: our top academics and MPs. The conversation around covert recordings
Speaker 1: has made headlines again this week, as well as raising
Speaker 1: questions around whether it's actually illegal and act. MP Laura
Speaker 1: McClure made global headlines after holding up a photo of
Speaker 1: herself naked in Parliament. It was an AI generated deep fake,
Speaker 1: which McClure said took her only moments to create. So
Speaker 1: do our existing laws protect victims from being abused through
Speaker 1: rapidly developing technology. We discuss that later with the University
Speaker 1: of Canterbury Professor of Law, doctor Cassandra Mudgway, but first
Speaker 1: on the Front Page we discuss that viral deep fake
Speaker 1: moment with AX Laura McClure. So, Laura, what motivated you
Speaker 1: to create this nude deep fake of yourself?
Speaker 2: Yeah, I wanted to highlight the growing or emerging trend
Speaker 2: that is deep fake pornography and realistically it's now starting
Speaker 2: to happen for a youth in particular, and it's becoming
Speaker 2: a huge problem at schools. I'm our party's education spokesperson,
Speaker 2: so I'm out there talking to principles teachers parents alike,
Speaker 2: and I'm also a parent myself. So I've noticed this
Speaker 2: concerning trend over the last few years, and I thought
Speaker 2: that I would create a members bill in order to
Speaker 2: attack the loophole that we have and see if we
Speaker 2: can do something about this.
Speaker 1: Are you surprised by the international reaction to this. I've
Speaker 1: seen it picked up by a lot of international news outlets.
Speaker 2: No, look, I'm actually not and I think this is
Speaker 2: a worldwide trend. When we see the increase in technology
Speaker 2: like AI, we often find that it is used sometimes
Speaker 2: by bad actors the time it's used for good, as
Speaker 2: we know. But I think that this is a growing
Speaker 2: trend worldwide, so I'm not surprised to see us picked
Speaker 2: up internationally.
Speaker 1: I saw that while Justice Minister Paul Goldsmith said they're
Speaker 1: not currently considering adopting the bill, he'll meet with you
Speaker 1: to discuss it. Has that meeting taken place, not just yet.
Speaker 2: But I do believe I am meeting with him next month,
Speaker 2: which I think is a positive step. I understand the
Speaker 2: government has a very busy workload that this is a
Speaker 2: really big problem in the story that I've been hearing
Speaker 2: are like harrowing, to be honest, and it's as this
Speaker 2: government going to wait until somebody actually commits suicide over this,
Speaker 2: or if are we going to actually do something there
Speaker 2: about it?
Speaker 1: Well, I know that you need to convince sixty MP's
Speaker 1: from across the House to support it so it can
Speaker 1: skip that member's bill ballot process. How's that all going?
Speaker 2: Look, I think it's going really well. These positive signs
Speaker 2: from all of the parties in government that if this
Speaker 2: bill was pulled they would definitely support it as far
Speaker 2: as bypassing the Tin. I've got great support from the Greens,
Speaker 2: which is sometimes a bit unusual coming from Act but
Speaker 2: they also have these share the same concerns labor and
Speaker 2: definitely New Zealand first, and I'm talking with Hannah Rafferty
Speaker 2: to discuss if she's on board too. So I've written
Speaker 2: to their party whips or all the party whips saying, look,
Speaker 2: I think this is something a bit more serious and
Speaker 2: requires a lot more urgency. Can we get this out
Speaker 2: of the tin and see if we can get some
Speaker 2: action on it.
Speaker 3: This image is a naked image of me, but it
Speaker 3: is not real.
Speaker 1: This image is what we call a deep faith.
Speaker 3: It took me less than five minutes to make a
Speaker 3: series of deep fakes of myself. Scaringly, it was a
Speaker 3: quick Google search for the technology of what's available. In fact,
Speaker 3: I didn't need to enter an email address. I just
Speaker 3: had to tack a box A so I was eighteen
Speaker 3: and that it was my image and I could use it.
