Tuesday, January 30, 2018

Tweaking the Search and Surveillance Act

The Law Commission and Ministry of Justice have released their joint Review of the Search & Surveillance Act 2012. This was meant to be a post-legislative review to determine if the law was working properly, and overall it concludes that it is. At the same time, there's some significant (and useful) tweaks:

  • The big one: requiring judicial authorisation for police covert operations. The threshold for this - reasonable grounds to suspect an offence punishable by imprisonment - is too low (to point out the obvious, "disorderly behaviour" is punishable by imprisonment, so this would allow police infiltration of protest groups). But the principle of requiring judicial authorisation for this sort of activity is good, and suggests that the police may have learned something from their disastrous Red Devils case, and from the horrors of the UK.
  • Changes to the production order regime, including requirements to notify targets and a suggestion that there should be reporting. A lot of this material is redacted due to suppression orders around an ongoing court case, but it looks like things are moving in the right direction.
  • A requirement that a search warrant be obtained in order to search a digital device such as a cellphone.
  • Replacement of the term "surveillance device" with "surveillance technology", so that the law covers surveillance via software (e.g. using people's webcams to spy on them). This is a good, technology neutral change, and its one which needs to be applied to the Intelligence and Security Act regime as well.
  • A policy statement regime, similar to that used in the Intelligence and security Act, requiring enforcement agencies to state publicly how and when they will use search and surveillance powers.
There's a few nasty things - allowing Immigration to use surveillance devices and trespass visual surveillance, which seems unjustified by the nature of crimes they deal with; letting undercover police use fraudulent identity documents like spies; increasing the penalties for refusing to disclose your passwords to police - but its generally positive. It will be interesting to see if parliament follows the report's advice, or whether it will be watered down at the behest of the police.