Wednesday, March 16, 2016

Unlawful surveillance in Christchurch

At the moment, the government is conspiring to extend the GCSB's powers to allow domestic mass-surveillance of all our internet and phone communications. But its not just the spies wanting to snoop on everything. Down in Christchurch, they're spying on people for dog control:

A Christchurch couple were shocked to discover the city council was spying on their dogs using a listening device covertly placed in their garden.

The move has astounded Jenny and Tim Bennett and a human rights lawyer, who said the couple's right to privacy has been breached.

The Christchurch City Council admitted on Tuesday it used the devices and normally sought permission before installing them.

That did not happen in the Bennetts' case.

In legal terms, this is an "interception device" as it is capable of recording private communications, and therefore a "surveillance device". Installing such a device without consent is clearly unlawful. Use of a surveillance device that involves trespass to land requires a surveillance device warrant. Such a warrant can only be issued for an interception device for serious crimes: serious drug or arms offences or crimes carrying a penalty of more than seven years imprisonment. There is no capacity in the Dog Control Act 1996 for the the use of such devices, for obvious reasons: its almost entirely infringement offences. The two imprisonable offences in the Act (mistreating a dog, or owning a dog which causes serious injury) do not remotely reach that threshold.

Unfortunately, its not a criminal offence - that requires both the actual interception of a private communication, and the intent to do so - so the moron in dog control who thought it was a good idea to put a surveillance device in someone's garden without permission and without a warrant will not be going to jail. But its clearly a violation of the right to be free of unreasonable search and seizure, and possibly of the Privacy Act as well. The Bennetts can take the Christchurch City Council to court, and they should - because the only way councils will learn not to pull this shit is if they are sued into the ground whenever they do it.

Meanwhile, it raises the obvious question: what other councils are doing this? What policies and procedures do they have governing this surveillance? And have any others violated the Search and Surveillance Act by engaging in illegal trespass surveillance? Fortunately, we should be able to get some answers using the OIA.

It also raises the question of what other surveillance they are engaging in. In the UK, local councils engage in widespread and intrusive surveillance over petty infringement offences and bylaw breaches. I'd hate to see a culture of that developing in New Zealand.