Stewart, Blair --- "Heightened State Surveillance in New Zealand, post-'9/11' - Privacy under Threat" [2005] PrivLawPRpr 9; (2005) 11(6) Privacy Law and Policy Reporter 158

• Heightened State Surveillance In New Zealand, Post-‘9/11’-Privacy Under Threat

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Heightened State Surveillance in New Zealand, post-‘9/11’ - Privacy under Threat

Tim McBride

An earlier version of this paper was given as an address at a public forum - Challenges to Civil Liberties in the ‘War on Terrorism’ - held in Auckland on 21 June 2004 – it has been expanded and updated for PLPR.

The way some of our political leaders and commentators talk, one could easily believe that there was a time before the tragic events in New York and Washington in September 2001, and a markedly different time since then. “The world changed”, they say. “The rules changed. Whether we like it or not, we are now at war” - combating the so-called War on Terrorism, that is. “The innocent world we once knew and enjoyed is no more.”

What has been the impact of our government’s response to the tragic events of ‘9/11’, on our privacy and civil liberties? Are we any safer? “Of course you are”, our political masters say. “You can all rest more secure. We’ve implemented new policies. We’ve passed a mass of new laws to protect you. To keep you safe from those who might threaten your way of life - whatever they’re ideological agenda may be.”

So what is the downside of this veritable outpouring of post ‘9/11’ law and policy? Is there one? Or is it just the usual conspiracy theorists, and their even more ill informed hangers-on, failing to see the clear benefits of greatly enhanced state surveillance? Opinions differ. I’m one who views many of these developments with increasing anxiety. Many Kiwis appear to share my concerns[1] .

Of course, what has been happening here is not unique. Our traditional allies - the UK, Australia, Canada, and not forgetting, of course, the US, have all been doing similar things. Many of the key elements of post ‘9/11’ surveillance laws are so similar, that one almost feels the presence of an ‘invisible hand’ from well within the State Department in Washington. It reminds one of the days at the height of the British Empire, when the laws for the colonies were all drafted in Whitehall.

The latest Amnesty International Annual Report puts it well. “In the name of the ‘war on terror’, governments are eroding human rights principles, standards and values.... Since 11 September 2001, many have adopted draconian new ‘anti-terrorism’ measures.... Some governments have introduced measures that break with their best judicial traditions....”

“Look, we had no choice”, Minister of Justice (and principal legislative ‘cheerleader), Phil Goff, might say. “We were just doing what the UN required us to do.” Well, that’s true in part. There were, for example, UN Security Council Resolutions (eg, No 1373 - agreed to within a few days of ‘9/11’), that New Zealand was duty-bound to implement. However, even the Minister’s flagship new law - the Terrorism Suppression Act of 2002 - was described by International Law scholar, Treasa Dunworth, of the Auckland University, as “a knee-jerk response to terrorism”[2] .

Leading lights in the international privacy community have expressed deep reservations about a number of the post ‘9/11’ legislative developments. Recently, the UK’s Information Commissioner (the equivalent of our Privacy Commissioner), warned that the UK might be ‘sleep walking’ towards ‘an East German-style surveillance society’[3] . Earlier, the Privacy Commissioner for the Australian state of Victoria, Paul Chadwick, had worried openly that “a people surveilled become a people paranoid”[4] .

Of course, we need the appropriate mix of policy and legislative responses to the possible threat of terrorism. That’s nothing new. In 1987, NZ finally repealed the draconian Public Safety Conservation Act 1932 - enacted at the height of unrest during the Great Depression - and replaced it with the International Terrorism (Emergency Powers) Act. Just a few years before the spectre of international terrorism had finally arrived at our doorstep when French government agents blew up the Greenpeace vessel Rainbow Warrior in Auckland harbour, killing a Portuguese photographer.

