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Nicky Hager

All civil liberties must be balanced with other legitimate rights and needs of society. My

rights must be balanced with other peoples’ rights. The right to personal privacy must be

balanced with society’s need to investigate serious crime. Freedom of movement with road safety and civil aviation regulations. And so on.

In each case the question needs to be asked whether the legitimate needs of society and upholding some people’s rights are a good enough reason to restrict other’s rights. A free society is built upon working constantly to get this balance right and, if there is uncertainty, erring on the side of protecting civil liberties.

Compared to much of the world, New Zealanders have the good fortune of living in a very safe and free country. Unfortunately, this can have the effect of making people complacent and unobservant about threats to civil liberties.

In my opinion, New Zealand is going through a period of serious degradation of civil liberties. Some expansion of surveillance may be justified but most is occurring without any objective necessity, driven by technological change, foreign pressures and over- reaction to terrorist threats. We still have a much freer country than many, but when we consider the dramatic reversal of decades-old civil liberties occurring in the United States (before and after 11 September 2001), we should not take our relatively fortunate state for granted.

To date the negative changes to civil liberties in New Zealand have barely registered as a subject of public debate, partly because the impact is not felt acutely by middle class pakeha New Zealanders and more recently because exaggerated threat assessments following September 11 have dominated policy discussions.

Another possible reason for the lack of debate is that state surveillance powers have been increased with the support of the Labour Party (in opposition and then in government), a party traditionally relied on by the public to defend civil liberties. Currently that party, in government, appears to include no one who is seriously interested in privacy and other civil liberties.

The following list shows the breadth of changes occurring.


1. Surveillance at work There has been a rapid increase in monitoring of employees within their workplaces, to a point where some highly intrusive practices are starting to seem normal. Some examples 2


• Employers monitoring staff e-mail and phone logs

• Closed-circuit TV (CCTV) monitoring of employees in workplaces

• Electronic bugging of employees. A recent case I’ve heard of is a food processing company in Levin where, unbeknown to the staff, their conversations in the lunchroom are monitored by the company management.

2. Surveillance at home There is a growing industry in surveillance technology designed for some family members to use against others (parents against children, husband against wife etc). Some are marketed as protection for children, others purely for snooping.

• Hidden CCTV cameras and Internet and e-mail monitors are available for suspicious partners and for parents.

• Toys and other household objects can be purchased containing surveillance equipment. There is a massive growth in the types of surveillance equipment freely available.

3. Surveillance by private firms Private investigators and private security companies have all manner of electronic surveillance tools available to assist their clients. Huge holes in existing privacy laws, and the difficulty of policing even the existing protections, mean that people snooping for profit operate widely, within and outside the law.

4. Commercial surveillance / Data surveillance

There has been a huge increase in the collection, analysis and selling of personal information for commercial purposes. This growth has accompanied the growth of electronic data sources (sales and checkout data, mortgage information, loan and debt information and so on). Analysis of these sources provides aggregated data to assist marketing companies, but can equally provide information about individuals (monitoring their “data trail”). As more and more data sources become available and are combined, the

intrusiveness of this activity will grow. For example:

• Flybuys is promoted purely as a loyalty scheme, but it involves written agreement to the collection of large amounts of personal spending information that is linked to the individual (and the biographical details they provide) by their card.

• Baycorp puts together an ever-wider set of data sources such as individuals’ loans and debts, addresses and other personal information. The result is a privately-compiled database of information about most New Zealanders that is freely available to Baycorp’s customers.

• Also, there has also been little thought about the widespread CCTV monitoring of people in places like shops and petrol stations – and the possible future face recognition, aggregation and analysis of this data.


5. Street surveillance The concept of a “public place” is changing subtly but very significantly with the increasing use of surveillance systems.

• There is rapidly increasing use of CCTV monitoring of streets, train and bus stations and parks. Various British cities have already supplemented their CCTV systems with face recognition technology. Other systems use computer programmes to notice unusual patterns of behaviour in monitored areas.

• Automated surveillance of car number plates is not far behind the CCTVs. Whether it is introduced for traffic or crime reasons, this will have profound effects as it monitors the movements of many citizens.

• The next step would be centralised monitoring facilities where surveillance data would be stored for future use and where databases of faces and number plates would be stored. For instance, the New York Times of 14 March 2003 reports that the State of Illinois Department of Motor Vehicles has a database of 13 million face images, used (presumably among other things) to spot individuals seeking multiple licenses under different names.

• Justified as crime detection measures, CCTVs and face recognition technology have the potential to eliminate privacy in public places as every citizen is routinely monitored. There has been little debate about the claimed benefits and long-term costs of these developments.

Notice that many of these surveillance changes are technology driven as opposed to arising from some pressing social need. Digital technology has made all kinds of surveillance possible that was previously unimaginable or at least far more difficult or expensive. New devices and systems are developed and manufactured in other countries then gradually find their way here. There is an urgent need to find the proper balance between individuals’ civil liberties and the assumed value of this surveillance.

