15 Oct 2009, 01:51

Introductory comment

Search and surveillance is a complex area with an immense impact on citizens' rights in relation to the State. Up to now, it has suffered from a lack of consistency and coherence, but the work of the Law Commission and the resulting Search and Surveillance Bill have significantly improved this situation.

Of course, any discussion of search and surveillance gives rise to major privacy issues. By its nature the Bill covers activities that are intrinsically invasive. The Committee is faced with the hard job of balancing genuine law enforcement needs with the public interest in privacy.

In addition, the electronic age we are living in provides far more scope for search and surveillance activities than ever before. It is important that this major piece of legislation is enacted with appropriate safeguards in place to protect all New Zealanders.

Generally, the Bill successfully manages the competing concerns. However, I have recommended several changes to the Bill, to address what appear to be oversights in the drafting. I recognise that search and surveillance is a vital part of law enforcement and enforcement officers should have the tools they need to carry out this role effectively. However, New Zealanders have the right to expect that the intrusions into their private lives created by the Bill will be justifiable and also operated with appropriate safeguards in place.

Recommendations

Surveillance device warrants

The increase in the use of interception and tracking devices which will undoubtedly follow from this Bill gives rise to significant privacy concerns. The state must be accountable to the individual's concerned for how it collects and uses information about them. There needs to be maximum openness and transparency subject to genuine law enforcement requirements. From a privacy perspective, individuals who have been the subject of such surveillance, under a surveillance device warrant, should be made aware of the fact of their surveillance as soon as possible after the surveillance has concluded. There will be times when notification is not appropriate, but notification should be the default position.

This notification could be achieved quite simply through a letter to the subject of surveillance at the conclusion of the relevant investigation.

Computer searches

Computers are an important and rapidly growing repository of personal information. The ease of automated searches and the large scope of information available electronically make these searches different from paper searches. For this reason there should be a specific statement in the warrant detailing what information is sought from the computer or other electronic device (eg financial records or business related transactions).

In addition, the Bill should more clearly require warrants that authorise computer searches to be as specific as possible as to what remote sites are able to be accessed, and/or the information to be searched on those sites.

Production orders

Production orders potentially make a vast amount of information available to enforcement officers. There obviously need to be adequate controls. Confidence that one's telecommunications are secure from intrusion is an essential feature of private life and the ability to communicate freely. I suggest several additional safeguards to these orders:

• an application for a production order must specify what type of telecommunication is to be covered by the order to provide the law enforcement officer and the issuing officer to turn their mind to what is necessary;
• the privacy implications of others, such as family members, should be considered when production orders are issued;
• the subjects of production orders should be notified of the existence of the order, either before or after it is carried out;
• the orders should be issued by Judges only;
• the exercise of production orders should be reported on, including reporting to Parliament.

Ultimately my recommendations are that the same safeguards that the Bill applies to search warrants, such as notification and reporting, should also be applied to surveillance device warrants and production orders - there seems no reason to apply lesser standards.


View the Search and Surveillance Bill 2009 Submission by the Privacy Commissioner to the Justice and Electoral Committee.


15 October 2009