Tuesday, June 02, 2015

Rubberstamping surveillance

A couple of stories from overseas about what a poor job the courts are doing of overseeing surveillance. First, from the UK, where 93% of police requests to access phone and email records are granted, and police submit a request for such data every two minutes. Then, in Australia, where a refusal rate in New South Wales of less than 2% has led to the courts being labelled as a "rubberstamp". So what are the equivalent stats for New Zealand? The police are required to publish information about their use of interception warrants under the Search and Surveillance Act (and before that under equivalent provisions in the Crimes and Misuse of Drugs Acts). I've compiled those statutory declarations from their annual reports, and they're pretty horrifying. The headline statistic: in 15 years of data, the New Zealand courts have never refused an application for an interception warrant, they have never refused an application for a tracking warrant, and they have never refused an application for call data. In that 15 years, there is only one actual refusal: an application for an emergency permit in 2009. That's one refusal in 3217 uses, a rejection rate of 0.03 percent.

If 2 percent is a "rubberstamp", I'd hate to think what our courts must be.

The statistics also show that there has been an explosion of warrantless "emergency" searches under the Search and Surveillance Act. The reason for this is simple: previously, emergency searches still required the consent of a judge, while under the Search and Surveillance Act, they don't. The result is predictable: police tapping phones without bothering to ask first. Most of these "emergency" searches last the maximum 48 hours, and there's no reporting on how justified they are or on how many of them are subsequently turned into normal warrants. Which doesn't bode well for the SIS's use of such powers.

Finally, an interesting point: up until 2012, the police were apparently perfectly capable of recording how many applications for call data information they made. Now they can't. Which just makes it seem even more like a self-serving failure to record.

The full NZ police surveillance dataset is here.