In a remarkably insightful observation way back in 1991, our Law Commission got right to the nub of the problem. “... The danger is that States will over-react.... It is possible to imagine government officials doing more to destroy democracy in the name of counter-terrorism than is presently likely to be achieved by the terrorists themselves.”[5] .

Too true. Have our parliamentarians - who, with a few honourable exceptions, fell over themselves in an almost jingoistic desire to show just how tough they were prepared to be in combating the ‘scourge of terrorism’ - over-reacted to the perceived threat to our national interests? Did they end up enacting draconian laws which erode our internationally respected human rights principles, standards and values?

But before trying to make some assessment of how NZ rates, what are some of the recurring concerns of the privacy community internationally? For many of them, the political landscape has shifted significantly. “... The mere threat of terrorism has changed political discourse....”[6]

All members of the ‘tight five’ (NZ and its traditional allies, that is), have “increased the ability of law enforcement and national security agencies to perform interception of communications, and transformed the powers of search and seizure, (together with) an increase in the type of data that can be accessed”[7] .

New technologies (eg, face-recognition technology) and communication infrastructures have been developed and implemented, frequently without any privacy impact assessment being undertaken. Privacy Laws - what the Europeans call data protection laws - have been weakened, and their commissioners sidelined. Evermore data sharing - what we in NZ call information matching - is taking place. So too, is much-greater individual profiling, increasingly involving sensitive biometric indicators.

In Australia there were major legislative amendments in 2002 and 2003, giving ASIO (the Australian equivalent of our Secret Intelligence Service (SIS)), much greater powers. There were also major amendments introduced earlier this year to the Australian Telecommunications (Interception) Act of 1979. Amendments to the Australian Passports Act, providing for passports containing facial biometric features, have recently been made.

In Canada, a highly controversial Anti-Terrorism Act was passed in December 2001, followed by the Public Safety Act earlier this year. The latter Act amends over 20 existing federal laws, together with provision for a new law that enables Canada to implement the Biological and Toxin Weapons Convention. Like Australia, Canada has implemented a sophisticated biometric passport regime.

The UK has its Anti-Terrorism, Crime and Security Act, passed in December 2001. It supplemented the already broad-ranging Regulation of Investigatory Powers Act 2000. Within the next few years, the UK will have a comprehensive national biometric ID in operation. The Blair Government wants the scheme pushed through Parliament before the next General Election - now tipped to be as early as May 2005.

In the United States, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (aka the USA PATRIOT Act) - the law enacted during the hysteria following ‘9/11’ - gives massive increases in powers and functions to many federal agencies. Long-established privacy protections either disappeared, or were severely watered-down.

The PATRIOT Act was followed by the Cyber Security Enhancement Act 2002. Privacy protections against agency surveillance were further weakened. Then, there is the Department of Homeland Security, with its distinctly Orwellian overtones. It combined over 20 federal agencies into one, with dramatically increased law enforcement and information matching powers.

More recent US initiatives include proposals to create a National ID; the United States Visitor and Immigrant Status Indicator Technology system (US VISIT); and a series of proposals for increasingly sophisticated and intrusive screening of incoming passengers. Our government is in the process of implementing a similar pre-boarding system.

In December 2004, Congress passed a 563-page bill overhauling US intelligence-gathering law. The changes - the most wide-ranging for over 50 years - include sweeping provisions that allow agencies to wiretap “lone wolf” terrorists. US drivers’ licences are now to be required to contain much more detailed and sensitive personal information.

So, what about New Zealand? Our legislators - keen to retain their reputation as the ‘fastest lawmakers in the West’ - have been busily passing new surveillance laws. Dissenting parliamentary voices have been few and far between. Keith Locke of the Greens, and Matt Robson of the Progressives spring to mind. Others, who one might have expected to be troubled by some of these developments, have been very largely silent.

Interestingly, the origins of the Terrorism Suppression Act 2002 predate ‘9/11’. The original bill - the Terrorism (Bombings and Financing) Bill - had been introduced into Parliament in April 2001. It attracted little public attention. Despite an invitation, no public submissions were received. So much for public interest in fighting terrorism in the balmy days before 9/11.

