Police powers and the law

It is around about now that the truth of what was behind the cancellation of charges against the Urewera 17 is coming to light.

That truth lies in a piece of legislation currently before the House, and being pushed through under urgency.

The legislation has the effect of allowing Police powers they as the law had interpreted them prior to a couple weeks ago; the date of the Supreme Court’s decision that the basis of much of the evidence against the Urewera 17 had been illegally obtained.

My understanding of the general position is this –

First, the Police have been obtaining evidence using covert (hidden) means including hidden video cameras and sound equipment (as distinct from the traditional wire-tap).

Second, the use or even the existence of these methods was not envisaged at the time the present legislation was enacted.

So the interpretation applied by the Police, supported by a number of criminal cases already concluded and appealed (two specific ones have been mentioned), has been that if it is not specifically prohibited then it is legal.

The Supreme Court case – the elephant in the bed – has turned that interpretation on its head. If it is not specifically authorised then it is illegal.

That really does follow White’s (from “The Once and Future King”) ants nest sign changing from “What is not Forbidden is Compulsory” to “What is not Compulsory is Forbidden”.

I have had one instance where my office was used by police for surveillance of a neighbour in some considerable secrecy. That was set up in accordance with a Court Order requiring that the use be provided and specifying the nature of the evidence to be obtained under the Warrant. Seems to me that is exactly the same situation as was followed in the case of the Urewera 17 except for one small but essential fact. In the latter case the consent of the landowner from where the surveillance took place was not sought. Why? For the very simple reason that they were the same people against whom the evidence was being obtained.

Now I can sympathise with the Police in the difficulties this may have caused in their process against the Urewera 17. That sympathy goes no way toward what I see as the centre of my personal objections to what happened.

First up, the police should be required to prove that there is substantial and legally obtained evidence that a crime has been or may be committed. That need not take place before open Court but it does need the Court’s hearing and consent. I do not believe that changes anything that already exists.

Second up, and irrespective of any charges that may subsequently be laid, that process must be revealed to the person(s) being investigated as part of the evidence in Court for resulting charges, or once the police have completed their investigation, or at the latest within a specified time period; I would suggest four years as a long maximum.

Third up, the process is required, essential, to prevent police indulging themselves in “fishing” for evidence against individuals without valid cause.

It comes down to this –

Whatever legislation the Government wishes to implement, governing the rights of Police to investigate and obtain evidence, must at all times be and remain subject to the New Zealand Bill of Rights Act 1990.

This dates back as far as June 2002 –

SUPPLEMENTARY SUBMISSION ON PRELIMINARY PAPER 50: ENTRY, SEARCH AND SEIZURE
I
write further to my letter of 23 May 2002 in which I made a submission on Part
II of the discussion paper. This supplementary submission touches upon Parts III
and IV.
PART III: POLICE POWERS TO ENTER, SEARCH AND SEIZE
…
While I understand that [the Law Commission is] concentrating on search upon arrest I highlight two related issues in this context:· the merit from a privacy
perspective in delaying more intensive searches until the suspect in the
controlled environment of the police station (and I believe the philosophy of
[the United Kingdom Police and Criminal Evidence Act 1985] PACE s.32 is
consistent with this); and· if Police Act 1958 s.57A is to be amended, through
repeal of s.57A(5), it may also be timely to review the provision in total to
see whether it needs to be modernised to better protect peoples' rights,
including expectations of privacy, consistent with reasonable law enforcement
needs.

A general warrant?

In paras 30 and 31 [of the Preliminary Paper 50] the case for a general warrant for investigative techniques is raised. One example is given of a real New Zealand case involving 6 months of Police video surveillance into a person's home through a kitchen window. The merit of a warrant process authorising such intrusive surveillance by warrant for the Police is that the risk of the evidence gathered being declared inadmissible is minimised. The merit from a civil rights and privacy perspective is that the Police must initially justify their case to an independent person and, if the surveillance continues for an extended time, the Police will have to return to the judicial officer to maintain the justification. Conditions can be imposed to minimise the impact upon the suspect and other persons. The Commissioner has
formally recommended that consideration should be given to establishing a judicial warrant process in relation to the use of covert video surveillance in the investigation of offences (Privacy Commissioner, Necessary and Desirable: Privacy Act 1993 Review, 1998, para 2.6 and recommendation 22).

Accordingly, the Privacy Commissioner welcomes exploration of the idea.

However, wherever possible the legislature should expressly consider the means of investigation and craft statutory safeguards warranted by the nature of the technology and the intrusiveness of its application. It has done this in the past in relation to search warrants, interception warrants, call data warrants and computer access authorisations. In such crafted legislation the judicial warrant forms part of a
wider scheme of safeguards rather than the sole protection (e.g. in relation to offence provisions, absolute prohibitions on certain practices with standard conditions on certain others, information retention and destruction, record keeping, notification, audit, compensation, public reporting etc).

