We wanted to know whether New Zealand telecommunications companies are installing this sort of software on the phones they sell to us.

Telecom deny that they used anything of the sort:

No, we do not use Carrier IQ. Our devices do not come loaded with this type of software and we don’t have an agreement with Carrier IQ or any other company that implements tools like this.

Vodafone also deny using such software and make a good point about it contravening the Privacy Act:

Vodafone would never knowingly contravene the privacy act and to the best of our knowledge this software is not on any of the devices we sell.

Telstraclear have also denied it (brevity due to denial being via Twitter):

@TelstraClearNZ No, our devices do not keylog. ^TN

2 Degrees joins the rest:

No, we haven’t. The only customer information 2degrees records is for billing purposes. We don’t monitor our customers’ handset activity or request that any software to do so is installed on devices.

Thanks to @nzkarit on Twitter for his assistance with this article.

"Taking photographs around Cuba Mall and a police officer approached and said 'Would you like me to break that?' indicating the camera. He was exceedingly hostile and it turned out it was because the officer thought he had been photographed by us."

"Have to wonder why they confiscate cameras and tapes then. We were told we could pick the tapes up from the station... at which point any knowledge of the tapes was denied."

The legal situation in New Zealand

Firstly, it is generally accepted that anyone can photograph or video anyone else as long as the subject wouldn't have a reasonable expectation of privacy. There are a range of exceptions, but are the police one of them?

We wrote to both the Police Commissioner and the Minister of Police and asked them "Is it against the law in New Zealand to take photos of video of the police at work?"

The Police responded first: "No, not if the photos of video of police at work are taken in a public place, or with the landowner's consent if on private property."

Judith Collins, the Minister of Police, backed up the Police's position in her response, going on to say that she saw no need to change the law and was not aware of any plans to do so.

Conclusion

It seems clear that in New Zealand the police can't stop you from documenting what they are doing. They have no power to stop you, seize your camera or force you to delete images or video.

We believe that this is a good thing and is part of having a police force that is accountable to the people they serve. The police hold most of the cards when it comes to dealing with the public, and the prospect of being recorded should provide a brake on any temptation to abuse those powers.

However one concern remains. Police training does not cover this issue and it seems that some officers feel free to make up their own powers as they go. We recommend that the NZ Police should make sure that this is included in initial and continuing training.

Finally, we remind anyone taking photos of police at incidents to make sure that you do not get in their way or you could be arrested for obstruction.

We changed some of our recommendations between the written and oral submissions, particularly around:

• Notifying people of searches or surveillance against them
• Handling targeted searching of computers

The full text of our oral submissions follows, albeit there were some wording changes in the actual presentation.

Good morning and thank you for giving us the opportunity to make a submission. I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.

In this submission we would like to concentrate on two issues, firstly a general point about notification, and secondly some of the issues around searching computers.

Notification

We are opposed to the general thrust of the bill which, in our opinion, does not strike the appropriate balance between expanding government powers and maintaining civil liberties.

The Bill does have some safeguards to prevent abuses – the need to get a warrant, the requirement to tell someone that they are being searched, the reporting to Parliament of the number of warrants issued, we believe that these do not go far enough.

Particularly when it comes to notification, the bill doesn’t insist on it in all cases. Section 126 of the bill allows the searcher not to notify the target if this would “prejudice on-going investigations”. Unsurprisingly there is also no requirement to notify people of covert audio and video surveillance.

We accept that this is necessary; however we see no legitimate interest in keeping searches or surveillance secret after an investigation is completed.

One of the cornerstones of our open and democratic society is that the government and state agencies are accountable to the people. However, this accountability is impossible if people do not know how the government has acted against them.

Recommendations

Therefore we recommend that the Bill establish the principle that people who are the targets of these powers must be notified.

We also recommend that this should be done automatically after a period of time, say three months, has elapsed. For the rare occasions where this may risk other on-going investigations, we further recommend that the agency involved be able to apply to the courts to delay the notification.

This notification regime will provide an important safeguard against the abuse of search & surveillance powers, by allowing people to challenge the use of those powers against them.
 

Computer Searching

We now turn to the more technical field of searching computers and will be comparing the realities of forensic IT work to the assumptions contained within the Bill.

