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McBride, Tim --- "State surveillance -- the slippery slope" [1997] PrivLawPRpr 41; (1997) 4(4) Privacy Law & Policy Reporter 71

State surveillance — the slippery slope?

Recent examples of the emerging surveillance society in New Zealand

Tim McBride

Extracts from a paper presented by Tim McBride, President of the Auckland Council for Civil Liberties at the NZ Privacy Commissioner’s Privacy Issues Forum on 10 July 1997. In the rest of the paper (not included due to space limitations) Tim McBride argues that ‘Despite the enactment of the Privacy Act 1993 (NZ) and the work of Commissioner Slane and his dedicated staff, the reality is that threats to our privacy posed by State surveillance continue to occur and at an apparently increasing rate..’ and ‘In this society, low income people appear to have been the more visible victims.’ The examples of surveillance developments in the paper are extracted below.

Electronic interception of communications

The interception of communications has been an important component of State surveillance for a long period. In the past, it usually involved the interception of correspondence, together with manual eavesdropping. In more recent decades, it has included electronic interception of communications by the Security Intelligence Service (legitimised under the SIS Amendment Act 1977), and the Police (under Amendments to the Crimes Act 1961 and the Misuse of Drugs Act 1975). Now we have the Harassment and Criminal Associations Bill 1996 before Parliament which, if passed in its present form, will greatly expand police powers to intercept communications. The Privacy Commissioner has expressed a number of concerns about these proposed extensions to State surveillance powers. It remains to be seen to what extent those concerns, together with the concerns of many individuals and community groups (such as. the Auckland Council for Civil Liberties), will be taken into account before the Bill becomes law.

Police computer networks

When the government of the day introduced legislation in the mid-1970s to establish a national law enforcement information system with its headquarters in Wanganui (of all places!), there was fierce opposition. To assuage public concerns, the Office of Wanganui Computer Centre Privacy Commissioner (an officer accountable directly to Parliament, unlike the present Privacy Commissioner), was established. The law establishing the Centre contained many supposed safeguards to prevent abuse by those who had direct or indirect access to the system. Despite these safeguards, there were a number of reported incidents involving unauthorised access or disclosure. How many went undetected?

Now we are to have a much more sophisticated law enforcement information system — INCIS — complete with enchanced protection for the legitimate privacy interests of individuals. Time will tell whether the new safeguards will be truly effective.

Information matching

Ten years ago information matching — while not unheard of — was not seen as a major privacy issue in New Zealand. Today, it involves the matching of personal information on many hundreds of thousands of New Zealanders. Of course, a major reason in the early 1990s for the introduction of a package of legislation, which when enacted included the Privacy Act 1993, was to permit the State to legitimise its extensive information matching regimes involving many departments of State holding personal information on many New Zealanders. At no stage did I believe that the government of the day, or its predecessor, was truly committed to establishing an effective privacy regime. As a result of the passage of the Privacy Act and Amendments to laws such as the Customs Act, the Immigration Act and the Social Security Act, major State agencies holding what may be on occasions, quite sensitive personal information, now have legislative authority to match personal information in a wide range of circumstances. In his annual reports, the Privacy Commissioner has expressed concern on occasions as to aspects of the operation of those information matching procedures. To what extent have those concerns and recommendations been incorporated in changes to the matching regimes?

When is information matching justifiable? Desirable? Necessary? Information matching raises major concerns when it involves the comparison of personal information relating to identifiable individuals. Privacy advocates have described it as a ‘mass surveillance technique’, which can be error-prone on occasions and threatens established values, in particular, individual privacy.

DNA testing of suspects and offenders

When first proposed by the New Zealand Criminal Law Reform Committee, its Report on Bodily Examination and Samples as a Means of Identification (1978), the idea of DNA testing, of suspects at least, met with heavy resistance. For many years the Report, and its controversial recommendations, appeared to have disappeared from public consideration, never to be heard of again. However, in the late 1980s, National backbencher Warren Kyd, introduced a private member’s bill embodying many of the committee’s recommendations. For a number of years that Bill appeared to be dormant. It came as a surprise, to some at least, when the present Minister of Justice announced Government support for a DNA testing regime, together with a proposed national DNA databank.