That analysis is a good and fair analysis of just how I have always seen the handling of the investigation, charging, and judicial fallout from the Urewera 17 case.

He concludes -

Accordingly, any proposal to claw back the protections in s.21 by omitting reference to unreasonable search, and placing the emphasis only on unlawful search, will make the NZBORA even less effective as a partial implementation of the universal human right of privacy. Tinkering with the Bill of Rights is rare.

Perhaps doing so offers the opportunity to consider including a new article modelled upon Article 17.

It seems clear from Scott Optican's review of the case law ("What is a 'search' under s.21 of the New Zealand Bill of Rights Act 1990? An analysis, critique and tripartite approach" 2001 NZ Law Review 239) that a central role of judges in the cases under s.21 is to adequately protect privacy. Investigative conduct which can breach reasonable expectations of privacy is frequently likely to be raised by surveillance activities involving no trespass of the traditional kind. If reasonable expectations of privacy are to be protected at all in this area it is undesirable to simply look at the
question of lawfulness in terms of trespass. To limit the section the manner canvassed in the paper would presumably diminish legal protection of privacy.

That would not be supported by the Privacy Commissioner.

Finally, the discussion paper focuses solely upon the use of s.21 in court proceedings,
particularly in challenging admissibility of evidence. For example, para 37 suggests that the reference to unreasonableness ceased to be useful when the Bill of Rights was rewritten so that the courts could not strike down statutes.

However, the NZBORA is also used as a standard in guiding officials who propose, develop and scrutinise new laws including those laws that empower officials to carry
out searches and surveillance. If the test were simply to be lawfulness the mere enacting of a statute conferring such powers would essentially end the matter. It is also useful that there be scrutiny of the reasonableness of such laws. Although such scrutiny could be undertaken in the absence of the NZBORA, the fact is that one of the NZBORA's major current roles is as a standard for pre-legislative scrutiny of bills.

For me, the difference lies between on one hand the police using private cctv footage to obtain evidence in investigating a crime committed, and on the other the police using the same cctv footage to track and monitor individuals who may not have been involved in the commission of any crime.

Things that make you go "Hmmmm"...

Snipped from the heading of a google search...

Oh, click on the image to get it to a reasonable size.

On Houseguests...

For the past four weeks (nearly) we have had a houseguest. This would not normally be a problem given that the commitment to a houseguest, the hospitality, the inconvenience, the reduction in privacy is finite and (in the normal course of events) expressed in the invitation.

It is in that last word that the problem begins – the present houseguest was uninvited, unbidden, very nearly unwanted, but - as the probligo household is discovering - family ties create obligations and commitments that are far stronger, last longer, and far more binding than an open invitation.

We are learning this as the result of a telephone call from numberoneson( #1son ) one morning, advising rather than asking that he would be moving in that night. It transpires that he confessed in the heat of a marital moment to having it off with another woman. I am not going to preach the probligo’s thoughts on the morality of the event(s). As far as I am concerned his actions and the (inevitable) consequences are his alone. I leave that part to him to get sorted. To make it clear, #1son is unmarried, has two children in the now defunct relationship.

The choices made by both our children have been handled on a very open laissez faire basis. There has never been, other than two instances of “your choice but you wear the consequences”, any pressure brought to bear on either despite some (quite normal) parental misgivings. Advice has always been freely and honestly given, but only when asked for and always on the basis that ”you might not like what you hear”.

All of which is, on reflection, incidental to the fact that the probligo’s household presently includes an unbidden and largely unwanted houseguest.

On matters of "artificial intelligence"...

Al the Old Whig's latest post is little more than a link to a rah-rahview of one of the lesser movies out of the '70's, a sci-fi non-epic "The Collossus" which I think fortunately I have never heard of before let alone bothered about. The review that Al has linked to follows the plot-line of an "artificial intelligence" threat of world domination by a computer or computer systems.

There is a matter which I have been following with some interest over the past few months.

It started, as far as I can find, in The Register - out of UK -

It surfaced again in Granny Herald and many other major syndicated news broadcasters. It has simmered on since; NZ has the Police looking into it; Australia's Privacy Commissioner has said outright that it is an invasion of privacy and illegal; in the past few weeks there has been growing rumbles coming from the legal system in the US...

From The Register -

Google has said that its world-roving Street View cars have been collecting information sent over open Wi-Fi networks, contradicting previous assurances by the company.

This means that Google may have collected emails and other private information if they traveled over Wi-Fi networks while one of the cars was in range. Previously, the company said no payload data was ever intercepted.


In a blog post [1] published on Friday afternoon, the company said that it collected the data by "mistake" and that the data has not been used in any Google products. Street View cars have now been grounded, according to the post, and the company has promised to delete the data. But before doing so, it will be asking regulators in "the relevant countries" how this should be done.