The intention in the Bill is very clearly that searches will be targeted and limited by the conditions of the search warrant, a principle that we support.

Some earlier submissions expressed concerns that investigators will go on data trawling and intelligence fathering missions, thereby ignoring the conditions on the search warrant. The interim report dismissed these concerns with the comment that "search must be limited through the use of appropriate search terms, to parts of the computer where the documents sought could reasonably be located."

However, the reality is that IT forensics doesn’t quite work this way.

The first thing done when a search warrant is exercised is that the computer systems are seized and a copy is taken of the entire system. This preserves the integrity of the evidence and also allows seized equipment to be returned sooner.

Secondly, investigators then use forensic tools to read the contents of the copied computer and create an index of what is stored on it.

These tools then present investigators with lists of the files on the computer, including filenames, titles, abstracts of documents and thumbnail images of pictures.

By scanning through these lists and looking for the material specified by the search warrant, investigators will also be presented with other material that is not covered by the warrant. They might not be actively “trawling” for material but it will be presented to them anyway. Arguably, this information is now “in plain view” and can be seized and acted on.

This means that any digital search will inevitably extend to cover all material stored on the computer system. Suggesting that the targeting requirements of search warrants will provide any protection is a fiction.

Recommendations

How to resolve this problem? I admit that we have been struggling with it. Our written submission suggested recording all search terms used and presenting that to the defence but, as we have described, this doesn’t really meet the reality of the situation.

Secondly we suggested that information not covered by the search warrant should not be able to be used in court – but we can all imagine situations where a business fraud investigation finds digital evidence of murder or child abuse where it would be insupportable not to act.

However, we have since realised that the law already includes what may be an acceptable compromise. The search laws for the Security Intelligence Service and Customs Departments already tackle this, by saying that unrelated information can be passed to the Police but only if it relates to serious crime. The same is true of the Search & Surveillance Bill where it talks about windfall evidence in the context of video surveillance only being available if the offense would also qualify for video surveillance.

We recommend adopting this compromise so that when searching computer systems, investigators cannot use any information about minor crimes that are not covered by the conditions of the search warrant.

We believe that this may go some way to bridging the divide between the requirement for searches to be targeted and the nature of searching digital data.

However, we note that this still does not address the problem of searchers engaging in general intelligence gathering and would welcome any further changes that could help limit this.

Privacy

Our next topic is privacy. There are very real privacy problems that occur with copying computer systems. For example, an officer executing a search warrant to seize business papers would never think to seize the family photo album, but if they’re taking a computer the family’s digital photos would be swept up along with everything else.

Infringing privacy in this way leads to emotional suffering – I’m sure everyone in this room, and particularly the politicians, would feel uncomfortable with the knowledge that a third party has access to all of their personal letters, family photos, medical records and other documents.

Recommendations

While this problem is probably unavoidable, we suggest that the following recommendations will at least provide people some reassurance about the process:

• That the notification of being searched should include details of what computer data storage items were taken and which of these were copied.
• That copies of computer systems must be deleted as soon as practical.
• That the original owner should be notified when this deletion is complete.

The combination of these recommendations will ensure that people whose privacy has been infringed are at least informed of what has happened to their personal information.

Conclusion

In conclusion, we believe that the Bill hasn’t fully taken into account the effect of the differences between searching in the digital and physical spheres. We hope you can take our recommendations into account and we would be happy to answer any questions

1. General comments about the S&S Bill

While we appreciate the proposed changes to the Bill, we still hold grave concerns about the general thrust of the Bill towards increased powers for search and surveillance.

We have the following comments on some of the issues raised by the Summary Departmental Report.

Enforcement and Regulatory Agencies

The report talks about the scale and complexity of the Bill and how this makes it hard to understand, something that has not been improved in the latest version.

We believe that a significant part of the confusion around the Search and Surveillance Bill is caused by the way that it tries to cater for the requirements of both enforcement and regulatory agencies. This makes the Bill very hard to follow as it is hard to tell which parts apply to which types of agencies.

The conflation of these two types of agencies has also contributed to the “take a power given to one agency and give it to all of them” which has led to absurdities such as allowing city councils to apply for warrants for covert video surveillance.

