Tuesday, October 27, 2015

An unwarranted demand for information

Over the weekend, Scoop started publishing the court file from Nicky Hager's case against the police over their intrusive and vindictive search of his home in an effort to identify his source for Dirty Politics. And in the process, we were once again reminded of the police's habit of demanding information without a warrant or court order:

Hager's legal teams used police documents to detail how detectives sought information on him in late September last year - just after the election - from 16 "bank contacts", Air NZ, Jetstar, Spark, Trade Me and Vodafone. The request to Air NZ also sought information about anyone Hager might have been travelling with, the documents show.

Detectives told the companies they needed the information for an inquiry into "suspected criminal offending, namely fraud, dishonest access of a computer system", telling the bank the information would help avoid "prejudice to the maintenance of the law through the detection of serious offending".

The Privacy Act allows those holding personal information to waive the law if there are "reasonable grounds" to believe it would assist "maintenance of the law". There is no sign in the High Court documents of Westpac - or any of the agencies - being supplied with additional information that might assist with the "reasonable grounds" test.

The documents do show the other companies rejected the request without a legal order. Hager's lawyers said: "Police did not seek production orders for any of this information."

The police defend this practice as "just asking", but that's disingenuous. The fact that they wear a uniform and represent the state means that their requests are never just requests, but are instead by default viewed as legitimate demands which should be obeyed. And police exploit this obedience and desire to cooperate to the full - in this case, to demand extensive and intrusive information on a journalist (including his finances, his phone metadata, where he'd travelled and who with) in a purely political investigation aimed at uncovering and punishing someone for embarrassing the government of the day. Its a gross abuse of power. And it tells us both that our corporations are utterly spineless and that our privacy protections are inadequate. We have search warrants, production orders, and judicial oversight for a reason - and the police are sidestepping it whereever possible to invade our privacy.

There's potentially an interesting privacy case in this over what counts as "reasonable grounds" under the Privacy Act to release information under the law enforcement exemptions (which require the information holder to believe that disclosure etc is "necessary" to avoid prejudice to the maintenance of the law). Is a policeman's say-so enough? If so, why do we have judicial oversight at all? I'd like to see Hager take that case. In the meantime, I'd recommend not banking with Westpac, because they have clearly demonstrated that they do not respect and will not protect their customers' privacy.

(As for Telecom and Vodafone, they have extensive quisling agreements with the police, negotiated under the threat of having their servers seized and business disrupted by search warrants. There are redacted versions of both on FYI here).