One problem with electronic searches is that people do not know at the time they have been searched, says lawyer Michael Bott of the NZ Council for Civil Liberties. This may breach a right that is acknowledged in physical searches.
He referred Computerworld to the submission that the council made on the Crimes Amendment (No 6) Bill on computer intrusion, now incorporated in the Crimes Act. This, he says, covers some similar ground to the questions that have been raised about the ethics of searching users’ P2P folders without their knowledge.
The submission comments on the provisions made in the bill for police and intelligence agencies to enter computer systems without the user's authority. Though in the case of the Crimes Act amendments, a warrant will be required, there is still an extra element of secrecy about electronic intrusion, the council’s submission says.
“Unlike the physical execution of a search warrant on a dwelling, the [amendment] establishes no requirement that state agencies performing surveillance leave a written notice prominently displayed in the system, notifying the user that their computer or archive was remotely accessed. This effectively reduces the individual’s ability and right to complain to chance.”
The searching of P2P folders has been done without any warrant, with the Department of Internal Affairs claiming that since the folders are left open to the internet for other users to trade files, they are effectively a “public” space.
Bott draws a parallel with the situation of a tradesman freely admitted to a private house to do a specific job and found to have sorted through private papers and drawers.
Meanwhile, Internal Affairs Minister George Hawkins has declined to provide copies of any legal advice received by his department in advance of the P2P searches.
"I do not hold any legal advice within the scope of your official information request," he says. "In any case, I note that Section 9(h) of the Official Information Act provides that good reason for withholding official information exists if it is necessary to maintain legal professional privilege."
The DIA has previously denied that any briefing notes exist on what its inspectors may and may not legally do in online searches. In answer to a request for such notes it provided only a recruitment advertisement with a job description referring generally to "overt and covert surveillance".
In a poll conducted in our sister publication, PC World, 70% of readers saw P2P snooping as an invasion of privacy, while the rest thought it was justified to detect and prevent crime and protect its potential victims.