We recommend that the Bill be split into two, with one bill for enforcement agencies and another for regulatory agencies. This would be similar to the way that the Official Information Act has two versions, one for central government and one for local government. We believe that this would substantially improve the clarity of the law and allow for more flexibility in drafting.

Safeguards and the principle of notification

The report shows that a significant number of submissions have raised concerns about the safeguards for civil liberties in the Bill.

There is also a discussion of notification in the section about production orders, with the Privacy Commissioner recommending that people should be notified when a production order has been issued against them (possibly after the investigation is complete to ensure that it is not compromised).

In response, the report notes in comment 118 that there are no notification requirements for a search warrant and that therefore it would be anomalous to add them for a production order. We accept the inconsistency but suggest that the wrong conclusion has been drawn in response.

We recommend that the Bill establish the principle that the targets of search & surveillance powers must be notified that this has happened at such a time when this will not compromise the investigation. This recommendation is built upon the following principles:

• Our society is built upon open and accountable government.
• It is impossible for someone to challenge the actions of a government agency if they do not know that those actions have occurred.
• There is no legitimate interest in keeping searches or surveillance secret after the completion of the investigation.

This notification regime will provide an important safeguard against abuse of search & surveillance powers by allowing people to respond to and challenge the exercise of those powers used against them.

Examination Orders

In comment 52, the report details that Examination Orders are necessary because people who may wish to help the Police will be prevented from doing so by professional ethics (the example of an accountant is given). However, the Bill does not attempt to address this, but rather provides a means to force people to testify and thereby erodes the right to silence.

We recommend that this section be substantially rewritten to maintain the right to silence, but provide protections to enable people such as accountants to be able to assist the Police with the investigation of serious crimes if they choose to.

Recommendations

1. Split the Search & Surveillance Bill into two, with one for enforcement agencies and the other for regulatory agencies.
2. All targets of search and surveillance activity should have a right to be notified of this at such a time when it will not compromise the investigation.
3. Change examination orders to retain the right to silence but provide protections for people who wish to assist Police with their investigations of serious crimes.

2. Computer Searching

The bill contains a number of provisions around the searching of computer systems. The submissions and comments in response discuss issues around:

• The wide-ranging scope of data held on personal computers
• How to define what is to be searched
• What “plain view” means on a computer
• The issue of “trawling” through computers

Our response

The bill ignores the reality of how computers are currently seized and searched, and therefore contains assumptions about warrant specificity, trawling and plain view that don’t make sense. (This section was prepared in consultation with an experienced computer forensics examiner.)

Copying/Imaging and Analysing Computers

The first thing typically done when a search warrant is exercised is that the computer systems are seized and a copy (an image) of the entire system is taken. This allows the investigator to preserve the integrity of the evidence and also has the advantage of allowing seized equipment to be returned sooner.

Secondly, investigators then use sophisticated tools to read the entire contents of the copied computer to create an index of what is stored on it. Once this indexing process is completed, the contents of the copied computer can be searched quickly and with very little effort.

Indexes, Plain View and Trawling

Analysis tools present investigators with lists of documents, pictures, music files, etc. These lists will typically include filenames, titles, and thumbnail images of pictures or documents.

By scanning through these lists and looking for the material specified by the search warrant, investigators will also be presented with other material that is not covered by the search warrant. They might not be actively “trawling” for material not covered in the search warrant but it will be presented to them anyway. Arguably, this information is now “in plain sight” and can be seized and acted on.

This means that any search of a computer system will inevitably extend to cover all material stored by all people on the computer system. Suggesting that the specificity requirements of search warrants will provide any protection is obviously a fiction.

Copying and Privacy Issues

There are very real privacy problems that occur with copying computer systems. An officer executing a search warrant to seize business papers would never think to seize the family photo album, but the family’s digital photos would be swept up along with the rest of the data on the computer.

This means that seizing a computer risks infringing the privacy of everyone who has personal data stored on the computer system, not just the target of the search warrant (who may not even be the owner of the system).

Infringing privacy in this way leads to emotional suffering – we can all understand the worried feeling someone would have when other people have access to their personal letters and photos. While this is unavoidable when searching shared computer systems (in the same way that it’s unavoidable when searching a house) the law should attempt to reduce this as much as possible while not unduly hindering investigators.

