Law Commission on Search and Surveillance Bill
November 10th, 2009 at 2:28 pm by David FarrarLaw Commission Deputy President Warren Young has responded in the Herald to some of the criticisms of the Search and Surveillance Bill. He talks about how computer searches are already an existing power, and also surveillance powers which I focus on:
The second set of criticisms relate to the fact that surveillance powers are extended to a greater range of agencies and types of offences. These extended powers need to be seen in context.
The commission took the view that surveillance is not necessarily more intrusive than a search of private premises; whether it is depends entirely on the circumstances. We regarded surveillance as an alternative form of evidence-gathering which should generally be available to law enforcement agencies that have a search power. That is the approach taken in Part 3 of the bill.
I respectfully disagree with the assertion that covert surveillance is not necessarily more intrusive than a search. I regard having the state break into my house, planting bugs and concealing what they have done as hugely more intrusive than someone turning up at my front door with a search warrant.
Views may differ about whether it is appropriate to provide a surveillance power to agencies that already have the power to search private premises. Certainly agencies should only have the powers that they need. They must also have the appropriate expertise and training to use those powers. No doubt the select committee will wish to consider closely whether more limits or safeguards are needed.
I believe it is best that the powers be limited to existing agencies such as the Police. I don’t think New Zealanders want local Councils, the Pork Board and the Commerce Commission with the ability to bug them – no matter how remote the possibility.
The emphasis in the bill has been on achieving a balance between the needs of law enforcement and human rights. There is good reason for this. Search powers that encroach too far on human rights are unlikely to gain community support. But search powers that are too tightly controlled and prevent law enforcement officers from doing their job effectively jeopardise community protection and bring human rights values into disrepute.
I think the balance has swung too far in the Bill, and it should not proceed if it is not amended. However like the Law Commission I am optimistic that the Select Committee will make some changes that will achieve a better balance.
Related posts:
- Human Rights Commission on Search and Surveillance Bill
- ODT on Search and Surveillance Bill
- Search and Surveillance Bill rewrite
- Bell Gully on Search and Surveillance Bill
November 10th, 2009 at 3:17 pm
This is the most chilling aspect of the bill;
http://www.legislation.govt.nz/bill/government/2009/0045/latest/DLM2136746.html#DLM2136746
Enforcement officer may apply for production order
(1) An enforcement officer who may apply for a search warrant to obtain documents may apply to an issuing officer for a production order against a person in respect of those documents if the enforcement officer is satisfied that the conditions, specified in section 70, for making the order against the person are met.
What this means is that law enforcement (which is a very wide group according to this bill’s definition) can compel you to produce information that is incriminating.
“Documents” in the above quote, can mean “encryption keys” and “passwords” just as much as it can “a piece of paper.”
An “enforcement officer” merely needs to make the following assertion to an “issuing officer;”
“We have reason to believe that X downloaded an episode of Battlestar Galactica” and X then gets a production order that states;
“We reckon you downloaded a copy of Battlestar Galactica. You’re required to produce all of the copies of Battlestar Galactica that you possess, along with your encryption keys and your passwords. By the way, you’re going to stay in this gaol cell until you do.”
No right to silence. No presumption of innocence. This is straight out Police State legislation.
Vote:November 10th, 2009 at 3:31 pm
OOb – the Herald Article states in relation to production orders: Other misunderstandings about the bill have also emerged in the public debate. A new power is a production order that will require those upon whom it is served to produce specified documents. It will be available for all agencies as an alternative to a search warrant. Some have regarded this as an intrusive and unwarranted power in the hands of regulatory agencies. In fact, the bill limits it to circumstances in which a search warrant for the investigation of criminal offending could be obtained. Because it is less intrusive than a search, it ensures that evidence can be gathered in the least intrusive manner possible.
If this is something that the state are already able to obtain but this provides a less intrusive way to do so then I’m not sure I’m so concerned.
Vote:November 10th, 2009 at 3:43 pm
Two questions, for anyone who might know:
1. Can the police (under current law) compel you to produce the key to a locked safe if they think the safe contains relevent documents?
2. Would this law allow the police to demand that I give them my email password (given that my email is hosted on Google’s servers which are not in New Zealand)?
Vote:November 10th, 2009 at 3:48 pm
Not1tocommentoften – You need to improve your power of comprehension. Start with this bit;
A new power is a production order
..from the section you quoted. You might also like to adopt a more skeptical approach to assurances given by those who write articles in newspapers.
This is a new power which removes the right to silence and compels self-incrimination.
Vote:November 10th, 2009 at 3:53 pm
“I regard having the state break into my house, planting bugs and concealing what they have done as hugely more intrusive than someone turning up at my front door with a search warrant.”
I concur and the fact that they don’t see this is a cause for worry.
“I don’t think New Zealanders want local Councils, the Pork Board and the Commerce Commission with the ability to bug them – no matter how remote the possibility.”
Again, we should be very wary of people who want to extend powers to local authorities.
“I am optimistic that the Select Committee will make some changes that will achieve a better balance.”
Again, we shouldn’t have to wait to the select committee for this type of check in the system as it shows agroup of people out of touch with reality and we need to have a good public look at them.
Fine for NZPolice, SIS, MilInt, Customs, GCHQ as they are state organs tasked with our protection but not local govt or other bodies.
further as posted above
No right to silence. No presumption of innocence. This is straight out Police State legislation.
If this were towards a member of a named listed terrorist organisation, i would have no problem as long as there was judicial oversight of it.
Vote:November 10th, 2009 at 3:58 pm
MikeNZ wrote: If this were towards a member of a named listed terrorist organisation, i would have no problem as long as there was judicial oversight of it.
“The terrorists are coming, the terrorists are coming! Quick! Take away my freedom so I can be safe!”
Vote:November 10th, 2009 at 5:12 pm
oob>You’re required to produce all of the copies of Battlestar Galactica that you possess, along with your encryption keys and your passwords.
Section 125 of the bill includes a requirement to hand over passwords to investigators. But it is followed up with an exception if it would incriminate you (or at least that is my interpretation, IANAL)…
“125 (3) A specified person may not be required under subsection (1) to give any information tending to incriminate the person.”
Vote:November 10th, 2009 at 11:58 pm
Of course, what Warren Young, the Svengali of the Law Commission, fails to point out is that when you have the majority support of a parliament that is merely one year into its term, you have no need to obtain community buy-in. You can do what you want when it comes to getting tough on crime.
I suspect that if they took away the right to silence and the put the onus of proof on the defendant then the public would, by the next election, have accepted it as necessary to fight crime. That is, until they are individually affected by the changes.
But then, the Government doesn’t have to worry about individuals, really, because this is about taking away the right of crims, not of individuals.
Davidp: who decides if it would tend to incrimate the person?
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