Following those tragic events, major proposed amendments were introduced by way of a Supplementary Order Paper. Following public pressure, submissions were invited. Over 140 were received.

Most opposed the proposed changes. The potential impact on fundamental human rights was a major concern. Instead of protecting New Zealanders from terrorist threats or attacks, it was argued that the proposed law might undermine the country’s democratic processes and erode its fundamental rights and freedoms.

The bill was seen by some as having a major chilling effect on dissent, or, even more troubling, as being one giant step towards a police state. Despite the concerns, the bill became law with few significant changes to it.

The Terrorism Suppression Act is primarily concerned with criminalising a number of acts relating to terrorism and facilitating the designation of individuals as terrorists. In the area of surveillance, it gives additional responsibilities to intelligence agencies (eg, the SIS, the GCSB), and to the Police. There are also new surveillance obligations on banks, financial organisations and lawyers.

The Telecommunications (Interception Capability) Act 2003 does exactly what its name suggests - it requires telecommunications to be capable of interception by surveillance agencies. New obligations are placed on telecommunications network operators (the TELCOs). This includes Internet Service Providers (ISPs) and phone companies. They must ensure that their services and networks have interception capabilities.

One of the surveillance agencies in question is the Government Communications Security Bureau (the GCSB). Its primary focus is the collection and reporting of foreign signals intelligence. The GCSB was formally established in 1977 - although it had been around in various guises since at least the late 1930s.

However, the GCSB was not put on a statutory footing as a department of State until 2003. Before then it had operated by way of Executive arrangements - initially put in place by Prime Minister, Rob Muldoon - which both established the GCSB and authorised its shadowy activities. By way of comparison, the law covering the SIS was passed way back in 1969.

While the Privacy Commissioner, the Human Rights Commission, and the Law Society all favoured formalising the GCSB’s role and functions, by way of statute, others were not convinced. The Green Party was completely opposed.

To them, ‘legalising’ the GCSB was a major threat to individual privacy. Rather than protecting New Zealand, the Greens argued, the GCSB actually undermined the independence of our foreign policy. Why? “Because the agency was a subordinate player in the ‘ECHELON system’ which (was) controlled by NSA and therefore primarily served US interests”.

Not surprisingly, the long-established NGO, the Anti-Bases Campaign, also opposed the legislation. They wanted all the GCSB’s ties to overseas agencies terminated. To them it was outrageous that the agency’s methods were “closed secrets except to the exclusive brethren within the international intelligence community”.

Despite the protests, the Government Communications Security Bureau Act 2003 was passed. The agency’s over-riding objective is said to be “to contribute to national security by providing foreign intelligence”. It also advises the Executive branch (ie, the government of the day) on the “maintenance and enhancement of the security” of its communications.

The key functions of the GCSB are all more or less associated directly with surveillance. This includes deciphering, translating, examining and analysing foreign communications.

While the GCSB is given very broad powers to spy on foreigners, it is not permitted to spy on New Zealanders (ie, citizens and permanent residents). At least, that’s what the 2003 law says - in black and white. The law is clear that the focus is “foreign communications” emanating from a “foreign organisation”.

Despite this, opponents remain unconvinced of the effectiveness of controls on the GCSB. Of particular concern is the agency’s ability to intercept the communications of international organisations in which Kiwis may be involved.

While noting these concerns, the select committee considering the GCSB Bill was content to accept the advice of officials. Even a submission from the Human Rights Commission, that the new law should expressly state that “human rights defenders will not have their communications intercepted”, received the thumbs down.

Along with the SIS, the GCSB is subject to oversight by the Inspector-General of Intelligence and Security, and Parliament’s Intelligence and Security Committee. Despite the existence of these accountability mechanisms, many doubt their real effectiveness.

