The NSW Police Force announced last week that it will be seeking broad new powers to access bank data without a warrant, provided that police claim to suspect that a person is engaging in criminal conduct.
If the laws are passed, they will join a raft of communications and travel data which police can now access without needing to apply to a court for a warrant.
Like many other police powers, the proposals have been justified on the basis of crime prevention, with police arguing that there is too much ‘red tape’ involved in obtaining a warrant.
But how far should we go in granting police these investigative powers, and will our right to privacy ever outweigh their needs?
Why Do Police Want To Access Your Data?
Police have expressed concerns that they are not equipped with the resources to tackle internet-enabled crime, including fraud, computer hacking and other forms of cybercrime – affectionately dubbed “Cybergeddon.”
The prospect of someone wreaking havoc on the world by hacking into public infrastructure or financial institutions might sound like something out of a Hollywood blockbuster – and in fact there have been numerous films and TV shows about cyber warfare. But according to the heads of corporate tech giants, there’s a real possibility that we could one day find ourselves in a state of technological chaos.
These views have been emphasised by police. Commander of the NSW Fraud and Cyber Crime Squad, Detective Superintendant Arthur Katsogiannis, says that tech crime ‘poses the greatest challenge to law-enforcement in the 21st century – both in terms of the risk to our national security, our border protection and the impact that it has on the economy overall.’
If our national security is so easily compromised, it might be argued that we should make the necessary investments to strengthen the security of our infrastructure, rather than simply handing police greater powers at the expense of privacy.
But there does not seem to be any discussion to this effect. Rather, police argue that existing safeguards which aim to protect the rights of individuals are posing a roadblock to cybercrime investigations.
Currently, police wishing to access an individual’s financial data must apply for a notice to produce documents or a warrant. A notice may be issued if a court is satisfied that there are reasonable grounds for suspecting that a bank or financial institution holds documents connected with an offence.
Police say that this process is too time-consuming and complex, and that they would benefit from a legislative amendment allowing a senior police officer to sign off on a notice to produce, rather than a court.
How Could This Affect Our Right To Privacy?
Unsurprisingly, not everyone is pleased with the new proposal. A report in response to the Police Force’s submission noted that it ‘would be inappropriate for a senior member of police to be given the authority,’ and that ‘there are significant privacy implications’ in granting the powers.
But the Police Force is undeterred, and has reportedly requested a full briefing to re-examine the issue.
The NSW Council for Civil Liberties (NSWCCL) has resolved to put a stop to the proposal, stating that powers that were once justified on the basis of stopping terrorism are now creeping into ‘every other field of criminal investigation.’
According to NSWCCL President Stephen Blanks, ‘What was justified originally as extraordinary powers for investigating the very worst of crimes which threaten national security…[are now] to be use for financial matters and investigations of all kinds.’
Mr Blanks has voiced concerns that granting police the power to issue notices to produce would circumvent independent judicial oversight and safeguards, which currently protect individuals from abuses of power. Given the extent of personal information that can be gleaned from snooping through financial records, it is vital that this data be afforded a degree of protection through oversight by the courts.
Currently, section 62 of the Law Enforcement (Powers and Responsibilities) Act 2002 requires an application for a warrant to contain certain information, including the grounds on which the application is based and a description of the nature of the offence. If the relevant information is not included, a court is obliged to refuse it. In assessing an application, the court is required to consider the reliability of the application, including its nature and source.
Can We Trust Police?
A recent inquiry found that NSW Police had repeatedly used false information to obtain warrants from courts. This suggests that we should not assume that police will comply with the law if granted this new power. Rather, those damning reports suggest that even greater safeguards are needed, rather than less – even where courts are overseeing an application.
The enquiry has led to a move whereby judges are now required to make a record of the reasons for granting surveillance warrants, many of which were previously granted on the basis of false information.