The Crimes Amendment Bill (No 6) does have some good updating of the criminal law, but the exemptions from the interception offences – the exemptions for the police and intelligence agencies – do authorise a huge State intrusion into our privacy.
Privacy is not something abstract. We rightly feel violated when someone intrudes into our private life, whether it be peering into our home or going through our personal things, or, in this case, reading our private emails or hacking into what we might have on our computers. Catching criminals does involve some intrusions on our privacy, but any extension of police powers in this area must be governed by the proportionality principle: that any new intrusion on privacy must be proportional to the additional community benefit derived. We should generally favour the alternative less intrusive means of catching criminals.
I sat on the Law and Order Committee discussing the bill, and there was simply no data, statistical or anecdotal, provided on how many extra criminals might be caught by giving these additional powers to the police and intelligence services. This new power is much more dangerous than the interception powers previously granted to police and intelligence agencies to intercept mail or telephone calls, because we use email and computers so much now. The volume of communications we send and receive has multiplied tremendously. The technology of email interception is so cost-efficient compared with mail opening, for example, that it can be done in a massive way, particularly when less tolerant and less democratic-minded Governments are in power.
We also catch so many third parties, other than the people specifically targeted. Every month there are hundreds or thousands of people who send emails to each of us, and whose privacy would be compromised if we were targeted. This combines with another problem identified by the Canadian Privacy Commissioner, George Radwanski, that “The more information Government compiles on us the more of it will be wrong. That is simply a fact of life.”
There are so many ways that information can be mistaken or wrongly interpreted. It can simply be errors, loose language, or the way in which we might use irony in our emails. It may be, as the Canadian Privacy Commissioner says: “You are passing time browsing on the Internet, and you are idly curious about what kind of propaganda in favour of al Qaeda various extremists might be putting out. But could visiting such websites get you identified as a potential terrorist yourself?” Anyone can accidentally get caught up in the surveillance net. As the Canadian Privacy Commissioner also says: “The bottom line is this. If we have to live our lives weighing every action, every communication, every human contact wondering what agents of the state might find out about it, analyse it, judge it, possibly misconstrue it, and somehow use it to our detriment, we are not truly free.”
We should also knock on the head the silly argument we often hear: “If you have nothing to hide, you have nothing to fear.” The Canadian commissioner correctly says: “The truth is that we all do have something to hide, not because it is criminal or even shameful, but simply because it is private.” He goes on to say that “the right not to be known against our will, indeed, the right to be anonymous except when we choose to identify ourselves is at the very core of human dignity, autonomy, and freedom.”
So using the proportionality principle, there is a huge downside to granting these extra powers to the police, the SIS, and the Government Communications Security Bureau.
What is the upside? Yes, we may catch some extra criminals. There may be a few, we just do not know how many, but we do know that the really big fish will generally avoid email detection through sophisticated means by using anonymisers, cyber cafes, hotmail addresses, code words, impossible to break encryption, or throwaway cellphones. We could even say that in some respects the new concentration on electronic surveillance could weaken policing.
What seems to be happening in places like the United States is that the spook agencies are increasingly relying on electronic intelligence, to the detriment of real work on the ground. The United States National Security Agency has a huge budget, but it does not seem to know too much about what is going on in the United States or other countries, in places like Iraq. It seemed to be pretty poor in its intelligence around the Iraq war.
Also when I was on the Law and Order Committee I offered some suggestions about constraints on the powers of the intelligence agencies and the police. For instance, I said they should adopt some of the best-practice constraints from overseas but they threw out, for example, a suggestion for auditing email interception warrants based on the procedures of the Federal Ombudsmen’s office in Australia. At least we could have had those constraints.
It also turned down my amendment to inform suspects, against whom no charges were later laid, that their communications had been intercepted, in case those interceptions had some subsequent effect on their lives, and they could track back where that impact came from. The FBI in the United States does have such a notification procedure.
The committee also tossed out the Privacy Commissioner’s suggestion, which I supported, that the police do not need the power to hack into people’s computers, that remote-access power, because it already has the power to search properties under warrants and look at computers – which it frequently has done in the past. So it does not need this new power. It is quite spooky to think that an agency could access a person’s computer-remotely – under this exemption for the police and intelligence agencies, without the person even knowing it. Indeed, Australia has a provision for their intelligence service to change people’s files to hide their entry.
The problem is that the committee said these provisions would allow us to catch more criminals and that we should simply trust the intelligence agencies. We just need to look at the history of intelligence agencies to know they do make mistakes, including in New Zealand where there were the David Small and Aziz Choudry cases. The agencies did make a mistake, and both those gentlemen won awards from the court against our police and Security Intelligence Service, respectively.
What is happening here, through the granting of these powers, is an additional move down the road towards what many people are worried about-the move towards more of a surveillance State. We see that in other forms, too.
A lot of these measures are generated out of the United States and the track it is going down with its Homeland Security system. We are having imposed upon us other privacy intrusions, such as what has been reported in the paper recently-that is, when we visit the United States next year we will need to have fingerprint data on our passports to enter the United States, and possibly other biometric information provided on our passports. Facial recognition systems are being developed for our airports and American airports, which, together with the increasing use of surveillance throughout society, and the provisions in this bill, represent substantial intrusions on our privacy – intrusions that we should not grant to the State.
These intrusions are becoming more prevalent in society because of the advance of technology. We read that cellphones that can take pictures are creating a great privacy problem – they can be left around, and can be used to take pictures and transmit them by email. People have raised concerns that those sorts of intrusions can occur in public places and in workplaces, and we do not want to give these powers, legally, to the police and intelligence agencies. So it is very good that the bill contains general provisions against such powers.
The Green Party supports many things in this bill but, because of these intrusive provisions, we will not be voting for the second reading.