We recommend that notifications around searching should include a list of what computer systems and data storage devices were taken and whether or not they have been copied. This data should be kept for as little time as possible and the further notifications should occur when it is deleted.

Interference with business and personal life

People and businesses are increasingly relying on computer systems. Businesses may not be able to function without access to their customer and product data, whereas individuals may find it difficult to maintain communications with their friends, colleagues and families.

We recommend setting a time limit for holding seized computer systems so that they can be returned to people as soon as possible. This time limit should be sufficient for the systems to be forensically copied for further analysis.

Recommendations

4. That no information from a seized computer system, other than what is specified in the search warrant, should be able to be used.
5. That the forensic computer system used to analyse and search the data should record a list of the searches (i.e. search terms) that are used and the results of those searches. This should be made available to the defence in the event that charges are filed.
6. That the notification of being searched (section 126) should include details of what computer data storage items were taken and which of these were copied.
7. That copies of computer systems must be deleted as soon as practicable (i.e. after it is decided that charges won’t be filed), and that the original owner should be notified when this is done.
8. That computer systems must be returned to the original owner as soon as possible and that a reasonable time limit of one week should be set. This should easily be enough to allow them to be copied for further analysis.

Availability of computer searches

The Bill includes provisions around access to remote computers (sections 108 and 110).

Our response

We appreciate the clarification of “computer system” (submission comment 413). However, the definition still includes “the internet” as this is a connected system with interconnected computers. Judging by the comments in the report this is not the intention and therefore further clarification is necessary.

Recommendations

9. Further clarification of the meaning of “computer system” to exclude computer systems available over the Internet that are not under the control of the people being searched.

Enforced search assistance

Clause 125 of the Bill allows the searcher to require specified people to assist with retrieving data from a computer system, including the provision of passwords and decryption keys. If the specified person refuses to assist they risk fines or imprisonment.

Our response

No access to passwords and keys

One of the principles of good security design is that there should be no other way to access the secured data – no backdoors, master passwords or similar.

This means that in many cases the systems are specifically designed so that the people who control the systems cannot read information stored by the people who use the system. Computer system administrators often will not be able to provide the passwords or decrypt the data even if they want to assist.

How will the courts determine the truth when someone says that they don't have the key or cannot retrieve the password? Will they believe the system administrator who says that they have no way to read their user's files? Will the courts be prepared to jail someone who might be incapable of doing what they are ordered to do?

Significant effort

The Bill says: “may require a specified person to provide access information and other information or assistance that is reasonable and necessary to allow the person exercising the search power to access data”.
We are concerned that there is no limit on the amount of time that the searchers can force the specified person to spend in doing this. Finding and retrieving data can take a significant amount of effort (many hours or even days of work). It seems unjust to force some innocent bystander to labour for free on behalf of the searching agency.

If the Police require a locksmith to access premises they pay them for their services. This should surely apply to any other third-party obliged to assist searchers in their work where the effort involved is substantial.

We note that the Telecommunications (Interception Capability) Act 2004 provides for telecommunications companies to charge for their costs in retrieving data in response to search warrants.

Recommendations

10. The law needs some way to ensure that an innocent third-party is not penalised for being unable to assist by providing access or passwords that they do not have.
11. Agencies compelling assistance from a third-party should have to pay the standard rates for the rendered service after a minimum time.

One thing that has become clear in the debate around the bill is that many people are not fully aware of the existing powers that government agencies have to pry into our personal affairs. It's not uncommon for someone to decry a 'new' power in the Search and Surveillance Bill, only to be told that it is already in existing law.

This article lists, to the best of our knowledge, the current ways that the government can use to watch us. We will expand/correct it as additional knowledge comes to light.

Contents

• General Surveillance
• ACC - Accident Compensation Corporation
• Customs
• Fisheries
• GCSB - Government Communications Security Bureau
• IRD - Inland Revenue Department
• Police
• SIS - Security Intelligence Service

General surveillance

Common rights

Everyone has the right to (in broad terms and with exceptions):

• Record conversations that they are part of.
• Report on things they see.
• Take photos or video of anyone and anything.
• Follow someone to see where they go and what they do.

The media can use these rights and, if not prohibited, so can government departments. For example, the Police don't need to get a warrant to tail someone or to pay an informer to report what they've heard.

