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Communtity Law Manual | Activism | Surveillance and monitoring of activists by the state

Surveillance and monitoring of activists by the state

Being watched and monitored by the police and government

When is “surveillance” legal?

There are two different types of surveillance:

  • Surveillance that doesn’t require any special power to carry out because it is within the normal scope of a citizen’s rights and powers, and
  • Surveillance that requires special permission (like a court warrant) because otherwise it’s against the law.

Anyone can carry out the first kind of surveillance. We can follow someone to see where they go or find out where they live, we can observe who they visit or we can listen in when someone on the bus is talking on their phone. So long as we don’t interfere with someone’s rights (for example, their right to privacy) or otherwise break the law, those actions would be legal.

So what surveillance powers do police have generally?

Search and Surveillance Act 2012, s 46

Police do have some general surveillance powers that don’t require a court warrant. They can:

  • Watch and monitor you without a surveillance device so long as it doesn’t involve trespass (using a surveillance device would include things like watching you with a zoom lens, bugging your phone, or using a tracking device on your car)
  • Carry out visual surveillance of people and activity in public places (like streets and parks), even with a device used to improve vision, like a zoom lens.

Can the police spy on me while I’m at home, like using binoculars to look through my window?

Search and Surveillance Act 2012, s 46

If they don’t have a court warrant, they’re not allowed to use binoculars, a telescope, a camera with a zoom lens, or any other device that provides better than normal vision, to watch you when you’re inside your house or flat – so looking through your window would be outside their powers.

The law is different if the police are observing you while you’re outside in your back yard or anywhere else in your section – what the law calls the “curtilage” of your place, which means the immediate surroundings of the main building of your house or flat but within the boundaries of your property. If you’re anywhere in those immediate surroundings then the police can use binoculars or zoom lenses or other visual devices to watch you for up to three hours in any 24-hour period, or up to eight hours in total, for any single investigation or series of connected investigations.

Example: Surveillance of activists and the community

During 2006–2007, the police carried out a nationwide investigation of activists who were alleged to be involved in planning acts of political violence. While 20 people were arrested and charged with a range of offences, primarily firearms possession, many other people were raided by police and still more had been subject to surveillance or had property seized as evidence in what became known as Operation 8. When the matter came before the courts, the extent of the investigation became evident.

The surveillance included the interception of phone calls and gathering of text messages. It also included compiling call data; this is the metadata about a particular phone including the numbers contacted and the times and places of that contact. This then provided a pool of people who were also investigated. The police conducted in-person surveillance of political meetings by way of undercover officers, and used a parabolic microphone to listen to conversations inside of a house. They followed people, used hidden cameras on public roads and private property. They installed listening devices on communal Māori property including marae. They gathered travel records, banking records and details of TradeMe transactions. They seized computers from people who were not raided, and held these devices for six months or more. Later, they photographed people at court.

Much of the video surveillance was ruled inadmissible as under the Evidence Act. This was because police had exceeded their lawful powers when placing cameras. As a result of this case, the Search and Surveillance Act was passed clarifying police powers.

Police did rely on electronic evidence gathered from computers including online chat logs that had been stored on the computer’s downloaded files, but this investigation occurred relatively early in the days of Facebook, so social media apps did not feature as part of the investigation. Many people were under lengthy surveillance despite never being arrested or charged with any offence.

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