The Criminal Investigations (Blood Samples) Bill attracted much concern when introduced. Privacy lawyers such as John Edwards highlighted concerns regarding the privacy of the individual. The Privacy Commissioner produced a comprehensive report outlining his concerns. Major concerns highlighted, included proposals to effectively ‘force’ suspects in certain circumstances to provide a DNA sample. The proposed national DNA databank was also highly controversial.

Despite the high level of concerns, the Criminal Investigations (Blood Samples) Act 1995 was enacted. Like all controversial State surveillance laws, it contains supposed safeguards (for example, if a suspect refuses a request to give a blood sample, the police are required to apply to a High Court judge for an order compelling the suspect to do so).

In his report, the Privacy Commissioner, while noting the supposed safeguards in the Bill, was still of the view that the ‘... exercise of force by the State to obtain a blood sample from an unwilling subject is such an extreme use of coercive powers that it is a step which should not be taken unless all reasonable alternatives have been explored and exhausted (para 3.2) ...’.

Similarly, with reference to the DNA databank proposal, privacy lawyer, John Edwards, was reported in the Dominion as saying that there was ‘... potential in the scheme to facilitate invasions of privacy on a massive scale. If we allow the police to collect DNA samples now, we are handing them the most personal and private information possible’. The concerns of civil libertarians, lawyers and others appear to have gone largely unheeded.

Even before the Act, the police used DNA tests in their hunt for the South Auckland serial rapist. Pacific Island and Maori men aged between 20 and 45 — the broad description of the rapist — were encouraged to volunteer blood samples for DNA testing. Some men in the area reported being under considerable pressure to ‘volunteer’ a blood sample. At the time the police were reported as saying that any samples taken would be destroyed, once they had been examined. However, police comments sometime later indicated that the samples had not been destroyed and might be placed on the DNA databank.

Earlier this year, it was reported that the police were taking blood samples from many prisoners for inclusion in the national DNA profile databank (NZ Herald, 20 May 1997). Apparently, prisoners convicted of murder, serious assaults, sex offences as well as burglaries, were being tested. The President of the Auckland Criminal Bar Association was reported as saying that the police testing constituted a ‘pretty wide casting of the net’ (Ibid).

Trespass notices

Concerns expressed by groups such as the Auckland Council for Civil Liberties, together with court action, led to changes in police policy regarding the issuing of trespass notices. The new police policy (1993/28), attempts to limit police involvement in the issuing of trespass notices on behalf of commercial enterprises. The guidelines note that commercial retailers may develop schemes to address the problem of customer theft from their premises by utilising the provisions of the Trespass Act 1980. However, the guidelines state clearly that ‘police will not take a leading role in instigating or implementing trespass schemes ...’. The policy states that ‘... in an appropriate cases official police photographs may be issued’ to retailers participating in such a scheme. However, such photographs and other personal information are to be ‘issued only where there is a crime prevention need...’. What constitutes a ‘crime prevention need’? Is there not a danger that the potentially widespread use of such notices could lead to people being classified as ‘outlaws’ in their own community?

Criminal profiling

Civil liberties groups and other concerned individuals have been concerned about the increasing incidence of the police practice of criminal profiling. The police, in their revised Criminal Profiling Guidelines (1993/26), state that such profiling involves ‘... publishing information (which may include photographs, personal details and relevant criminal activity of persistent criminals who are currently engaged in significant offending. It is (say the police) a useful crime prevention instrument and is part of the neighbourhood crime reduction strategy ...’.

There have been highly publicised examples of the publicising of criminal profiles by the police, not only in the larger metropolitan areas (for example, Christchurch, Wellington), but also in smaller communities, for example, Masterton and Whangaparaoa. In the last community mentioned, the person identified by means of a circular issued throughout the community by the police, was an 82 year old man. Speakers on behalf of the Auckland Council for Civil Liberties who challenged this use of police profiling were characterised in NZ Truth as ‘defenders of the rights of paedophiles’!