The performance of former Inspector-General, retired High Court judge, Laurie Greig - forced to resign following thoroughly inappropriate remarks in the (NZ) Listener - did not help to inspire confidence in the oversight regime.[8] Also troubling was the recent revelation that the parliamentary committee had met for less than two hours during the past year.

While the focus of the Terrorism Suppression Act 2002 was terrorist bombing and financing, the Counter-Terrorism Bill, introduced in 2003, had a broader mandate. The object was said to be to ensure that there were comprehensive measures in place to deal with the whole spectrum of “terrorist offending”. The Bill was introduced following a whole of government review by key agencies to identify “potential gaps” in both investigative powers and offence provisions that “might be exploited by terrorists”.

In the area of enhanced surveillance and its potential impact on individual privacy, the Counter-Terrorism Bill aimed to do three key things. First, to expand considerably police powers to “lawfully intercept” private communications (where terrorist offences were suspected). Secondly, to greatly extend the “lawful use” of tracking devices (which had formerly been limited to certain serious drug offences). And thirdly, to create a legal duty on individuals to assist the police (when they have a warrant), to access computer data.

Previously, while it had been an offence to obstruct the police in the execution of a search warrant, no person was under a positive legal obligation to assist the police. However, there were said to be safeguards. The assistance required by the police had to be both reasonable and necessary. As well, assistance meant access only. A person could not be required to locate particular material for the police, or provide it in a particular form.

The Privacy Commissioner considered the use of electronic devices “to secretly track the movement of individuals” to be especially worrying. It was likely to have a “significant effect on privacy”.

“Freedom from surveillance is such an ordinary expectation that one hardly gives a thought to it. However, to become aware that one is, or has been, under surveillance is a devastating blow to a sense of privacy, dignity, and autonomy.”[9]

Despite his strong words, the Commissioner indicated broad support for the new tracking devices regime. The fact that judicial authorisation was needed for a tracking warrant was seen as an important safeguard. A judge was specifically required to consider privacy when considering a warrant application.

Only twenty-four submissions were received on the Counter-Terrorism Bill. Most were hostile to key aspects of it. Submitters worried about the impact on fundamental rights and freedoms. In response, the officials relied on advice from Crown Law that there was nothing in the bill that was “inconsistent with the Bill of Rights”. Even the proposed tracking regime was seen as a “justified limit” on the right to be secure from unreasonable search and seizure.

Opponents begged to differ. To them it was “misleading and anti-democratic” to use the Counter-Terrorism Bill as a “vehicle for general criminal law amendments”. However, the officials were content to adopt Professor Matthew Palmer’s view that there were “not good policy grounds to justify the development of a separate, parallel regime of counter-terrorism law”.

Instead, “factors unduly inhibiting to effective law enforcement should be amended in general”. When the Wellington-based NZ Council for Civil Liberties indicated support for Palmer’s position, but considered the scope of the Bill “too wide”, officials gleefully pointed out “a fundamental inconsistency”. This does not necessarily follow. Extensions to existing laws that extend state powers, or create new offences, should always require a compelling justification.

Of major concern to many submitters was the likely impact of the new provisions on the right to protest - one of our fundamental human rights. Could the definition of ‘terrorist act’ be used to suppress legitimate political activity? Could major industrial disputes, anti -globalisation protests, anti-nuclear protests, mass civil disobedience, direct action, or even Maori Treaty activism come within it?

Officials considered these concerns to be without merit. There was no new restriction on “the right to protest lawfully”. People engaging in “any protest, advocacy, or dissent”, or in “any strike, lock out, or other industrial action” were expressly protected. However, “industrial or other protest action” going to “extreme lengths” (that is, “danger to human life, serious risk to the health and safety of a population, or devastation of the national economy”) was not protected.

Many remain unconvinced. The chilling effect of these new provisions, when added to the plethora of existing laws already limiting the exercise of our fundamental rights and freedoms, should not be under-estimated.