Speaker 1: Do you think we're moving fast enough as a country
Speaker 1: to adapt to new technologies? If we wait for your
Speaker 1: bill to go through the biscuit ten, get drawn, get debated,
Speaker 1: go through three readings, there could be a brand new
Speaker 1: tech or ways of doing things by then.
Speaker 2: Hey, well absolutely there could be. But I believe ye
Speaker 2: my bill would protect from any sensor sized images. So
Speaker 2: whether it's done via the current tech or future tech,
Speaker 2: I think it would cover us into the future. And
Speaker 2: I do believe it's something that we absolutely need to do.
Speaker 2: And this tech is moving really fast, like day by
Speaker 2: day there are new sites, new apps that can do
Speaker 2: all of this kind of thing. And I think, you know,
Speaker 2: as law makers, we really need to consider one. How
Speaker 2: can we adopt AI for good. I think that's a
Speaker 2: real positive thing, but what can we do when people
Speaker 2: use it for malicious purposes?
Speaker 1: What are some of the horror stories you've heard from
Speaker 1: parents and students and teachers.
Speaker 2: Yeah, I've heard quite a lot of heroin stories that
Speaker 2: are really motivating me to push on with us and
Speaker 2: actually show how urgent it is. One of the main stories,
Speaker 2: or the key stories that I've been saying, is about
Speaker 2: a stirtying year old girl and I've got a twelve
Speaker 2: year old boy, so still feels very awfully young for thirty.
Speaker 2: She was deep faked and it was shared amongst her
Speaker 2: peers at school just year nine, and she attempted suicide
Speaker 2: on school site. It was absolutely terrifying and traumatizing, not
Speaker 2: for just for the individual, but for her peers in
Speaker 2: the school, and the lack of support and resource around
Speaker 2: this is really terrifying. It would be on the extreme
Speaker 2: side of things, but other than that case, I've heard
Speaker 2: of many, many other young predominantly females where this is
Speaker 2: happening to her, whether it's at school, university for example,
Speaker 2: or within the workplace.
Speaker 1: Thanks for joining us, Laura, Thank you. Last week, Michael Forbes,
Speaker 1: a former Deputy Press Secretary in Christopher Lucksen's office was
Speaker 1: exposed in a staff investigation for having allegedly made audio
Speaker 1: recordings of sex workers and photographed women on the street
Speaker 1: without their consent. And this case, alongside the calls for
Speaker 1: a crackdown on deep fake porn, have highlighted the issues
Speaker 1: facing our legal system and keeping up with new technology.
Speaker 1: To discuss further, we're joined now on the front page
Speaker 1: by doctor Cassandra Mudgway from the University of Canterbury. First off, Cassandra,
Speaker 1: what are some of the current laws in place around
Speaker 1: covert audio recordings? I imagine they must be illegal in
Speaker 1: some way.
Speaker 4: So there are some crimes under the Crimes Act around
Speaker 4: covert audio recordings, but they only cover audio conversations where
Speaker 4: the person who's intercepting, which is what it's called interception,
Speaker 4: is not party to the conversation itself.
Speaker 1: Right, So if I was to covertly record someone just
Speaker 1: in a conversation between us two, that's okay.
Speaker 4: Yes, yes, So if one party consents to that then
Speaker 4: that would be lead.
Speaker 1: What about in the case where I don't know, say
Speaker 1: it was a covert recording of a session with a
Speaker 1: sex worker.
Speaker 4: So that is a sort of an intimate sort of
Speaker 4: audio recording, and that is lawful, so it's not illegal
Speaker 4: under the Crimes Act. The Crime fact only covers intimate
Speaker 4: video recordings.
Speaker 1: What about recording or filming in public places, things like
Speaker 1: a woman walking down a street at the gem, extreme
Speaker 1: close ups, that kind of thing.