However, it is illegal to intercept other people's private communications or to sell equipment designed to do that. it is also illegal to make "intimate visual recordings".

Note that licensed private investigators are not allowed to photograph, video or record people without the written consent of the target.

Video cameras

Video cameras are increasingly common in public and private places in New Zealand. Some examples:

• Cameras in banks and shops that watch both the customers and the workers.
• Council operated cameras in streets and squares.
• Road cameras operated by the NZ Transport Agency.
• Security cameras at airports.

The Police can normally gain access to camera records upon request.

ACC - Accident Compensation Corporation

The Accident Compensation Corporation is known to use private investigators to check up on claimants, but it appears that they have no particular legal powers to do their own surveillance.

Customs

Summary Proceedings Act 1957

The same law that gives the Police the power to install tracking devices on vehicles or anything else can also be used by the Customs Service. The Comptroller of Customs must submit an annual report to Parliament listing the use of tracking devices. In 2008/2009 the use was as follows:

• Warrants issued: 14
• Average duration (days): 27
• Devices used without warrant: 1

Customs and Excise Act 1996

Customs officers have the ability to patrol the bank of any river or lake and the adjacent land, and to enter any building there or part of an air strip for the purpose of surveillance.

Ministry of Fisheries

Fisheries Act 1996

This law gives Fisheries the power to place a person as an observer on any vessel to collect fishery-related information. The owner of the vessel must provide them with food and accommodation.

The Ministry of Fisheries also use investigators to watch and follow people who they suspect of breaching fishing laws.

IRD - Inland Revenue Department

While the IRD has extensive powers to search it appears to have no powers to engage in surveillance.

GCSB - Government Communications Security Bureau

The GCSB derives its powers from the Government Communications Security Bureau Act of 2003.

The GCSB has two roles - interception of communications and the protection of the government's communications from interception. However, the interception explicitly excludes NZ citizens or permanent residents:

Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

However, there is some doubt about the exact workings of the GCSB's satellite interception stations and how much control the GCSB has over the information captured by the other countries it partners with. The GCSB has recently issued a statement denying these allegations.

Police

The Police surveillance and interception powers come from a wide variety of Acts. We have sorted it by act:

Summary Proceedings Act 1957

Summary offences are petty crimes that are dealt with "summarily" - i.e. by a District Court judge without a jury. This law includes provisions for the use of tracking devices. These are devices that reveal the location of a person or thing and/or whether something has been opened/tampered with.

Warrants to use a tracking device must be issued by a High Court or District Court judge. They can be granted for the investigation of any offence. Warrants are issued for up to 60 days but can be renewed. The warrant also gives the office the ability to enter premises to install the device.

An officer can install a tracking device without a warrant if it is not practicable to get one and the officer believes that a judge would issue one.

The Commissioner of Police must submit an annual report to Parliament listing the use of tracking devices. In 2008/2009 the use was as follows:

• Warrants issued: 22
• Average duration (days): 40
• Devices used without warrant: 0

Misuse of Drugs Act 1975 and Misuse of Drugs Amendment Act 1978

This law allows the Police to apply to a High Court judge to get a warrant to intercept private communications for the purpose of collecting evidence about drug crimes. This includes the ability to install interception devices (see note below). Any intercepted information that is not about drug dealing or other serious crime must be deleted.

The Commissioner of Police must submit an annual report to Parliament listing the use of interception warrants. The report must also include the number of prosecutions taken against the Police for misusing the information gained. In 2008/2009 the use was as follows:

• Warrants granted: 38
• Warrants refused: 0
• Warrants that authorised entry onto private premises: 19
• Average duration (days): 24
• Emergency permits: 1
• Interceptions recorded from emergency permits: 326
• People prosecuted: 111
• People convicted: 16
• People still being prosecuted: 82
• Number of prosecutions of police for misusing information: 0

Crimes Act 1961

Part 11A of the Crimes Act 1961 allows for the Police to apply to a High Court Judge for a warrant to intercept private communications where the target is a participant in an organised criminal enterprise or has committed or is about to commit a serious violent offence or act of terrorism.

This includes the ability to install interception devices (see note below). Any intercepted information that is not about serious crime must be deleted.