Despite the concerns, the Counter-Terrorism Bill passed into law. Not that you will find it on the statute books under that title. Instead, it became law as amendments to existing laws including the Crimes Act and the Summary Proceedings Act - together with changes to the law covering the SIS and the Terrorism Suppression Act of 2002. [Yet more amendments to this Act were introduced into Parliament in December 2004 - The Terrorism Suppression Amendment Bill (No 2) 2004.]

Way back in 1999, a package of amendments had been introduced into Parliament to amend the Crimes Act 1961 - following years of investigation by the Crimes Consultative Committee, the Law Commission, and the Ministry of Justice. The proposed changes in the Crimes Amendment Bill (No 6) 1999 - many long overdue - were non-controversial.

However, in November 2000, cabinet minister, Paul Swain, dropped a bombshell. He introduced into Parliament, Supplementary Order Paper No 85. It was promptly dubbed the “cyber snooping bill”, by critics. Why? Because, in their view at least, the SOP significantly increased state surveillance powers, by exempting major state agencies from the new ‘computer hacking’ offences contained in the 1999 Bill.

Old-style public meetings were hastily organised, at which much passion and rhetoric was evident. The cyber-world fraternity saw itself under threat. One fears to think how many angry e-mails communications minister Swain received. All this occurred in those ‘days of innocence’ before ‘9/11’.

The Ministry of Justice, in its report to the Law & Order Select Committee, clearly wondered what all the fuss was about. The Bill (with its SOP), “strengthened privacy protection”. It did this by “criminalising some activity that is not currently criminal (such as intercepting non-oral private communications and accessing computers without authority)”. In other words, hacking.

Yes, there were to be exemptions for certain state agencies - the police, the SIS, and the GCSB - but these exemptions related “either to existing powers or to activities that these agencies could presently undertake without specific authorisation”. Moreover, the exemptions were “hedged with appropriate safeguards”.

Given the technological ‘carnage’ computer hackers and virus writers can cause, there was unanimity among submitters in support of the offences aimed at curtailing their activities. The proposed exemptions for state agencies were another matter. The Alliance Party and the Greens were opposed. So too was the Council of Trade Unions. Prominent NGOs, including the Council for Civil Liberties, the Peace Foundation, and the Churches’ Agency on Social Issues were also opposed.

Qualified support for the exemptions was expressed by the Privacy Commissioner, the Law Commission, and by the Law Society. The Commissioner’s and the Society’s support, however, was conditional on the GCSB being placed on a statutory footing. This occurred when the GCSB Act 2003 became law.

Despite the opposition in some quarters to the state agency exemptions from the hacking offences, the Crimes Amendment Act 2003 was passed - with the exemptions largely intact. The Law & Order Committee had reported back to Parliament in support of the exemptions, provided largely cosmetic changes were made to increase ‘the level of transparency and safeguards’.

In some areas the new Act does increase the level of privacy protection - at least on paper. In the past the unauthorised interception of private communications by third parties had applied only to private oral communications. Under the new law, the offence - which carries a possible jail term - applies to any form of private communication. Previously, the law applied only to listening devices. Now it applies to any form of ‘interception device’.

The Border Security Bill 2003, not surprisingly, is intended to ‘enhance border security’. When it becomes law in 2005, commercial carriers will be required to carry out sophisticated pre-boarding checks on anyone intending to travel to NZ. These checks may trigger an electronic alert.

The Bill’s proponents emphasise that the “terrorist threat is very real”. Given this, there is a need “for the earliest possible access to information regarding people who may pose a threat.” And, it’s not all bad news. Benefits to passengers are said to include a “reduction in the inconvenience of border processes” and a “more secure travel environment”. As well, the new law “should reduce identity fraud”, an increasingly serious problem.