In June this year the Waikato Times reported that Cambridge police planned to ‘... release details of suspected fraudsters and petty criminals to Cambridge businesses to stop shop keepers being ripped off’ (June 13). The local constable was reported as saying that ‘information, including descriptions of possible criminals and their vehicles, would be released to be businesses following tip-offs that suspected offenders were in the country town’. The President of the Auckland Council for Civil Liberties was reported as stating that although he recognised that people were entitled to take ‘all reasonable steps in protecting themselves and their property as potential victims of crime’, at the same time the proposed form of police profiling was ‘part of a disturbing and ominous trend towards social control and surveillance of individuals’.

The police have a specific policy relating to the issuing of photographs of shop thieves (1993/27). These guidelines state that photographs of shop thieves may be distributed to premises at risk, but the photographs are not to contain police record numbers. More importantly, the guidelines state that photographs of shop thieves who do not have a recent conviction for shop theft shall not be distributed, unless there is compelling evidence that they are currently involved in ‘shop theft’. Finally, any photograph or poster relating to a supposedly active shop thief is to have a detailed statement attached to it. The effectiveness of the supposed ‘safeguards’ in these guidelines (as for any ‘guideline’ issued by any law enforcement agency), is difficult to determine.

Surveillance cameras in public places

These cameras are becoming increasingly widely used in public places throughout New Zealand. The police believe they can be a very effective crime prevention and detection tool. However, the effectiveness of these cameras has been questioned, for example, by Australian privacy expert and leading privacy administrator, Nigel Waters, at last year’s Privacy Issues Forum. He highlighted public concern at the increase in the use of street video surveillance and particular, the possibilities ‘for misuse of information collected by these means’. Some city councillors appear, however, to have become convinced that spending ratepayers’ money on surveillance cameras is well justified. In the words of one Wellington City Councillor (Councillor Weyburne), ‘... the bleeding hearts are just encouraging the criminal element and having a privacy commissioner is democracy gone mad, anyway’ (Evening Post, 12 May 1995).

The police guidelines on the use of surveillance cameras in public places, issued following a formal consultation process with the Privacy Commissioner, do have a number of safeguards. For example, video tapes from police surveillance cameras are to be erased after about 30 days if not required for evidential purposes.

Police video surveillance of suspected criminal activity in private places

This issue has recently been the subject of consideration by the Court of Appeal — R v F (CA 19/97; 20 March 1997). In that case there had been considerable police video surveillance over a long period of the area at the rear of a house used by a group of people suspected (with good reason, it turned out), of involvement in drug trafficking. [Why do so many key Bill of Rights challenges involve suspected drug dealers and drunk drivers?]

In the Court of Appeal it was argued that the extensive video surveillance was in breach of s 21 of the New Zealand Bill of Rights Act 1990 (that is, the right to be secure against unreasonable search and seizure whether of the person, correspondence, or otherwise. Section 21 is, regrettably, the closest our modest Bill of Rights comes to recognising a right to privacy.

In earlier decisions, the Court of Appeal had recognised that ‘... non-trespassing investigative techniques utilising modern technologies such as electronic surveillance and long distance surveillance and long distance photography and noise detection may give rise to a host of problems ...’ (R v Grayson and Taylor (CA 255 and 256/96; 28 November 1996)). However, in R v F, the Court of Appeal determined that the conduct of the police had been ‘reasonable’ and therefore it was not necessary for it to determine ‘whether or not there has been search or seizure’ (p 9). ‘... Observations from remote positions involving no entry on property or premises, whether technologically enhanced or not, present particularly difficult issues and we prefer to have the advantage of considering the factual circumstances of more cases before attempting any definitive identification of the elements of search and seizure ...’ (pp 12-13).

The question of when police video surveillance of private places may contravene s 21 of the Bill of Rights therefore remains open. Given the increasing police use of video technology for these purposes, it is regrettable that the Court of Appeal did not see fit to formulate ‘guidelines’ at least, indicating the permissible limits on police video surveillance of private places.