Speaker 4: Yeah, so intimate visual recordings that are prohibited under the
Speaker 4: Crimes Act, which is the non consensual creation, possession, or
Speaker 4: distribution of those. That definition requires that the person that
Speaker 4: you're covertly recording is in a place where they have
Speaker 4: a reasonable expectation of privacy. And secondly, that person is
Speaker 4: in a state of undress or engaged in sexual activity,
Speaker 4: or otherwise maybe showering or going to the bathroom. If
Speaker 4: you have COVID taking of photographs or videos of women
Speaker 4: in public places, the obvious fish hook that I see
Speaker 4: is that the place where the women are being captured,
Speaker 4: generally when you're out using public spaces are so walking
Speaker 4: down the road or in a supermarket or even using
Speaker 4: a public gym, you have a lesser expectation of privacy
Speaker 4: than you do in your own private home. And even
Speaker 4: where you could argue that perhaps zooming in on certain
Speaker 4: body parts where that becomes like the subject of the
Speaker 4: image or video, perhaps that could be recognized that you
Speaker 4: have a higher expectation of privacy there. The image itself,
Speaker 4: according to the definition, must be of those body parts
Speaker 4: being exposed in some way, so naked or in your underwear,
Speaker 4: so it's not easily captured under these sort of criminal
Speaker 4: or that slate of criminal offenses.
Speaker 1: Does any of this counter's harassment Potentially?
Speaker 4: It really depends on the circumstances. So under the Harassment Act,
Speaker 4: harassment involves a pattern of behavior, so at least two instances,
Speaker 4: and that includes specified acts, which does include following or
Speaker 4: watching well otherwise behavior that causes a person to fear
Speaker 4: for their safety. So covert filming could meet this definition
Speaker 4: if it's repeated and or if it causes fear or distress. However,
Speaker 4: proving intent or knowledge regarding that fear can be a
Speaker 4: legal hurdle, I think, especially when the conduct is framed
Speaker 4: as more like your voyeuristic rather than threatening. It's probably
Speaker 4: also difficult to prosecute if the women are being followed
Speaker 4: or watched, they've never become aware of that. I can
Speaker 4: see that as being difficult to prosecute.
Speaker 1: Yeah, does it seem like the laws are a bit
Speaker 1: outdated here.
Speaker 4: Yeah, I think that this situation has really exposed some
Speaker 4: gaps in the law, particularly when it comes to those
Speaker 4: intimate audio recordings, which as the women who brought this forward,
Speaker 4: where we're shocked that wasn't a criminal offense, and generally
Speaker 4: this is a really good opportunity I think to really
Speaker 4: step back and have a look at our current laws
Speaker 4: and while they address some forms of non consensual recording,
Speaker 4: as we've discussed, they were designed with specific technologies and
Speaker 4: behaviors in mind. So that's slate of criminal offenses I'm
Speaker 4: talking about that was created in two thousand and six.
Speaker 4: We're talking about the influx of digital cameras. It's not
Speaker 4: created with everyone having high powered sort of cameras just
Speaker 4: on your phones like we do now with smartphones. So
Speaker 4: as a result, the criminal offenses that we have fail
Speaker 4: to capture newer, equally harmful conduct like the covert intimate
Speaker 4: audio recordings, but also other things like synthetic media abuse,
Speaker 4: like non consensual sexualized depth fakes. So I think that
Speaker 4: we need to really look at law reform in a
Speaker 4: sort of in a different way, something that is more
Speaker 4: technology neutral and perhaps look at what kind of harm
Speaker 4: we want to sort of protect people from. So what
Speaker 4: do we want to protect. We want to protect sexual autonomy,
Speaker 4: bodily antegrity, privacy, and a real focus on that lack
Speaker 4: of consent. I think.
Speaker 5: Initially we figured that there was a gap in the law.
Speaker 5: It's something that was raised as far back as twenty eleven.
