Privacy Commissioner on Search and Surveillance Bill

November 3rd, 2009 at 9:00 am by David Farrar

Their submission is online here.

It will also increase the situations that interception and tracking devices can be used in. Instead of being restricted to certain types of serious crime, enforcement officers will be able to apply for surveillance device warrants on the same basis as search warrants.

This is the point Bell Gully also made. And there is a significant difference (to me anyway, and I am sure most people) between a search warrant and covert surveillance.

However, notification to the individual who has been the subject of a surveillance warrant is not required before a prosecution. An issuing Judge may order notification only if there has been a problem with the warrant (eg a breach of its conditions). From a privacy perspective this is problematic as an individual should generally have the right to know what surveillance has been carried out. I appreciate that in the case of surveillance warrants it is impractical to provide notification in advance of the warrant being carried out. However, notification after the fact should be a matter of course. This must be subject to practical considerations such as the status of ongoing investigations and the safety of others. Notification is common in other jurisdictions such as Germany and the United States.

As I read this, you could have your phones bugged. And if the information obtained is not used in a prosecution, you will never know you were bugged. I think one should know if the state has bugged your phone – unless it will interfere with ongoing investigations or endanger other people.

3.3. Allowing search warrants to be the basis for remotely accessing computers is, from a privacy perspective, alarming. This is mitigated to some extent by the specific limits put on this power in clause 101 (k). The warrant must state whether remote access is authorised, and the provision states that the remote search is limited to things such as Internet data storage facilities that are not located at a physical location that can be searched. This does not seem to allow remote access to the computer itself.

So it sounds like the state can not hack into your home PC remotely, but they can hack into your Google accounts!

Production orders can be issued by an ‘Issuing officer’ who can be a Judge but can also be ‘any other person’ authorised under clause 106. This is a lowering of an important safeguard, particularly in light of the expansion of availability of the orders. Traditional expectations are that intrusions will not be made in private communications without rigorous oversight by a Judge. This is carried into this Bill in the issuing requirements for surveillance device warrants in clause 48. It seems logical that these relatively new, and potentially technical, production orders should also be issued by a Judge.

I prefer judicial oversight. So what does clause 106 allow:

The Attorney-General may authorise any Justice of the Peace, Community Magistrate, Registrar, Deputy Registrar, or other person to act as an issuing officer for a term, not exceeding 3 years, specified in the notice of authorisation.

I like the “or other person” clause. That means I could be appointed an issuing officer for warrants :-)

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6 Responses to “Privacy Commissioner on Search and Surveillance Bill”

  1. Grant Michael McKenna (1,160 comments) says:

    It is the ‘fishing’ aspect that most worries me- IRD remotely access my PC, discover something which suggests that I may have said something to my wife’s cousin about immigration to NZ, and shop me to NZ Immigration. Only criminals need fear such laws- but the state makes us all criminals, therefore we need all fear the law.

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  2. Redbaiter (13,197 comments) says:

    Fascism rises as democracy sinks.

    As the left have incrementally destroyed democracy, so shall they reap what they have sowed.

    The ignorant only support fascism as a solution because they fail to recognise it, and they view new measures as justified by the failures of the socialists.

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  3. Redbaiter (13,197 comments) says:

    The ignorant, the social spawn of the left, only support fascism as a solution because they fail to recognise it, and they view new measures as justified by the failures of the socialists.

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  4. kiki (425 comments) says:

    In the end the state assumes everyone is a criminal.

    Add to this the up coming removal of a jury trial for a crime with a sentence of up to three years and you could be nicely screwed by the state.

    And as an extra a youth judge in America was taking bribes from a private prison to send more young people to it’s jail

    NZ police also dropped their entry standard to get more recruits

    More power to the apparatus

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  5. kiki (425 comments) says:

    The major driver behind this systematic destruction of our freedom is the prohibition on certain drugs.

    The moralists that want to control people have created a great criminal underworld which they then use as an excuse to remove our freedoms

    We need to take our freedom back before it has gone completely

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  6. menace (402 comments) says:

    This is so FUCKED.

    Kiki is onto it in part thats for sure. I relation to what he said i sugest people taeka look at a film called “the union” you could find it on google videos i think or seach for a the torrent. Alcahole is societys true enemy not he other drug, as stated on tv one tonight alcohole is so much more of a problem for NZ than P, bla bla bla, sure you all know the arguments here and you all have you stance/side to them all.

    Anyway, they better not take my rights away, they are mine and while i still have them i say to teh fucking scum bags trying to pull this shit, fuck of and go live in norht korea you ignorent pieces of shit.

    And to those blaming it on the left and the soialists, if its as simple as left and right, socialist VS democracy, cool. Not that simple guys.

    I want to keep my rights.

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