As a general rule, Judges should only grant warrants where they believe there are reasonable grounds for believing that the crime has occurred or will occur; that the evidence could be collected in no other way; and that the intercepted communications are not likely to be privileged (i.e. talking to your lawyer).

A police constable with the rank of inspector or higher can authorise the use of an interception device in an emergency situation where one person is threatening to kill or seriously injure another.

The Commissioner of Police must submit an annual report to Parliament listing the use of interception warrants. In 2008/2009 the use was as follows:

• Warrants granted: 30
• Warrants refused: 0
• Warrants that authorised entry onto private premises: 14
• Average duration (days): 19
• Emergency permits: 8
• Interceptions recorded from emergency permits: 1763
• People prosecuted: 46
• People convicted: 1
• People still being prosecuted: 36
• Number of prosecutions of police for misusing information: 0

International Terrorism (Emergency Powers) Act 1987

The Prime Minister and three other Ministers can declare an international terrorist emergency. This gives the police the power to, amongst other things, intercept private communications for the purpose of preserving life. This power is also extended to the armed forces when working alongside the police.

Terrorism Suppression Act 2002

This law says that anyone who owns or controls anything that they suspect might belong to a designated terrorist entity must report any transactions concerning it to the police.

Telecommunications (Interception Capability) Act 2004

This law says that communications companies (e.g. phones and internet) must provide facilities that enable law enforcement and intelligence agencies to intercept communications and gather information about those communications (e.g. when they were made).

The warrants themselves are issued under the authority of the other acts mentioned in this article.

Anti-Money Laundering and Countering Financing of Terrorism Act 2009

This law says that financial institutions and casinos must report to the police any transactions that they suspect may be relevant to the prosecution and investigation of money laundering, drug crimes, terrorism, proceeds of crime or any other serious offence.

The Police Commissioner provides guidelines that the banks use to determine whether a transaction is suspicious and therefore must be reported.

Note : Interception Devices

The Misuse of Drugs and Crimes Acts both refer to "interception devices".

interception device means any electronic, mechanical, or electromagnetic instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept a private communication

This is generally taken to exclude video recording (one of the justifications for the Search and Surveillance Bill is to add rules around video recording).

SIS - Security Intelligence Service

The SIS gets its powers from the New Zealand Security Intelligence Service Act 1969. The SIS can also take advantage of the Telecommunications (Interception Capability) Act 2004.

The SIS can "install or modify any device or equipment" to watch someone. We take this to mean audio bugs, cameras, computer monitoring devices, etc. The Act has very few limitations on how this surveillance can be carried out.

They require a warrant, which is applied for by the Director of the SIS and granted by the Minister (traditionally the PM) and the Commissioner of Security Warrants. The warrant can be granted for up to 12 months at which point a new warrant must be applied for.

While the warrant is only to be used to collect information for the "detection of activities prejudicial to security", if they uncover information relating to any serious crime they can pass that information to the NZ Police.

The SIS must submit an annual report to Parliament listing the use of domestic and foreign interception warrants. In 2008/2009 the use was as follows:

• Warrants issued: 24
• Average duration (days): 158
• Methods used: telecommunications interception, listening devices, copying of documents

The SIS also said that there some foreign interception warrants.

We recently asked Customs whether they were able to do this and they replied that they could under the Customs and Excise Act (1996).

Looking for information

We'd like to find out more about what Customs are doing in this area. In particular we'd like to know what they're looking for, whether they're targeting anyone in particular, and what they do with the systems and data they seize.

Please contact us if this has happened to you or anyone you know. Please include as much detail as possible. We promise to respect your anonymity.

The stated intention of the bill is to "reform the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights" while "[providing] for the appropriate legislative powers to enable law enforcement and regulatory agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity".

The bill is largely based on the Law Commission’s report, Search and Surveillance Powers. The search and surveillance powers of the Security Intelligence Service are not included in the bill.

Major parts of the bill are:

• Defining police powers of search with and without search warrants
• Examination and monitoring orders
• Surveillance warrants
• Production orders
• Procedures around obtaining warrants
• Procedures around executing warrants
• Procedures around seized materials
• Reporting on warrants issued and executed

Current Status

The bill passed the first reading in Parliament on August 4th 2009 and was sent to the Justice Select Committee for public submissions. Submissions closed on Friday, 18th September, 2009. The committee was due to report back to Parliament in February but due to the concerns raised has extended this until May 2010.

