The Search & Surveillance Bill
This bill extends police and government powers of surveillance.
Surveillance powers refer to:
•covert tracking devices on people and vehicles;
•electronic interception (of phone calls, texts, faxes, and emails, and internet communications).
In the electronic age, surveillance has become far easier. Rather watching someone's home, following their car around, steaming open their letters, or listening in to their phone conversations, surveillance operatives can stay in their offices and watch computer feeds in information of what their targets have been doing - at home, around town, or via their cell-phone or computer. Key word searches of electronic communications, facial recognition programmes and tiny tracking devices make this a simple, and far less labour intensive process.
Under this Bill, a range of agencies other than the Police will be able to obtain surveillance warrants. These include any agencies with powers of entry, search or seizure which include many government departments from Internal Affairs and Conservation to Commerce and the Food Safety Authority. For a full list, see this section of the bill.
Under this Bill, the threshold for obtaining a surveillance warrant is low, requiring only a suspicion that the target is breaking a law, or will break that law. It is not only the target's privacy in public areas that is threatened. For some more serious crimes, the warrant can allow the agency can break into one's private home to install the surveillance device. There is even provision in the Bill for an open-ended warrant, issues on a 'declaratory order' which allows the use of any 'technique, procedure or activity that may constitute an intrusion into the reasonable expectation of privacy of any person.'
With more serious crimes the government agency can even engage in 'warrantless' surveillance for the first two days, with all the abuse that this could entail.
No warrant is required to make a 'covert audio recording' of a conversation between a government agent and their target, provided the government agenct consents to the recording.
There are some provisions in the Bill for agencies, once the surveillance has finished, to inform the subject they were being spied upon. However, the target will usually remain in the dark, because there is a let-out clause if the agencies decide that there an 'ongoing' criminal investigation.
All in all, the Bill represents a big step down the road to a surveillance state.
The Bill requires people who may not have been charged with any crime to provide the authorities access to information they have previously been able to keep private. This is done in two ways.
The first is via a 'production order' whereby the person (whether or not they are accused of a crime) is required to hand over documents which may have information about a possible crime. Warrants for production orders can be issued by a Justice of the Peace. Previously, only the Serious Fraud Office could require the production of such documents. This law also makes it more difficult for journalists to protect their sources, and telecommunications companies who wish not to gather information about their customers.
The second invasion of confidentiality is via an 'examination order' whereby a person (again whether or not they are accused of a crime) can be required by Police to answer questions relevant to a possible crime. The crime can be business crime (or the type previously covered by the Serious Fraud Office) or non-business crime which can be any serious fraud, or other crime committed by an 'organised criminal group' defined as a group of three or more people that carries a four year sentence. A Judge has to provide the warrant for these 'examination orders'
It is important to note that anyone who might have information on the possible crime can be forced to answer questions, including a suspect's partner, their friends and their workmates. Suspects can refuse to answer questions which might incriminate them, but those who aren't suspects can't use that defence. If a person refuses to provide incriminating information about their friend, they face a year in prison.
The Bill makes the search powers of state agencies more explicit, and extends the powers of some of these.
It is true that a number of state agencies have previously had somewhat ill-defined entry or search powers, most of which have either not used, or barely used. Most agencies have not, in practice, seen the use of force as part of their search powers. The exceptions are agencies engaged in border control (like Customs) - or in fisheries protection. Over the past two years Fisheries Officers have used force, on two occasions, when conducting a search.
Under this Bill a whole set of agencies are being given detailed search powers which include, under Clause 108 (c) and (d), the power to use force and detain people. These include the Department of Internal Affairs (when searching for illegal boxing, wrestling and gambling, spamming or indecent videos), the Food Standards Authority when inspecting wine, the Department of Conservation when checking boats and vehicles, not to mention the Commerce Commission, the Reserve Bank, and the Treasury when looking for irregularities.
One particularly dangerous search power, specified in Clauses 108 (i) and (j), is the power to take anything off a computer and to make a 'forensic copy'. All the agencies mentioned in the previous paragraph will have this power, along with the ministries of Environment (under the Ozone Layer Protection Act), Agriculture and Fisheries, and the Department of Labour.
A handful of these agencies (the Department of Internal Affairs, the Ministry of Agriculture and the Ministry of Fisheries) did respond to my parliamentary questions admitting that they were already taking forensic copies of computers when searching premises. According to the Bill many more agencies are able to do this.
This is a huge invasion of privacy because these days so much of a person's life - and that of their friends and colleagues - is on their computer. According to the Bill, the agencies are only supposed to search a computer in relation to offences specified in the warrant. But it will be hard to prevent much more intrusive searches of the hard drive to nail the owner for some other infraction, which the searchers will claim came into 'plain view'. The 'plain view' principle, outlined in Clause 119, allows the state agency to gather evidence for crimes not listed on the search warrant, if such evidence is deemed to come into 'plain view' during a search.
Anyone thinking they can protect their privacy with computer passwords or encryption is in for a shock because Clause 125 of the Bill requires those to be provided to the agency with the search warrant.
One of the obvious problems in extending such search and surveillance powers beyond Police is that other state agencies don't have an independent monitoring body like the Independent Police Conduct Authority.
The Bill has caused concern among community political activists, because of the attention that Police already pay to them, including taking photos and videos of protests.
It may well affect political movements planning non-violent protest which may technically breach a law. For example, police may deem pulling out GE crops to be 'intentional damage'. In such circumstances the protestors could have surveillance devices covertly placed in their offices, computers seized and copied, and anyone associated with them forced to answer questions or produce documents, even before a breach of the law has taken place.