Monday, August 05, 2013

A hole in the law

The weekend's news that the police had seized the text-messages of journalist Bradley Ambrose during their investigation of the "teapot tape" (including legally privilged messages between Ambrose and his lawyer) exposes a clear case of police over-reach. As constitutional lawyer Bill Hodge says, it is mind-boggling that they would apply such intrusive powers in such a minor case, and it appears to be a clear breach of the BORA protections against unreasonable search and seizure. But it also exposes a clear hole in the law, in that their seizure of privileged material appears to have been entirely legal.

The problem lies with the provisions on production orders in the Search and Surveillance Act 2012. These allow the police (and a host of other agencies) to apply for a production order for any document for which they could obtain a search warrant (basicly, anything containing evidence of any imprisonable offence). "Document" specifically includes call-data, including telecommunications stored on a network-provider's network (so text messages and stored voicemail), and the purpose of the provision was specifically to allow police to access such information (as well as banking information and so forth). That is, its all about extracting information from third parties. But the provisions around privilege (including legal professional privilege and journalistic privilege) apply only to the target of such an order. Telecom and Vodafone have no privilege over your communications with your lawyer, so those provisions are basically a dead letter.

Contrast this with the rules on interceptions and direct surveillance: a person conducting such surveillance must take all reasonable steps to prevent the interception or surveillance of privileged material, and must destroy any record of any privileged material which has been intercepted. Not so with a production order. There the police have carte blanche to rummage through privileged communications, provided they were acquired from a third party. While they would not be able to use it in court, in many cases the damage would already have been done.

There's also the problem that such orders are available for any imprisonable offence. This includes not just things like rape, murder, and drug dealing, but also minor vandalism, or those old police standbys disorderly behaviour and resisting police. So, protest with a message or in a way the police don't like, and they can rampage through your private communications - including those with your lawyer, doctor, and partner - looking for "evidence" (and then keep it all and database it for the future).

This seems to go far too far. Surveillance warrants are only obtainable for serious criminal offending. There should be a similar restriction on the use of production orders for telecommunications metadata. Does anyone want to take a private member's bill to protect our privacy from this abuse?