‘Rapid advance’ of new technology puts Search & Surveillance Act under scrutiny

The Law Commission and the Ministry of Justice are seeking public feedback on the review of the Search and Surveillance Act 2012.

The organisations have together released an Issues Paper describing possible ways to improve the operation the Act.

According to the Law Commission, the paper is intended to promote submissions from interested groups and people about whether the current range of search and surveillance powers for investigating and prosecuting crime in that Act should be reformed.

According to Donna Buckingham, Law Commissioner, in 2012, many search and surveillance powers were consolidated into one Act following a long process that included a Law Commission review, two Bills before Parliament and extended public debate.

 "For the most part, those powers appear to be operating well," she says.

"The powers are generally effective and adequate for investigating crime while recognising human rights, particularly our right to be free from unreasonable search and seizure.

"However, four years on, the operation of the Act and the rapid advance of new technology have highlighted a number of possible issues that need addressing," says Buckingham.

"For example, the growth in cloud computing means that a significant amount of digital information that may be required to prosecute offending is now stored via the internet on cloud-based apps," she explains.

Buckingham says the Act makes it more difficult to search that data and the Issues Paper asks whether that approach is still justified.

"Another issue we are aware of is that the Act requires a surveillance device warrant for only certain types of surveillance," Buckingham adds.

"It is not possible to get a warrant for other types of surveillance, such as computer programmes to track online activity. This creates considerable uncertainty about whether or not those other techniques can be used," she says.

Rajesh Chhana, deputy secretary, Policy at the Ministry of Justice, says, "This joint review, which is required under the Act, will help ensure the law strikes an appropriate balance between protecting people's rights and enabling law enforcement agencies to effectively investigate and prosecute crime.

"It's important that any recommendations for change take the public's views into account. I encourage anyone with an interest in these issues to make a submission," he says.

 "This Issues Paper provides an opportunity for all New Zealanders to have their say if they think either that the powers in the Act are not effective for law enforcement purposes or that they are not sufficient to protect the rights of individuals," adds Buckingham.

Submissions are open until Friday 16 December 2016. The views expressed in those submissions will help the Law Commission and Ministry of Justice formulate recommendations for reform of the Act, which will be contained in its final report. That report must be given to the Minister of Justice by 28 June 2017.