Reactions to the Bill

Taken on face value, the Search and Surveillance Bill looks to be a good attempt at clarifying the laws around search and surveillance, making them more consistent and better administered. However, the bill has ended up significantly expanding the scope of the current powers as well as adding new provisions and this has generated significant opposition:

The Human Rights Commission has accused the bill of neglecting human rights and going too far in giving power to the state. They particularly criticised the ability for the Attorney-General to authorise anyone to issue search warrants (currently only judges, court registrars and JPs may do so), as well as the extension of the search and surveillance powers to government agencies beyond the Police and SIS.

The Privacy Commissioner has also reported on the bill. Criticisms included the lack of provision for notifying someone that they had been under surveillance after it was over, concern that computer searches are not well specified enough and could turn into trawling expeditions, and the way that the use of production and monitoring searches is expanded from very specific cases to possibly being used for any offence for which a search warrant can be obtained.

Law firm Chapman Tripp made a submission. They raised a number of concerns and particularly questioned the way that the bill takes individual powers given to individual regulatory bodies and aggregates them to give all of the powers to all of the bodies. They also questioned the establishment of residual warrants that have no limits on the type of investigative techniques that can be used.

And finally the New Zealand Council of Civil Liberties also questions a number of provisions in the new bill:

No strong case has been made, either in the Law Commission report or in the subsequent discussion, for the increase in the powers of the State to search cars and houses without warrant, to seize personal property, to flout laws relating to privilege, to use a range of surveillance measures with little accountability, and to charge people who fail to cooperate. The argument for increasing such powers has been made in the context of creating consistency between agencies, not based around clear evidence of need.

The Bill and Tech Liberty

While there are obviously a number of issues with general civil liberties in the bill, what impact will it have on the areas that concern Tech Liberty?

Searching Computers

The bill allows for a copy to be taken of all information stored on a computer system, at which point the copy can be taken away and analysed at the searcher's leisure. We note that there is a trend for people to store more and more of their personal information digitally, and this provision means that many search warrants will result in receiving far more personal information than intended. For example, the people executing a search warrant looking for particular paperwork wouldn't take your personal photo album, but when these are both stored on the same computer they will be swept up together.

Even worse, many people share computers, so not only will the subject of the search have their privacy invaded, so will any other users of that system.  While any search must breach privacy to a certain extent this seems like a disproportionate invasion.

The Privacy Commissioner notes that this risk could be mitigated somewhat by tying the search parameters to the purpose for the search warrant, with the warrant describing what information is to be seized (e.g. "financial transactions"). We agree that this would be a valuable addition to the bill to prevent overreach.

Remote Access to Computers

Section 101(4) k allows for "the remote access and search of things such as Internet data storage facilities that are not situated at a physical location that can be searched". The warrant must specify the access information (we think this refers to information such as the Internet address) for the things to be searched.

This has been taken to allow for the investigators to access data at other sites (owned by the people being searched) as well as accessing data on any other systems or services used by the person, e.g. Google Mail.

Enforced Assistance

Related to this provision is the ability to force people to give access to computer systems they own or control. The penalty for failing to comply is up to three months in prison.

Security is an ongoing problem for computer systems and one of the ways used to prevent security breaches is to use strong encryption, encoding the data so that only the person with the right digital key can access it. In many cases the systems are specifically designed so that the people who control the systems can not read the information stored by the people who use the system, as that would make it too easy for others to also access it.

How will the courts determine the truth when someone says that they don't have the key? Will they believe the system administrator who says that they have no way to read their user's files? Will the courts be prepared to jail someone who might be incapable of doing what they are ordered to do?

The common law in New Zealand has long upheld the principles, taken from English law, that people have a right to silence and to avoid self incrimination. These are important parts of our civil freedoms and our right to a fair trial. We should not so easily remove them.

Monitoring Orders

A monitoring order allows an agency to apply to a telecommunications provider for all call-related information concerning the subject of the order. This includes data about phone calls, SMS messages, emails, instant messaging and other forms of electronic activity, as well as the content of these communications. As this order can be made again and again, it effectively amounts to ongoing surveillance.

