Joseph Plunket: Police Commissioner's skewed view of privacy concerns

Police Commissioner Andrew Coster bristled at criticism for failing to undertake routine intelligence collection, and also for undertaking routine intelligence collection. Photo / Mark Mitchell, File

OPINION

Is it just me, or is the Police Commissioner having trouble differentiating between bomb threats against mosques and rangatahi standing on the street?

Both sit as examples of "routine intelligence collection" in the eyes of our most powerful public servant, operating with extensive statutory powers and commands a force of 14,000 people.

Andrew Coster's opinion piece, conflates two issues in the name of intelligence gathering. His arguments are not only disingenuous but make a mockery of the concept of privacy.

The Commissioner is correct when he claims that intelligence scanning cannot take place without privacy implications. The methods of and extent to which data collection can be carried out are fully capable of respecting privacy rights and allowing Police to do their job.

Taking the Commissioner's two examples, we must ask ourselves as a community whether we expect the privacy of someone planning a bombing and a child standing on a street to be treated with the same respect.

The deafness of the view is that he puts these examples at the same point on the privacy spectrum. There is an implication that if we want bomb threats to be taken seriously then we must also accept the photographing of children.

There is a far greater societal interest in preventing the harm caused by terrorism and major crime than possibly making it easier for police to identify children they claim could be suspects of low-level crime.

What are the possible harms that may come because of a police intelligence failure in these situations?

As potential harm increases, so does the level of privacy intrusion that society will accept.

The photographing of children does nothing to prevent crime from occurring. Tracking and acting against potential terror threats and major crime does. Just over two years ago, the nation saw what true intelligence failure looks like.

For some, this latest news recalls police actions surrounding the Urewera raids in 2007.

Radio NZ reported that a roadblock in Ruatoki was manned by 16 Armed Offenders Squad officers. Most who encountered the roadblock were stopped, searched, and photographed.

Following an inquiry, the Independent Police Conduct Authority (IPCA) found the roadblocks were "unlawful" – stating, "Police…cannot lead people to reasonably believe they are being detained".

This led to the then NZ Police Commissioner Mike Bush apologising to the individuals who had their mana damaged and rights violated by police. He told the Ruatoki community, Tuhoe and New Zealanders that police had learned valuable lessons. Commissioner Bush also referenced the police treatment of children.

Returning to the recent police photographing of children, could anyone honestly claim that the children who have had information taken by the police were doing so knowing that they could walk away at any time?

An interaction with a police officer beginning with a question asking about a crime could create a reasonable expectation of detainment.

Our concepts of privacy require informed consent. This was apparently absent – although the commissioner has claimed that when a voluntary photograph is taken, signed consent must be obtained from the child and their guardian.

Commissioner Coster also references the existence of "some reasonable trigger" being needed to start a conversation, and in this context, collect the data of young people.

There would be value in making these criteria publicly accessible. Media information to date suggests information has and is being collected to grow its extensive data base, namely the National Intelligence Application.

Police photographing anyone who is not reasonably suspected of a crime, let alone a child, is a breach of innate privacy rights and an abuse of state-given power. This compromises the dignity of our rangatahi and their right to solitude and bodily privacy.

Joseph Plunket. Photo / Supplied

It is difficult to hold the police to account. We do not know how much data has been collected, stored on databases easily accessed by the police, nor how long the information is held, or if it is used for any other purposes.

For voluntary data to be collected, valid consent must be obtained from the child and guardian. This consent must be informed – the potential use of the data must be communicated. It is questionable as to whether a child on a street would fully understand the extent of information provided.

The commissioner tells us this is the protocol – but are frontline officers being audited on their compliance?

The dissonance between the claims of Commissioner Coster and the evidence presented by Radio NZ is cause for serious concern. Having strong written policy means nothing if there is no internal auditing of compliance. The commissioner should not be relying on IPCA complaints to alert him to issues within the police.

We as the public must ask, "quis custodiet ipsos custodes?" – who watches the watchers?

In this case, it seems that we have been unable to rely on the police to do this themselves.

• Joseph Plunket is a fourth year law student at Te Herenga Waka – Victoria University who is currently studying data privacy.