Speaker 6: Is it's not a criminal harestler. I feel this case
Speaker 6: is so extreme. It's the most extreme end of cyber
Speaker 6: ar wrestler. But it could be used to shake Okay,
Speaker 6: this probably doesn't have any.
Speaker 5: Day and has been a constant query from the victims
Speaker 5: I've spoken to.
Speaker 7: Why why can the government not step in and put
Speaker 7: protocols in place to protect people? Surely there must be
Speaker 7: something out there that you know the government can can done.
Speaker 5: Well, Sorry, it turns out our laws are pretty good.
Speaker 1: Last year the Herald released Chasing Ghosts the Papper Tier,
Speaker 1: and that looked at the case of Catfish and Natalia Burgers.
Speaker 1: They looked at the legal side of trying to stop
Speaker 1: her and found there were laws that could target her,
Speaker 1: but not a specific anti catfishing law or anything like that.
Speaker 1: Despite a lot of the victims wanting something like that
Speaker 1: put forward. Do you think we trend towards being I
Speaker 1: suppose too specific in some of our laws in issues like.
Speaker 4: This, Yeah, because catfishing is a kind of impersonation scam,
Speaker 4: so it was sort of like a romance scam colloquially,
Speaker 4: that's kind of how we refer to it. And if
Speaker 4: you are too specific to tech specific, it could create
Speaker 4: gaps later on. I would assume that would be something
Speaker 4: around fraud or blackmail. But part of the purpose of
Speaker 4: criminal law, I think, is to signal public condemnation of
Speaker 4: certain harmful behavior. There is a purpose to explicitly criminalize
Speaker 4: a specific behavior. You are making it very clear that
Speaker 4: this particular behavior as criminal behavior, and if you are
Speaker 4: convicted of that offense, that it carries the stigma of
Speaker 4: committing that particular behavior, And that's what we call fear labeling.
Speaker 4: So I can see how that could be a really
Speaker 4: good argument to making a specific catfishing offense or a
Speaker 4: specific deep fake offense. You know, I can see that
Speaker 4: being very useful, But again, it runs that risk of
Speaker 4: being two tech specific, and you know, you can find
Speaker 4: gaps in the law later when new tech is developed
Speaker 4: and there are new ways to commit this kind of
Speaker 4: harm in the future.
Speaker 1: What kind of laws would you put forward to kind
Speaker 1: of capture all of the things that we've been talking
Speaker 1: about and to make sure that it's kind of future proofed.
Speaker 1: I guess yeah.
Speaker 4: I think it is just going back and thinking about,
Speaker 4: as I said before, thinking about law reform in a
Speaker 4: principled kind of way, focusing on what we want to
Speaker 4: protect and what is the harmful conduct that we want
Speaker 4: to criminalize, and that focus on a lack of consent.
Speaker 4: I think that's a whole of society sort of conversation
Speaker 4: to be had.
Speaker 1: It's interesting as well because these things happen all the time.
Speaker 1: Look at the stalking laws that have just come through
Speaker 1: or been passed. I mean, we do have the ability
Speaker 1: to look at these kind of consent issues and create
Speaker 1: legislation to cover it, and which covers things like covert
Speaker 1: recordings and taking photos of someone in the street. Hey, yep, yep, the.
Speaker 4: New stalking or although we don't know what the final
Speaker 4: form is going to be, probably would have been helpful
Speaker 4: in this situation and get sort of an earlier police
Speaker 4: intervention as well.
Speaker 1: Thanks for joining us, Cassandra, no worries. Thank you. That's
Speaker 1: it for this episode of the Front Page. You can
Speaker 1: read more about today's stories and extensive news coverage at
Speaker 1: enzad Herald dot co dot nz. The Front Page is
Speaker 1: produced by Ethan Sells and Richard Martin, who is also
Speaker 1: our sound engineer. I'm Chelsea Daniels. Subscribe to the Front
Speaker 1: Page on iHeartRadio or wherever you get your podcasts, and
Speaker 1: tune in tomorrow for another look behind the headlines.