Activism
Surveillance and monitoring of activists by the state
Being watched and monitored by the police and government
When is surveillance legal?
Harassment Act 1997, s 3Crimes Act 1961, ss 216O-216Q
Types of surveillance that fall within the scope of normal social interactions and behaviour are typically legal. This includes things such as people-watching in a public place or listening to someone talking on their mobile phone while you’re both on a bus.
Some other types of surveillance are typically illegal except in cases where properly authorised (such as by a court warrant). This includes the use of some types of surveillance device and some behaviours associated with stalking or harassment.
For example, it is illegal to do certain acts in relation to a person on two separate occasions within two years, including following, watching, recording, tracking or loitering around a person while knowing that your behaviour would likely cause fear or distress to that person
However, you have a defence to charges related to these actions, if you were doing them for a lawful purpose, have a reasonable excuse or were acting in the public interest.
What surveillance powers do police have generally?
Search and Surveillance Act 2012, ss 45-48
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
- 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.
Unless they have a warrant, the police cannot:
- intercept a private conversation with a surveillance device
- use a tracking device (unless the device is installed without trespassing and for the purpose of establishing whether something has been opened, tampered with, or dealt with in some other way)
- observe a private activity in private premises
- record a private activity in private premises through the use of a visual surveillance device
- use of a surveillance device that involves trespassing on land or interfering with someone’s possessions
- watch a private activity in the area surrounding private premises, or record that activity using a visual surveillance device, for more than three hours in any 24-hour period or for more than eight hours in total.
There are, however, some very limited circumstances in which police can use a surveillance device without a warrant for a period of no more than 48 hours, if, due to time constraints, obtaining a warrant would be impracticable.
Can the police spy on me while I’m at home, like using binoculars to look through my window?
Search and Surveillance Act 2012, ss 46, 47
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. The police are not simply allowed to monitor you in your own home on the basis that they are the police.
The law is different if the police are observing you while you’re outside in your backyard 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, the police can use binoculars, 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.
The police can, however, monitor you and observe what they see and hear without a warrant if they are on your property for a lawful purpose – for example, if they are carrying out enforcement action, such as making an arrest.
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 military training exercises that involved the use of camouflage and semi-automatic weapons. 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.