Random stopping of motorists to ‘trap fine dodgers’

This expansion of random stopping by police (with court bailiffs present), has been condemned as a ‘classic thin end of the wedge manoeuvre. Give them an inch, and they will take another and another’ (Auckland lawyer, Stuart Cummings, reported in NZ Herald, 24 June 1997). It is pleasing that Privacy Commissioner Slane has chosen to speak out on this new development in State surveillance. ‘It illustrates the danger that always occurs whenever there is an incursion [on privacy] for apparently good reasons. The danger was that the intrusion on people’s rights would be used to carry out other ‘good purposes’ (NZ Herald, 25 June 1997) The Herald editorial of that day sums it up rather well — ‘Fines check out of line’.

Proposed photographs on drivers’ licences

It is inevitable that we will have photographs on drivers’ licences in the near future. (When I lived in California 20 years ago it way my ‘internal passport’ for just about everything! I did not dare ‘leave home without it’!) Today the technology is vastly different. Photographs can be digitally enchanced — altered, scanned, recorded on yet another State databank. We need to know exactly how any system of photographs on drivers’ licences will operate.

The activities of security intelligence agencies

The ‘shadowy activities’ of the SIS and related agencies have long been a concern of civil libertarians and others. Many of these activities were described in quite remarkable detail in Nicky Hager’s book, Secret Power, published in 1996. When the Intelligence and Security Agencies Bill 1995 was introduced, the Privacy Commissioner welcomed ‘the creation of additional new mechanisms to oversee and review the actions of intelligence and security agencies in New Zealand’. These included, for example, the new forms of Parliamentary accountability. Along with others, the Commissioner expressed concern at the expanded definition of ‘security’ which was defined in the Bill as meaning, among other things, ‘the ensuring of New Zealand’s international well-being or economic well-being’. This definition was subsequently amended following select committee scrutiny. However, the Commissioner’s proposals for extending key information privacy principles contained in the Privacy Act 1993 to intelligence organisations were not incorporated.

Speed cameras

The effectiveness of speed cameras, certainly as a revenue generating mechanism, cannot be doubted. Challenges to their accuracy appear to have been singularly unsuccessful. It is hard to measure public acceptance of them. It was interesting when recently, the police unveiled a new high tech speed camera with the ability to ‘lock on’ speeding vehicles, to see the strength of negative public comment, at least as reported on the ‘Holmes’ television show. Perhaps those who responded have been among the many thousands of New Zealanders who have paid hundreds, and in some cases thousands, of dollars after being detected on speed cameras.

Those of us characterised by the Privacy Commissioner as ‘doomsayers’ because we are forever predicting ‘an Orwellian type surveillance society’ (‘Privacy and Technology’, address to the LAWASIA Conference, Adelaide, 29 March 1995), being the ‘merchants of gloom and doom’ that we are, also worry about how, much State surveillance is going on that we are simply unaware of. It appears we are not alone in our concerns. If the The Times of London report on ‘how police learn to operate on margins of the law’ has any application here, perhaps none of us can afford to become complacent.

According to The Times, in the United Kingdom:

... police currently undergo courses teaching them how to break in and plant bugs in homes or offices, even though they lack the statutory power to do so.

The courses are part of a strategy developed by senior detectives in the game of cat and mouse with some of the most powerful criminals in the country. Targets have included armed robbers, ... gangsters and drug traffickers ....

(The officers) are taught how to pick locks, open windows, by-pass security systems and plant bugs discreetly. They are also taught to attach tracking devices and microphones to cars. They operate on the margins on the law, and the courses emphasise that they must enter and leave undetected ....

The bugs are often built by police technicians and are now said to be as accurate and as miniaturised as the equipment used by the Security Service ....

No team has yet been discovered carrying out a break in, but tracking devices have been found on cars. The criminals usually hand them over to their solicitors ... (6 May 1996).

Of course, our response may be that such ‘dirty tricks’ do not happen here. I doubt any members of this audience will argue too strongly that there are not occasions in New Zealand when our law enforcement agencies ‘operate on the margins of the law’!

Tim McBride, Senior Lecturer in Law, University of Auckland.

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