Tuesday, November 25, 2014

A surveillance power-grab

Section 7 of the government's spy bill introduces a new power for police and SIS to access information held by Customs. Its not mentioned in the press release, and the bill's explanatory note is extremely vague. So what's it about? Fortunately, the BORA-vet is explicit: its about allowing police and SIS access the fruit of Customs' warrantless border-search powers:

38.The Customs and Excise Act contains significant search and surveillance powers. As an example of one such power, a High Court decision has held that s 151 provides that a Customs officer may examine or analyse any goods that are subject to the control of Customs or the officer has reasonable cause to suspect are subject to the control of Customs. Section 151 is designed to provide Customs officers with the widest possible powers to deal with persons who arrive in New Zealand from overseas. Customs officers are entitled to examine and analyse such articles as may be of interest to them by any means whatsoever. Section 151 does not provide a requirement of reasonable cause or suspicion of criminal activity, and the information obtained may be retained for law enforcement purposes. An example of the information obtained includes data downloaded from a cell phone. [17]

39.It is entirely appropriate for Customs to have wide latitude to search and seize goods at the border without a warrant for the purposes of border protection. What is of issue is NZSIS and Police having access to data taken by Customs without a warrant for border protection and then using it for other purposes such as investigation of suspected criminal offending. We consider that comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion. [18]

40.The Bill states that the use of Customs’ information by NZSIS and Police is for the purpose of conducting counter-terrorism investigations. The investigations involve addressing serious threats to safety or property and the information taken by Customs is in the strictly regulated environment at the border. This power to access Customs’ information will be subject to a sunset clause expiring on 1 April 2018. In addition, in November 2013 Cabinet agreed to a full review of the Customs and Excise Act. The review process now underway aims to develop new legislation that improves facilitation of travel and trade through the border, supports Customs’ border management and has the flexibility to adapt to new technologies and developments. It is intended to have new legislation passed in 2017.

41.Based on the above, we consider that access to Customs’ information for the limited purpose of counter-terrorism investigations appears to be a reasonable search and seizure.

[Emphasis added]

The prospect of the police using Customs to circumvent warrant provisions is one I've raised concerns about in the past. The Minister of Justice has just said that it's illegal, but that she's OK with legalising it (because "national security" justifies spies poking through all your text messages and data without a warrant). But the fact that she's said its illegal invites the obvious question: how many times has Customs broken the law by providing border search information to police or the SIS? And will they be held accountable for it?