Tuesday, 15 March 2011

Our Parliament Is Going To Allow The Unfettered Use of Human Surveillance Devices

Worryingly by degree fundamental protections are slowly being cut away from citizens slice by slice. As a matter of principle they should not. The recent Search and Surveillance Bill has been the subject of much debate, but one issue that received no press coverage was over CLAUSE 43 NO WARRANT REQUIRED FOR HUMAN SURVEILLANCE DEVICES. It was not raised in Parliament and most people have no idea what is at stake.

As a matter of principle I am opposed to the position that no surveillance warrant is required for the deployment of human interception devices. It is artificial and disingenuous to draw a
distinction between Police surveillance with a stationary snooping device, which requires a warrant and a State agent sneaking into a group by flying false colours armed with a tape recorder or even a notebook.

New Zealand Police and some State Owned Enterprises have used paid informants for years to infiltrate peace, environmental and political groups. This type of surveillance is just as intrusive and real as a device secreted by the State in a committee room. I am aware of several reports such as the following which was published 21 December 2008 in the Sunday Star Times “Activist Considers Court Action Against Police Informer”:

"PROTESTER SIMON OOSTERMAN might bring charges against police informer Rob Gilchrist for harming his case at a trial over the police use of pepper spray. The Sunday Star-Times last week revealed Gilchrist was a police informer who had spied for nearly a decade on protest organisations such as Greenpeace and animal welfare groups.

Oosterman said Gilchrist had agreed to appear as a witness for him in a case in July this year, but had turned up at court wearing a T-shirt with a gun on it. The shirt had the words “This is my Glock, her name is Susan, there are many like her, but she is mine,” Oosterman told the Star-Times. “It was a totally inappropriate and I do think it would have had an effect [on the court],” he said.

Oosterman, pepper-sprayed by police during a 2005 anti-GE protest at the Forest Research Institute in Rotorua, was awarded $5000 damages after the judge decided the police had made unreasonable use of the pepper spray. Oosterman said Gilchrist had also given exaggerated evidence and had provoked the security guards and police during the protest.

Gilchrist, who was the protest group’s liaison officer with the police even though he was working as a police informer at the time, had been “totally confrontational” during the protest. He was “pushing security guards around . . . he created a situation of tension” which in
turn led to the pepper spraying.

Oosterman’s lawyer, Graeme Minchin, said Gilchrist’s provocative appearance at the court case could have meant his client won less money in damages than he might otherwise have done. It also appeared likely that Gilchrist had broken legal privilege by forwarding to police the evidence he would be giving at the trial. “Police agents rarking up demonstrators and then going into court giving evidence that is totally counterproductive, or trying to do such – that’s another level above just merely snooping,” Minchin said. Minchin said he might lay a complaint with the Independent Police Conduct Authority or bring a private prosecution for conspiracy to pervert the course of justice.

The Star-Times investigation revealed that Gilchrist had been spying on a range of groups and had also forwarded emails from unions and the Green Party to police. The Greens and the unions have asked the government to set up an independent inquiry into police spying on political groups. Gilchrist’s role was uncovered when he asked his girlfriend, protester Rochelle Rees, to fix his computer. She found emails in it from the Special Investigation Unit, a police unit set up in 2004 to deal with terrorism and threats to national security.

Meanwhile, a former undercover police officer is concerned at police use of informers inside protest groups, saying it is a “dangerous attack on democracy”. Andrew Harland says the precise reasons that make undercover work so effective in the criminal world make it extremely dangerous when used against political groups. He said the “perception of undercover cops being everywhere” helps keep a lid on crime, but “Apply the same thinking to protest groups and what is the probable consequence?” he said. “The fear of informers is now on their minds so that legitimate protest groups are suspicious of new members and supporters are nervous about taking part in politics. Suddenly it’s harder to accept new members, fewer people have a say on political issues and our democracy suffers.”

Any small advantages in detecting possible crime were far outweighed by harming legitimate political activity. Another former police officer told the Star- Times about working as a “radical agent” – the police name for undercover officers who infiltrate political groups – in an earlier era of police spying on protest groups and universities. Two radical agents, including this officer, were instructed to infiltrate Auckland anti-nuclear groups in July and August 1983 to gather information about planned protests against the US nuclear cruiser USS Texas. One agent attended Peace Squadron meetings, monitoring plans for on-water protests and recording who was going on each boat. Another attended meetings at the “Epicentre” peace offices where anti-nuclear campaigners, including Green MP Keith Locke’s sister Maire Leadbeater, were organising protests and publicity. The officer, who personally supported the anti-nuclear cause, “felt uncomfortable” about the assignment but “didn’t have the confidence to say ‘no”‘. The police radical agents were aware that the Security Intelligence Service had “deeper” and longer-term agents in the same groups but didn’t know who they were. Radical agents were also used
during the 1981 Springbok Tour."

On 27 May 2007 the same paper revealed that Solid Energy had employed private investigation firm Thompson and Clark Investigations to snoop on environental groups camapigning to save a native snail on West Coast land. A then 25 year old student was paid money to infiltrate the group and provide reports via Thompson and Clark to Solid Energy.

With the Oosterman case above Rob Gilchrest was paid around $600 a week for infiltrating peace, environment, and animal rights groups and monitoring others. Mr. Gilchrest without a search
warrant still conducted searches from Police. He collected hundreds of emails from internal exchanges within the groups he spied on, and forwarded them to the special investigation group.

There is a real risk as in the Oosterman case above that the Police informant acted as an agent provocateur and actually created the situation that led to Police intervention. Aside from real entrapment issues, it is undeniable that these informants were State agents and were participating in state-funded spying activities that were just as intrusive as any other surveillance device.

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