Privacy of communication is an important part of free speech and thus democracy. People need to be able to communicate ideas without having to fear that everything they say is being intercepted by the government. The problem is compounded when you realise that any interception breaches the privacy of two people - the person being monitored and the person they're talking to.

Tech Liberty supports the use of monitoring orders for the investigation of serious crimes, when approved by a judge and with suitable systems in place to ensure they are not abused. Such orders should be limited to only capture the relevant information. Monitoring orders as defined in the current Search and Surveillance Bill are available for all crimes, approvable by anyone to a large range of government agencies, and without suitable limits on the data to be captured.

Residual warrants

The bill includes the idea of a residual warrant. This is a catch-all warrant that allows an investigator to apply for a warrant using any search method that they choose (one may ask why one would bother defining any other form of warrants if the residual warrant is available). As Chapman Tripp describes it, "There is no limit to the kinds of investigative techniques that could be deployed under cover of a residual warrant."

For example, a residual warrant could be used to authorise the covert installation of root-kits or monitoring software on computer systems. This could then lead to problems with other people accessing the systems, corruption of evidence, and/or disruption of the work performed computer system.

The clauses relating to residual warrants are too broad and give government agencies too much scope. At Tech Liberty we oppose the idea of residual warrants and recommend that they are removed from the bill. If there is a need to periodically approve new surveillance methods and techniques it may be necessary to include provisions to allow that in a reworked bill.

Conclusion

The Search and Surveillance Bill is offensive to civil liberties in general and to technical civil liberties in particular. While some of the bill's provisions are already in law, the general tendency of the bill is to extend them and make them uniform across government agencies and regulatory bodies. There is no real argument in favour of this, no justification for the extension of powers, other than that it will make them consistent.

The power to search, to seize and to surveil are highly intrusive - they invade people's privacy, cause significant disruption in their lives, and are done on suspicion rather than on established fact. Even if we optimistically assume that government agencies wouldn't deliberately abuse the powers, we also have to acknowledge that incompetence and vindictiveness are problems that no human organisation can ever eliminate. Any extension of powers should be carefully considered and balanced against people's freedoms to go about their lives without government interference.

We support the principles that led to the Search and Surveillance Bill. We do think that these powers need to be used and administered consistently and it does make sense to implement reform. However, as part of that we should be taking the opportunity to rethink these powers, to do our best to reduce them to the required minimum to reduce the impact on our civil liberties. We believe that the bill needs to be substantially rethought and rewritten from this perspective.

Of course, this assumes that the person involved actually has the password. It's quite common for someone running a system to not be able to break the encryption used by other users to secure their data. Will the courts understand that? And even if they understand that, will they believe it?

The United Kingdom has passed a similar law and has now jailed someone for refusing to give up passwords to encrypted data. It won't be a surprise to anyone that the first victim of a law that was designed to protect the people from terrorists and other serious dangers turns out to be a science hobbyist who appears to be no threat to anyone. This case is at least relatively simple - there is no doubt that the man does have the passwords, but he has chosen to maintain his right to silence even though the law has tried to remove that right.

The same provision in New Zealand's Search and Surveillance Bill is in direct contravention of the right to remain silent. You normally have the right not to answer questions from the police, and the right to choose not to testify in your defence in court. This right came into English law in the late 1600s after the abuses of the Star Chamber.

I believe that this clause is wrong in principle and unenforceable in practice. As such, it should be removed from the Search and Surveillance Bill before it comes law.

Update

Stephen Bell notified me that New Zealand passed the Counter Terrorism Bill in 2003 which already gave the Police powers to compel people to reveal passwords (he wrote about it at the time).

This bill added clause 198b to the Summary Proceedings Act 1957. This gives the power to compel the owner or someone responsible for a computer system to provide access to the information on it. The language in the Search and Surveillance Bill is obviously taken from this clause.

Of course, in the Summary Proceedings Act (1957) only a judge, magistrate or court register could grant a search warrant, and they could only grant them to a Police officer. The Search and Surveillance Bill allows the Attorney General to appoint anyone as being able to issue a search warrant, and they can be issued to members of a very large number of organisations.

The Law Foundation has done a useful analysis (PDF) of the conflict between this power and the common law principle that people do not have to incriminate themselves. Their conclusion is that such a power should be limited to the most serious matters such as counter-terrorism.