Monday, August 14, 2017

NZ Post spied on the public

Last night we learned that NZ Post had been spying on the public, using microphones on its delivery vehicles to record and listen to conversations between its employees and random members of the public without the consent of either party. They've stopped now, after a Privacy Act complaint was laid, but its not just the Privacy Act they should be worrying about, but criminal prosecution. Because pretty obviously, this seems to be a case of using an interception device:

Subject to subsections (2) to (5), every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.

Microphones are "interception devices", and there's no question that the spying was intentional and knowing: NZ Post had been downloading recordings of conversations and listening to them. A "private communication" in this context means a conversation where there's a reasonable expectation of privacy, and that depends on the context. Some of the recorded conversations - on public footpaths with other people nearby, for example - won't be "private", while others (e.g. those up people's driveways or even at letterboxes where there aren't others around) certainly will be. And those are certainly conversations where the police would need a surveillance warrant to eavesdrop with a directional microphone.

The only real defence available to NZ Post is whether it was a "party" to those conversations. This normally covers employers in the workplace e.g. spying on phone calls and email. But in those cases, employees know. And as we've seen with Todd Barclay, they're not allowed to stick a dictaphone under someone's desk and listen to them. In this case, NZ Post seem to have Barclayed every one of their little spytrucks, without the knowledge of either their employees or the public. I don't think they can argue that they're a party, and I very much doubt they had any sort of surveillance or intelligence warrant for their spying. So the question is: will they be prosecuted? And if not, why not?