Search Bill to get major 'plain language' revision

Submissions on Search and Surveillance to be re-opened

The Select Committee considering the Search and Surveillance Bill is embarking on an extensive redrafting of the bill to clarify its meaning in a number of areas that have led to public concern.

The redrafting exercise will include an opportunity for previously concerned members of the public to make fresh submissions on the bill, Justice and Electoral Select Committee chairperson Chester Borrows, however, still says a number of criticisms of the Bill are ill-informed. The rewrite should put “good people’s” minds at rest that the Bill confers very few new powers, he says.

Among its purposes the bill regularises powers to use digital technology for surveillance and powers to search and copy digital data stores.

Borrows, in a posting on the National Party blog site, slams “ignorant” criticisms of the bill, but goes on to say some “valid questions” have been raised. He cites this as a reason for the committee delaying its report back to Parliament, “until [the bill] can be written in plain language that removes the doubt of good people.”

The currently expected date for a report back is October 29.

Before this people who have already made submissions will get a chance to submit any further comments. To help them, they will be provided with a report on the legislation by the Justice Department, which will be completed sometime next month. The Law Commission has prepared a table showing what the law is now and what the new Bill as currently drafted will change. The new clearer bill is expected to be ready in July/August. All three documents will be sent to those who have previously filed submissions and they will have the opportunity to provide fresh comment.

On one specific computer-related point – the limited right to search remote computers through a network connection – Borrows emphasises that the bill only intends this in reference to computers connected to a computer that is already the subject of an on-premises search warrant. The wording of this provision will probably be a candidate for clarification, he says.

When bodies such as the Law Society and the Human Rights Commission make well argued objections to the bill’s provisions it shows that some rewriting is warranted, Borrows says. “The public have a right to know what the law is they have to live under.”

Borrows contends that the bill confers few extra powers and is chiefly concerned with “how existing powers are to be utilised when public servants carry out an enforcement role”. Law Commission deputy chairman Warren Young made a similar point at a public meeting in April on the bill (Computerworld, April 28).

Borrows says the bill would actually put new controls on powers that can currently be assumed by officials or even private citizens.

At present, he says, there would be nothing to stop a local council worker placing a camera and long range microphone in your neighbour’s tree, with that neighbour’s consent, and “aiming it at your house to record all that is said and done within. The law is not being broken, as there is no trespass when consent is given. This bill would restrict any activity like this, requiring a warrant. Most would think this is a good thing.”

Borrows’ blast against critics’ “ignorance” cites the misapprehension that the power given in the bill to demand passwords and encryption keys to otherwise inaccessible digital information is new. This clause, he points out, has been on the statute books for years.

Computerworld discussed it (October 23, 2003) when it was first passed as an anti-terrorism measure, subsequently inserted in the Summary Proceedings Act (Section 198B).

Another contentious part of the bill, the production order, requires a target of a search to surrender a named document. Opponents see this as an attack on the right to silence, but Borrows suggests, again, that this is a “good thing” [his words]. The alternative, he says, is for investigators to conduct a protracted search for the document, which may disrupt a business and bring confidential but irrelevant data to the eyes of investigators.

Critics of the bill continue to sling barbs. In response to Borrows’ reference to “plain language that removes the doubt of good people” “Marcus” on a “stop the bill” mailing list says: “So after that re-writing it'll only be bad people like us who still have a problem with it. I guess it confirms what some of us suspected - that the select committee members ('good people') couldn't understand what it was saying.”

Disclosure: Stephen Bell wrote a note to the Clerk of the Select Committee after the original submission deadline, pointing out legal sources has told him the remote computer search provision was not clear (Computerworld, October 27, 2009). This note has been listed as a submission.

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