The Search and Surveillance Act 2012 has “not kept pace with developments in technology,” the
Ministry of Justice and the Law Commission said.
In their
review of the law, the government bodies also said that key aspects of the law are contained in case law and are not reflected in the act itself. This includes protection of people from “unreasonable search and seizure,” the ministry and the commission said.
The act reflects many of the recommendations the Law Commission made in its “Search and Surveillance Powers” report in 2007. The commission started work on that report in 2001. The agencies said that a lot of change has happened since then.
The agencies’ report said that the volume and diversity of data stored in electronic form has grown exponentially, increasingly sophisticated devices have become ubiquitous, cloud computing has taken off, it has become easier to hide electronic data using encryption and anonymization tools, and surveillance technologies have become readily available.
“These developments have created both opportunities and challenges for law enforcement and regulatory compliance,” the report said.
While there is now more electronic evidence, it has also become increasingly difficult for enforcement agencies to locate and gain access to relevant data.
The law was put in place to “facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values.” The act considers human rights and law enforcement values in regulating search and surveillance in New Zealand. However, this is compromised by the aforementioned shortcomings of the law, the report said.
Relying heavily on case law is not in keeping with the law enforcement values of simplicity and certainty, or with the rule of law, which requires the law to be accessible. The problem stems from the structure of the act, the agencies said. It is sometimes “silent” in relation to some investigative activities, while on others, it empowers law enforcement and issuing officers to decide all while not providing factors that these officers must take into account.
The report does not propose a major overhaul of the act. It does recommend clarification of certain parts of the act, as well as updating of other components to reflect international trends in search and surveillance law.
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