KEITH LOCKE (Green)
The Search and Surveillance Bill highlights the dilemmas we face in catching criminals without intruding in an unjustified way into the privacy of ordinary citizens. I say at the outset that there are several good provisions in the bill, flowing from the 2007 Law Commission report on search and surveillance measures. The provisions include requiring warrants for visual surveillance, which were not previously required, and systematic reporting procedures after surveillance has taken place.
However, the bill goes too far towards intruding on privacy. Much of the public discussion has so far, rightly, been on examination order requirements forcing people to answer questions when the police and other agencies have “reasonable grounds to suspect” that a crime punishable by imprisonment has been committed or will be committed and that that person has evidential material. This undercuts the citizen’s traditional right to silence outside of when a person is a witness in the courtroom. The bill allows these examination powers to be extended beyond the business environment, where the Serious Fraud Office previously had extra powers for dealing with complex white-collar crime.
These new examination powers will apply for any investigation of an imprisonable offence, as long as three or more people are deemed to be involved in committing that offence. People can now be forced to produce documents under production orders for any offence qualifying for a search warrant. Owners of computers will also be required to assist in providing passwords in order to allow their computers to be accessed during searches. The traditional provision against self-incrimination effectively goes out the window. Even if a person does not, under these provisions, have to tell the enforcement officers anything that will incriminate him or her, under clause 125(4)(a) he or she has to provide access to computer data that “contains or may contain information tending to incriminate the specified person”—the specified person being the one who is in control of the computer. Accessing computers also opens up a serious privacy problem. Police and other enforcement officers are specifically allowed, by clause 108, which governs search powers, to take a forensic copy of computer material.
The Law Commission report goes into some detail of the problems here, particularly as evidential material is mixed up with all sorts of private material—in fact, much of the private and intimate parts of a person’s life. Basically, the bill does not put any controls on intrusions into people’s legitimate privacy via computer searches. Computer searching is also very useful if the police want to go on fishing expeditions for evidence of other offences committed by the person, particularly if the police cannot get the original charges to stick or have a grudge against the person or the organisation he or she might belong to. That might not sound like much of a danger at the moment, but it could become more so if the political or policing environment in New Zealand became a little more oppressive, as it was in Mr Muldoon’s day. Clause 119 enables the police to gather evidential material on offences other than those specified in the search warrant, if that material is in “plain view”. That could perhaps cover data seen while searching a computer, which could well come into plain view.
The bill contains a clause 101(4)(k), which allows police to remotely access people’s computers, or hack in to them, to use the common parlance. The illustration given in the provision relates to things on servers and on the Internet, but it could include ordinary computers. It is a scary provision. As civil liberties lawyer Michael Bott says, it could give the police power to read someone’s email.
The Law Commission report goes into some detail on remote-access problems, including the need for more explicit controls and reporting procedures. The problem we have is that the technology of surveillance is developing so fast that there is greater and greater potential for the State to intrude on our privacy in the name of law enforcement. That is why we need strong controls and no-go areas.
The bill provides some useful authorisation and reporting procedures regarding surveillance warrants, which cover visual surveillance, interception of communications, and tracking. It is good that there will be annual reports on the number of surveillance warrants issued, the number of times surveillance was conducted without a warrant, the duration of the surveillance, and whether convictions ensued. It is good that there is some provision for subsequently telling the targets of surveillance that surveillance has been conducted, but on this matter there are also opt-out clauses that the police will be tempted to use.
One thing that is quite worrying is the provision for residual warrants for surveillance—that is, surveillance not of a visual, electronic interception, or tracking variety. But that could be anything, because the definition in clause 57 covers any “technique, procedure, or activity that may constitute an intrusion into the reasonable expectation of privacy of any person.” It could, for example, cover the covert entry of premises and the copying of materials therein of the sort already done by the Security Intelligence Service. The provision is dangerous.
Just in case people think that this is all just theoretical and that the Greens might be overstating the problem, let us look at what the police did in Operation Eight, at the end of which some Māori and Pākehā activists were arrested and charged with arms offences. Nearly 2 years later the cases have not come to trial. Operation Eight involved massive surveillance and search, culminating in the 15 October 2007 lockdown of much of Tūhoe country and the raids of houses across the North Island. Although I am not privy to the evidence, my information is that thousands of communications were intercepted and recorded. Bugs were put in cars, and phone calls and texts were intercepted. The privacy of thousands of New Zealanders—virtually anyone who communicated with those charged—was breached. That would probably include emails from MPs in this Parliament, because some of those arrested were working with MPs, such as myself, on peace and environmental issues.
It might sound good and proper when surveillance warrants are granted, but we are now so reliant on electronic communications, which can be intercepted so easily, that lots and lots of innocent people can be caught in the electronic surveillance net. That is a big downside of the surveillance authorised in the bill.
Then we have police special investigation group agent Rob Gilchrist being paid $600 a week for infiltrating peace, environment, and animal rights groups and monitoring others, including the Green Party. He collected hundreds of emails from internal exchanges within the groups he spied on, and forwarded them to the special investigation group—all, presumably, without any surveillance warrants. Gilchrist’s then partner, Rochelle Rees, engaged in counterintelligence and took what the bill would call a forensic copy of the data from Gilchrist’s computer and made public that information.
It is disturbing that the police will not publicly admit to the interception activities of the special investigation group through Rob Gilchrist. It illustrates one of the likely shortcomings regarding the surveillance reporting procedures in the bill, which is that the police will regularly use the opt-out clauses and refuse to tell people what surveillance they have been under because the investigations are deemed to be ongoing and could be compromised. The Police Commissioner told the Law and Order Committee that the surveillance of animal rights and other lobbying groups is ongoing.
Operation Eight also involved the searching of many homes. Often computers were taken away for checking—even, in one case, the computer of an overseas speaker who was briefly visiting New Zealand to speak at an environment conference. The seizure of a person’s computer is disabling, particularly when someone relies on it for work. If we are worried about what the police might do with their new powers, we should be just as worried about what other agencies granted extended search powers under this bill might do. These agencies range from the Commerce Commission, the Reserve Bank, the Civil Aviation Authority, and the Ministry of Agriculture and Forestry. The granting of such extended search powers beyond the police force is causing serious concern in business communities and in the law firms that serve them.