Law Commission downplays fears of secret searches

Search and Surveillance bill goes under scrutiny

Online search powers included in a new Search and Surveillance Bill have been miscontrued by critics, according to the Law Commission.

Speaking at a recent seminar organised by a coalition of opponents to the Bill, now before a Select Committee, Warren Young, deputy president of the Law Commission, sought to negate fears that enforcement agencies would be able to conduct secret searches.

If the Bill is passed in its current form, speakers at the seminar said, a variety of agencies, from Police and the Commerce Commission and even the Pork Board, will have extensive and intrusive search and seizure powers.

These could include rights to conduct an online search of a computer belonging to someone suspected of an offence or regulatory infraction, without the suspect being aware of it.

While Section 101(4)(k) of the Bill appears to refer to such searches, Young said the power will only be able to be applied to search an “internet site”.

For example, police can search a webmail account associated with the suspect, a repository that can be legitimately accessed from a computer to which they have been allowed physical access under a search warrant.

“You can’t sit in the Police Electronic Crimes lab and hack into [a suspect’s] computer at home,” Young said.

“What the Bill says is that if data you’re looking for is [stored] on an internet site, and you can specify the internet site in your application for a warrant in the same way as you can specify a physical address, then you can get a warrant for that purpose.

“That is because clearly there is no physical place you can go to.”

One reason for the provision, he says, is that organised groups of criminals sometimes communicate with one another by using webmail accounts at internet cafés.

“You go into the internet café, you type in a draft, you never send it. You leave it in the Hotmail account; somebody else goes into another internet café, they read the draft and write a reply.”

Under present law, he says law enforcement agencies can’t get that kind of evidence.

“So we have that very limited extension for internet facilities that the Law Commission recommended [as] an exception to our general view that remote hacking into computers was definitely off limits.”

Some members of the audience remained unconvinced, however, and the subject surfaced repeatedly through the evening.

Lawyer Michael Bott of NZ Civil Liberties says he is not sure that computers will in practice remain immune from covert online searches.

Law-enforcement officers are known for “pushing the envelope”, he says, and might choose to exercise the power in defiance of a legal opinion, if no superior officer had countermanded it.

Earlier this year, a spokesperson in Justice Minister Simon Power’s office says no online access would be allowed unless the site was not physically accessible, but lawyer Rick Shera pointed out that there was no explicit statement of this in the Bill.

Young, however, says an explicit statement is not needed as substantive powers are only available if they’re specifically provided.

“There’s nothing in the Bill that provides remote access in that sense,” he said.

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