Kiwiblog

Law 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.

The ODT editorial:

There has been a good deal of fuss made about the possible consequences of the Government’s decision to implement a Bill based on the Law Commission’s 2007 report “Search and Surveillance Powers”. Many fears have been raised about what the legislation might mean were it to be implemented and, according to some interpretations, enforced to the letter.

The first point that needs to be made is that the Clark Labour government actually introduced a Search and Surveillance Powers Bill last year; this has been withdrawn and a substitute Bill introduced which includes powers being granted to a wider range of law enforcement and regulatory agencies, including the Inland Revenue Department, the Ministry of Fisheries, and the Reserve Bank.

Both National and Labour have supported the law changes to date.

The Government argues the new Bill will provide a coherent, consistent, and certain approach, and claims it will balance law enforcement and human rights. Those who have expressed opposition say it gives far too much power to the bureaucracy, which should be restrained by independent authority such as the courts. They are correct. The powers granted by the Bill are excessively broad.

They apply a one size fits all model, when it is inappropriate.

For people who have been under the impression that one of the principles of our criminal law is the right to remain silent, this Bill proposes a challenge, since agencies of the State are to be given an examination power – available now only to the Serious Fraud Office – to compel a person to answer relevant questions when “reasonable grounds” exist to suspect that a crime punishable by imprisonment has been committed or will be committed and that the suspect has evidential material – a compulsion order subject in most but not all circumstances to the approval of a judge.

Another angle that hasn’t been well publicised.

The Human Rights Commission Submission is here. Extracts:

Freedom of expression, the right to peaceful assembly and association and the right to be free from unreasonable search and seizure are fundamental human rights that are essential to the functioning of a democratic society. For this reason the State’s power to intrude on those freedoms, including through surveillance of its citizens and interception of their conversations and other communications, is necessarily constrained. It is a question of striking an appropriate balance between the public interest and individual liberty.

And the balance we had, appears to be tipping into the direction of greater state powers to intercept.

While none of these rights are absolute, a high threshold is necessary to justify any restriction. As the Attorney-General’s advice notes, “the greater the degree of intrusiveness, the greater the justification that is required and, further, the greater the attendant safeguards to ensure that justification is present”

Covert surveillance is probably the most intrusive thing the state can do, so the justification should be great indeed. And it should primarily be restricted to criminal law enforcement by the Police, and security agencies. Not open to local Councils, the Commerce Commission etc.

While it is correct that the Bill stipulates that a search warrant can only be issued under specific conditions, the powers that are authorised as a result are extensive and will apply not only to the Police but to a wide variety of other enforcement agencies . It is concerning both that an issuing officer no longer needs to be a Judge but can be any “… other person” (provided they have sufficient knowledge, skill and experience) and that the threshold for seeking a warrant is that the officer only needs to have a “reasonable suspicion” that an offence is being, has been, or will be, committed . For these reasons, the Commission is not convinced that the powers in the Bill are necessarily consistent with the right to be free of unreasonable search and seizure.

The Privacy Commission made this point also.

The Bill not only consolidates existing police search powers in one Act but extends either all or aspects of the search and surveillance powers in Part 4 to a wide variety of non-police enforcement agencies .

The Commission questions the rationale for extending some of the powers created by the Bill to agencies such as the Commerce Commission which already has the power under s.98A of the Commerce Act 1986 to issue search warrants. If the legislation is enacted in its present form, employees of the Commerce Commission will be able detain people to determine if they are connected with the search or apply for a surveillance warrant to use interception or tracking devices. Or Dog Control officers (who already have a power of entry under s.14 of the Dog Control Act 1996) being able to enter premises to install a surveillance device.

This is the problem of trying to have a one size fit all law. Just because an agency may require the power of entry doesn’t mean they should be eligible to gain surveillance warrants.

The wide reach of the Bill means that it could have a disproportionate impact on journalists. Private homes and offices will not be exempt. An item in plain view may be taken the course of a search even if not identified in the warrant if the enforcement officer has reasonable grounds to believe he or she could have got a search warrant had they wanted to: cl.119. An external IT provider could be required to assist a person holding a search warrant to access and copy material held on a computer: c1.125 and computers will be able to be accessed remotely, or hacked into: cl.108(i).

The only protection for confidential journalistic sources is cl.130 which reinforces the qualified protection provided by s.68 of the Evidence Act but a Court may order disclosure of material that would disclose the identify of a source or enable it to be discovered, if it would be in the public interest to do so: s.68(2). This effectively modifies the presumption against disclosure in ss(1).

I wonder if the Commonwealth Press Union put in a submission?

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