Keith Locke on the New Zealand Security Intelligence Service Amendment Bill – Committee stage – part 3 of 5

The granting to an agency of a power to take a copy of what is on a person’s hard drive is a power that should not be given lightly



I thank Minister Finlayson for that explanation, and David Parker for drawing our attention to the lack of clarity on the issue. I will also address those particular clauses, because they relate to the question of computer access. That has been quite a controversial issue, both in the original law back in 2003 that the Minister referred to, which granted some powers of computer access to Government agencies, including the Security Intelligence Service, and also in relation to the Search and Surveillance Bill, which gives a range of powers to Government agencies under different Acts, including, I think, the New Zealand Security Intelligence Service Act.

This provision in Part 2 that relates to computer access is an attempt to tie it all together and streamline it, etc., but underneath it all is the more fundamental question of intrusive powers being given to the Security Intelligence Service in its relatively unaccountable state, compared with other agencies such as the police.

Computers have much information—I can speak of my own computer, and I am sure that other members will feel the same—a large proportion of one’s life, views, and attitudes, and sometimes personal correspondence, is sitting on one’s computer. So the granting to an agency, too readily, of a power to take a copy of what is on a person’s hard drive, to search it with key words, and all the rest of it, is a power that should not be given lightly. There have been submissions to select committees on this issue over the years; people get very upset at the intrusion that this involves. The authorisation, although it has been streamlined here, under bills like this bill and the Search and Surveillance Bill can have a certain delegation; it is not necessarily always a high-level, judicial person who will give that authorisation.

The other problem with this bill, and where this bill and this provision relates to the Search and Surveillance Bill, is that when searching, whether a building or a computer, there has been a principle introduced that even though the search is being made on the basis of one crime, if evidence is seen of another crime coming into what is called plain view, then that bit of evidence can be picked up on. If there is enough evidence the charge can be proceeded with in relation to this other crime, which had not necessarily been mentioned in the original warrant. That has a particular problem when applied to computers, because a lot of things can come into plain view. People accidentally use certain words and word combinations to search for one thing, and a whole lot of other things come up, and some smart officer of the Security Intelligence Service or the police can sort of get what they want. They can look for evidence in a whole range of crimes not included in a warrant more easily, in terms of accessing a computer, than possibly if they were searching a person’s home—although there are ways of doing it if they were searching a person’s home.

Police officers might walk into a home looking for a bit of stolen property, for example, and they might sort of know where that stolen property is. But they might forget to look in the particular place for a start but instead look everywhere else in the room or house, and then end up at the place where they knew the piece of stolen property was really likely to be. In the meantime they have searched the whole building and tried to uncover information or evidence on other crimes, if they are out to get that particular person, for example. There may be cases like that. But my main point is that access to computers is very, very problematic, particularly if the person does not know what is going on. But under this legislation and the parallel legislation, the Search and Surveillance Bill, access to a computer can include not only the physical computer one operates from but other computers that are part of the network and various other email addresses. It can relate to trawling, and finding what people are doing with their computer searches. The access can include a whole range of things.