Not all MPs were convinced that the Bill was an appropriate legislative response. Green MP, Keith Locke, highlighted the impact on the fundamental human right - freedom of movement, or as he termed it , ‘the right to travel’. Of particular concern was the lack of “effective legal redress if a person (was) prevented from getting on a plane”. There was no obligation on the authorities “to give a reason, nor (was) there any right of appeal to any court, tribunal, the Minister of Immigration, or any other body or person”.

When the Bill becomes law, it will allow what is termed the “progressive adoption of current proposed technology (ie, the Advanced Passenger Processing System).” New technologies performing the same function will be possible without legislative amendment (i.e. without any parliamentary scrutiny). This worried a number of the 21 organisations and individuals that bothered to make submissions on the Bill.

The Maritime Security Act 2004 is intended to establish a framework that “will reduce the risk of security incidents affecting merchant ships or port facilities”. It also enables NZ to fulfil its obligations under a post-‘9/11’ international agreement for maritime security (ie, the International Code for the Security of Ships and Port Facilities 2002).

Passage of the Act was said to be necessary to ensure that NZ “continues to be part of international efforts to combat terrorism”. The new law, it was argued, would “reduce the risk of a terrorist incident involving New Zealand’s ports and ships serving its international waters”.

Only 13 submissions were received on the Maritime Security Bill. The Government Administration Committee heard 8 of these. The Committee took less than an hour and a half to hear this ‘evidence’. A further two and a half hours was spent by the Committee giving further ‘consideration’ to issues raised by the Bill (eg, the advice received from the Ministry of Transport and the Maritime Safety Authority).

Greenpeace, well-known for its exploits with vessels believed to be carrying nuclear materials, was troubled by the impact of aspects of the Bill on civil liberties, in particular, the right to protest. So too was the Council of Trade Unions, the Maritime Union of New Zealand, and the Rail, Maritime and Transport Union.

All considered that the definition of ‘security incident’ was too broad. It was “not appropriate that activities such as picketing, striking and protesting at New Zealand ports and against vessels at those ports should be potentially curtailed by legislation designed to prevent international terrorism”.

In December 2003 Minister of Justice, Phil Goff, announced that the passage of all the above laws would mean that New Zealand was now in full compliance with all twelve United Nations Conventions on Terrorism (Press release, 23 December 2003). Yet more laws continued to be introduced in 2004, and others have been foreshadowed for likely unveiling in 2005.

The Identity (Citizenship and Travel Documents) Bill 2004 raised major substantive and procedural concerns. The Bill’s proponents argued that it was important to have appropriate legislation to implement international Conventions relating to the suppression of terrorism and people smuggling.

However, critics argued that aspects of the Bill went way beyond this justification. A key concern was the new power given to the Minister of Immigration to cancel a passport, or other official travel documents, on national security grounds. While there would be a right of appeal to the courts, appellants would bear the onus of proof.

Even more troubling, the cancellation could have been made on the basis of classified information (eg, from foreign intelligence sources). Appellants could be denied access to this information. Instead, they would be limited to a summary only, which did not disclose sensitive information.

These changes to the Passports Act 1992 were seen by human rights groups as ominously similar to controversial procedures inserted in the 1987 Immigration Act in 1999 (ie, Part IVA). Those Kafkaesque procedures had been found wanting by the courts during the legal challenges mounted by detained Algerian refugee, Ahmed Zaoui.

“Until we can be sure that information gathered by our intelligence service is sufficient and appropriate, it should not be used as the basis for revoking or cancelling a passport.” The Ministry of Justice disagreed. While acknowledging that there were “prima facie issues of inconsistency with the Bill of Rights”, it argued that the proposed measures were “a justified limitation”.

The Identity Bill completed most of its parliamentary stages in December 2004. The changes - in the form of Amendments to the Immigration Act 1987 and the Passports Act 1992 - take effect in 2005.

In their desire to insulate New Zealand from the threat of terrorism - real or imagined - our lawmakers appear to have given only passing consideration to the importance of individual privacy as a value underpinning human dignity, and other key values such as freedom of association and freedom of speech.

