Tech forces surveillance rethink

Police could be granted new search and surveillance powers in a new bill heading towards its first reading in Parliament.

The Search and Surveillance Powers Bill was introduced by the Labour government in September last year. The bill's first reading stage is now in the upper ranking of Parliament's Order Paper.

The bill's opening policy statement says search and surveillance powers have developed piecemeal in various pieces of legislation.

"There are inconsistencies in the way search powers are framed and how they may be exercised, and legislation does not always meet law enforcement needs or adequately provide protection to those who may be subject to search."

There is uncertainty as to the nature or extent of some existing search powers and procedures, according to the statement.

As a result of developments in technology, there is a need to restore balance between the facilities available to law enforcement agencies and offenders, the preamble states. "Criminals have increasingly been able to use computers and other electronic devices to commit or facilitate illegal activity. The bill provides for the appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity."

The bill seeks to clarify the legality of using surveillance devices, including covertly installed cameras on private premises. This would normally require the authority of a specific warrant, but the power to conduct surveillance without a warrant is granted in cases of urgent need, where law enforcement agents believe a serious offence is about to be committed or life endangered, and it is not practical to obtain a warrant in time for the information gathered to be useful.

Outside these provisions, there is a blanket power to use a visual surveillance device to observe and record activity for up to three hours a day and a maximum of eight hours in total.

The bill also makes extensive provision for computer searches, mostly unambiguously legalising acts such as the removal of digital material for evidence, which law enforcement agents have been routinely doing for many years.

In a new development, the bill provides for a warrant to search off-site storage that is accessible electronically, but not physically, from the premises named in the search warrant.

A report by the Law Commission last year, on which the bill draws extensively, recommended such a provision, however, it said remote access should "only be permitted ... if remote access from the computer [on the premises] were lawful if conducted by the computer's authorised user."

In other words, if the suspect has secreted data by hacking illegally into a remote site, the investigators cannot follow.

However, there is no explicit reference to this distinction in the current bill.

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