Just as unauthorised monitoring of people’s spoken communications is illegal (reflecting the state of technology when the laws were written), new privacy laws are urgently needed to maintain legitimate privacy in the digital age. For instance, in September 2002 a British MP announced that he will introduce legislation stopping monitoring of staff e-mail by employers. Technical ability to conduct surveillance should not be seen as a license to do so.

Priority should be given by the Government to developing comprehensive new privacy legislation for New Zealand.


State surveillance activities in New Zealand are also partly technology driven. But the biggest influence by far is the expectations of and requests from allied countries, particularly the United States and Britain. Most activities of New Zealand’s intelligence agencies, most surveillance legislation and most technology are the direct result of the so


called “long standing intelligence relationships”.

Partly the result of technological opportunity and partly reflecting a swing against civil liberties in the US and Britain (well before the 11 September 2001 attacks), a series of intrusive new surveillance plans have appeared in those countries in the last decade. A few years after their adoption there, we often hear that similar moves are being considered in New Zealand as well.

One example of foreign pressures I have followed concerns two pieces of surveillance legislation currently before our Parliament. Changes to the Telecommunications Act, introduced to Parliament in November 2002, will impose legal obligations on telecommunications companies to co-operate with surveillance of their customer’s communications, including real time access to e-mail, text messages and mobile phone communications under an interception warrant. The Crimes Amendment Bill No. 6 will give the Police and SIS new powers to conduct these new forms of surveillance and also to hack into individuals’ computers.

Although these bills are being put through Parliament in a post-September 11 climate, they date from a decade ago when the United States Government pushed through very similar legislation (against major protest from US civil liberties groups). I became aware of these moves when I learned that New Zealand Police and Security Intelligence Service staff were part of international working group meetings in Europe looking at new surveillance capabilities. These meetings were initiated by the US Federal Bureau of Investigation in 1993 and involved the FBI trying to persuade European Union countries (and others such as Australia, Canada and New Zealand) to adopt surveillance laws like the US one. The US goal is a standardised international surveillance regime that allows people of interest to the US authorities to be monitored across many countries.

In October 2000 I wrote an article predicting that legislation based on the FBI-EU negotiations was going to appear soon in New Zealand. Minister Paul Swain confirmed that the legislation was coming but denied there were any links with international surveillance planning. It was, he said, a “conspiracy theory”.

Since then I have obtained many of the background papers under the Official Information Act. The New Zealand Police documents clearly show the attendance of New Zealanders at the FBI-EU planning meetings (called the International Law Enforcement Telecommunications Seminars, ILETS), records of commitments the New Zealand officials made at those meetings and then meetings in the late 1990s where the officials proposed the legislation changes to the relevant National Government Minister. There was apparently no sense of urgency, with regular reminder letters arriving from the ILETS secretariat over a number of years reminding the New Zealand officials of the undertakings they had made. Finally the Labour Government agreed to introduce the legislation we see now before Parliament.

Mostly these foreign linkages are not made public. However in my experience many initiatives in New Zealand concerning policing and intelligence, immigration, customs and civil aviation can be traced back to plans emanating from and commitments made to the relevant (usually US-dominated) international organisations or US and British agencies.

5 The expansion of legislative powers and technical capabilities for state surveillance of

New Zealand citizens has several main features:

• The insidious trend for technology and practices developed by intelligence agencies (for national security threats) to be used for targeting ordinary citizens (eg. for policing crime and protest). Likewise the equally insidious use of military-style tactics developed for fighting wars and counter- terrorism for all manner of domestic policing roles (notably our police’s para-military Special Tactics Group). These trends are occurring despite statistics showing consistent declines in reported crime and the absence of political violence in New Zealand.

• Virtually all the new surveillance powers and capabilities are direct imports from the US and Britain.

• We can reasonably predict – based on experiences in other countries – that the increased powers and capabilities will lead to higher overall levels of surveillance, despite a lack of evidence of increasing threats to justify the eroding of civil liberties.

• The introduction of new state surveillance powers and capabilities is surrounded by secrecy and carefully managed public relations – minimising rather than encouraging public debate. The public is not getting any effective say on the changes occurring.

Increasingly, in a re-run of Cold War thinking, the rationale for new security/surveillance moves is not to protect New Zealanders but because of the tenuous concern that New Zealand not be able to be used as a base for criminal or terrorist actions against the US and other allies. This is also the basis for the ILETS-co-ordinated standardisation of surveillance laws. In other words, New Zealander’s civil rights are being reduced because of security fears of other countries.

Based on developments in Britain and the US, there are various surveillance initiatives that

it is likely our Government will be under pressure to introduce in the coming years:

• Legal requirements on telecommunications companies to store records of every customer’s phone calls, mobile calls, e-mails, faxes and Internet usage for, say, one or two years (or longer) – that is, “traffic data” showing who each customer’s communications were to and from, when and for how long – and to make this data available to intelligence agencies and police. EU countries have recently bowed to pressure to do this.

• Biometrics (eg fingerprints or images of a person’s iris) on passports. The US has been pushing hard for this in fora such as the International Civil Aviation Organisation.

Our government has already agreed to it.

• Legal powers to obtain location data from telecommunications companies for individuals’ mobile phones.

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