Freedom from unwanted surveillance is a key component of individual privacy. Those who wish to diminish what little remains of the individual’s fundamental human right to privacy should be required to come up with a compelling justification for doing so. They bear the burden of proof.

The former UN High Commissioner for Human Rights, Mary Robinson, has emphasised the importance of “the principles of necessity and proportionality” in determining the “balance between the enjoyment of freedoms and the legitimate concerns for national security”. In her view, any “measures must be appropriate and least intrusive to achieve the objective”. Using this yardstick, key aspects of NZ’s post-‘9/11’ legislative outpouring can be seen as a disproportionately severe response.

As UN Secretary-General, Kofi Annan, reminds us, “there is no trade-off between effective action against terrorism and the protection of human rights.... On the contrary,... human rights, along with democracy and social justice, are ones of the best prophylactics against terrorism”[10] .

Similar sentiments were expressed, even more forcefully, in a landmark December 2004 decision of the House of Lords. The Law Lords ruled, by a majority of 8-1, that the Home Secretary’s decision to suspend the UK Human Rights Act 1998 and imprison foreign terror suspects without charge or trial, was “a real threat to the life of the nation”[11] .

In the words of Lord Hoffman, “the real threat... comes not from terrorism, but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory...”. Similar strongly-worded sentiments were reportedly expressed by Justice Kirby of the High Court of Australia at a recent conference.[12]

A reading of the various ministry and departmental analyses of submissions and other documents gives one the distinct impression that for some officials at least, privacy is little more than something on a checklist - to be quickly ticked-off, so that more important matters can be considered. The parliamentary debates reflect a similar view.

During 2005’s General Election, don’t expect privacy to get more than a mention. The government will be highlighting all it has done in the past three years to keep us safe. The right-of-centre parties will be promoting more draconian proposals, which threaten to move us even closer to a total surveillance society.

“No bad thing”, you may say. “If you’ve got nothing to hide, you’ve got nothinto worry about” (as former PM Rob Muldoon said, way back in 1977). In fact, Communications Minister, Paul Swain, expressed remarkably similar sentiments in justifying the ‘cyber-snooping bill’.

The truth is (as the former Canadian Privacy Commissioner reminds us), is that we all do have something to hide, not because it is criminal or even shameful, but simply because it is private.... The right not to known against our will, indeed the right to be anonymous except when we choose to identify ourselves is at the very core of human dignity, autonomy, and freedom.

Future generations of New Zealanders may well ask - “How come these people gave up their privacy so willingly?”

On the other hand, they may regard our quest for privacy as ‘quaint’ and ‘old-fashioned’ - like some other aspects of the rapidly disappearing Kiwi way of life. Perhaps, when, as individuals, some of these future Kiwis cease to be ‘beneficiaries’ of the surveillance society and instead become its ‘victims’ - as happened to Will Smith in the movie Enemy of the State - their views will change. Only then it will be too late.

Tim McBride is a privacy advocate, author, commentator, and university lecturer

[e-mail]

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[1] See, for example, Gordon Campbell, ‘Eternal Vigilance’, (NZ) Listener, 17 November 2001

[2] [2002] New Zealand Law Review 274

[3] Guardian Weekly, 20 August 2004

[4] After 11 September”, 26 November 2001

[5] Law Commission, Final Report on Emergencies

[6] EPIC and Privacy International, Privacy and Human Rights 2004 p.20

[7] Ibid p. 23

[8] See “Watching the Watchers”, (NZ) Listener 29 November 2003

[9] Privacy Commissioner, Report to Minister of Justice, 7 Feb 2003, para 3.2

[10] See The Guardian Weekly, 18-25 March 2005

[11] A and others v Secretary of State [2004] UKHL 56

[12] Australian Law Reform Commission ‘closed’ conference on Terrorism and the Rule of Law, Canberra, 21 March 2005.