article, surveillance

Surveillance: current law

The Search and Surveillance Bill is an attempt to rewrite New Zealand’s laws around search and surveillance.

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.

This article has not yet been updated to reflect the changes made when the Search & Surveillance Act became law.

Contents

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” without permission.

Note that licensed private investigators are not allowed to photograph, video or record people without the written consent of the target. This has been superseded by the Private Security Personnel and Private Investigators Act.

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.