Civil liberties lawyer Michael Bott thinks the crack opened in access to personal computer activities by the Copyright (Infringing File Sharing) Bill might be the first of several consensual arrangements between ISPs and agents of law enforcement to allow access to such data at the ISP level without the subject being aware a search has been conducted.
Such access could erode the "no hacking" reassurance contained in the Justice and Electoral Select Committee's interim report on the Search and Surveillance Bill, Bott suggests.
What he calls "the secret deal with big business" over the file-sharing bill establishes a process that could be used for other purposes but, more importantly, puts in place "a culture of acceptance" of covert surveillance on the basis of inconclusive evidence, he says.
If police or another agency search your premises physically in your absence, "they have to leave a copy of the warrant on your mantelpiece", he says. An equivalent provision should apply to an electronic search; the exercise of a search right should be "technologically neutral".
Bott is still concerned about the degree of surveillance permitted without a warrant under the bill -- including surveillance through covertly installed video or audio devices for up to three days. Police could use the warrantless provisions to embark on "fishing expeditions" until they find enough evidence of a particular subject's suspicious activities to obtain a warrant, he says.
The select committee's latest suggested amendments require an Order in Council before those powers can be extended to agencies other than the police -- but this could become "just a rubber stamp", Bott fears.
If there is reasonable suspicion of an offence, the body concerned should report it, with their evidence, to the police, who would obtain a warrant, he says.
In summary, the recommended changes are largely a matter of presenting an acceptable face rather than substantive reduction of powers over the original version of the bill, says Bott. "The wolf has now donned sheepskin; but it's still a wolf underneath."
The select committee is well-intentioned and "doing its best", he says; "but they could do better."