Google declined to comment on the matter, instead pointing us back to its blog post. It arrives less than three weeks after the company said that such data was not being collected. But since then, Google conducted a review of the data being collected by its Street View cars after the data protection authority (DPA) in Hamburg, Germany requested such an audit.

Ginger McCall, a staff counsel with the Electronic Privacy Information Center (EPIC), a public watchdog, calls the data collection a "violation of customers' trust," and she questions Google's claim that it was collecting the data by mistake. "People need to ask why was Google was collecting this information," McCall told The Reg. "It's difficult to believe that this would be done accidentally.

"This really flies in the face of their assertion that customers should just trust them."

On April 27, in response to a complaint from the German DPA, a Google blog post [2] said that in scanning open Wi-Fi networks its Street View cars were collecting only the SSIDs that identify the networks and MAC addresses that identify particular network hardware, including routers. Google uses this data in products that rely on location data, such as Google Maps.

But the company now says that when Street View cars began collecting this data, it accidentally included some additional code with the cars' software. "So how did this happen? Quite simply, it was a mistake," today's blog post reads. "In 2006, an engineer working on an experimental Wi-Fi project wrote a piece of code that sampled all categories of publicly broadcast Wi-Fi data.

"A year later, when our mobile team started a project to collect basic Wi-Fi network data like SSID information and MAC addresses using Google’s Street View cars, they included that code in their software — although the project leaders did not want, and had no intention of using, payload data."

At this early point, there were two separate "causes". The first was the fact that Google was collecting SSID's from open Wifi's. On the face of it, that might seem to be relatively innocuous and innocent. The second cause was the accusation, and partial acknowledgement by Google that they had also "accidently" collected other data at the same time; things like stray emails and the like, or Dad's porno movie that the boys were watching in the back bedroom while "the game" was on tv. This is what has really caused the blow-out in the news.

Personally, I think that Google are very happy that their somewhat tentative acknowledgement is taking all of the heat. How so? Because it is not what they were really after. Think about it for a moment. Those "street cars" were not stationary. They drive past at about 40kph. That means they would have been outside my house for about a minute or so. The chances of extracting anything more than a fleeting glimpse of the traffic on one wifi network? Virtually nil.

The scary part of this news is the actual collection of SSID's, not the remote possibility of tapping traffic from a private network. This is the far more insidious data, when you consider that SSID's are tagged against every piece of data that goes out onto the web; and given the average level of system security much of what is not (intentionally) sent out into the wider world but gets there through the universal virus and trojan horse infections.

It goes further.

Off topic, or so it might seem, for a moment. Recall the news not six months back that Google (and others) were accedeing to the RPC Government's request to censor the global access from China. The usual example was Tianenmen Square did not exist; Wiki was not available; the list goes on...

Back to topic again.

The scariest thing - when you start talking about personal rights - is what you do not know. If you do not know that your government has an unhealthy almost prurient interest in your daily doings (because you are a terrorist, or associate with criminals, or belong to Falun Gung, or are an Elder in LDS, or whatever) then your image of personal freedom is going to get a sudden and very cold shock.

If the likes of Google can do a deal with the PRC Government in the interests of commercial growth and profit then who can be sure that similar agreements do not exist with other governments, even most particularly the US.

Think about it for another moment before you dismiss the idea out of hand, or blame it on just another Obama socialism plot (it dates from 2006 - the midst of the Bush second term).

How much traffic is monitored on behalf of the US government through sites such as Waihopai? Very little, they say. Only those parts that are "of interest".

Let's not worry too much at the moment what "of interest" might imply. It might be only terrorism threats, or the Cosa Nostra, or the Triads. That is not the point.

What is important is that that traffic, every little bit of it, is tagged with SSID's.

Now, through Google, those SSID's can be tracked to a very specific address.

So, be very afraid. The 1970's B-grade sci-fi flicks might well have gotten their definition of "artificial intelligence" wrong.

On Facebook and matters of privacy...

About a month ago, a tennis-friend of the Mrs probligo joined up with Facebook. There was no need for her to publicise this, nor did she do anything more than follow the process of form-filling to get her page set up.

The first that we knew of it was an email - through Facebook - saying the the Mrs probligo should join up and become a "friend".

That would also explain how Facebook got a hold of our email address.

What is inexplicable is that the email includes the names and Facebook addresses of four other people.

Those four people are -

the probligo's daughter, whom we know has a Facepage.

a lady the Mrs probligo worked with about 5 years back and with whom we have occasional direct contact.

Tommy Miesel whom I suspect might be the same gent I conversed with some years back on matters modelling.

Alan Erkkila, whom I presume might have a very direct relationship to an old whig.

And therein lies the mystery.

How was Facebook able to make the connection between the latter two and the Mrs probligo (or perhaps the probligo's private email address)?