An example of a photo from an ANPR camera run by Massey University. Photo: Supplied
A lawyer for the Privacy Commissioner has told the Court of Appeal that Europe would not allow the kind of police surveillance going on in New Zealand through a private number-plate spotting network.
But the Crown argued back that police had approached the use of automated number plate recognition, or ANPR, "with a great deal of care" and were always looking to tighten up its use to comply with statutory requirements.
The Court of Appeal has been hearing the most significant challenge yet to the police's widespread and growing use of the technology. It can call up any vehicle's movements caught on CCTV within the system, over the last 60 days.
The Crown says the use of number plate recognition in public places does not constitute a search that needs a warrant or similar, but appellant lawyers say this is far too loose - and dangerous to democracy itself.
"Surveillance for purchase," the Public Defence Service's Genevive Vear tagged it.
"This may start in the public sphere but it's moving into the private sphere," she said.
The hearing ended on Wednesday with the Crown playing down the power of the system developed in what was for several years since 2015, an unpublicised partnership between police and the Auckland company Auror. The lawyers for the three appellants have been playing up the risks.
"We don't have here anything approaching a comprehensive record of a vehicle's movements," said lawyer Peter Marshall for the Crown; it was just a subset from cameras at certain retailers.
"It's not so much the number of cameras, it's how often you might appear on those cameras."
But Ben Keith from the Privacy Commissioner said even the police's own consultants had earlier expressed doubts whether the use might be unlawful.
"So it's not like it has not been put on notice."
'Public knowledge'
The appellants face burglary, disqualified driving and property damage charges.
Their lawyers say police use of ANPR to identify them - and by extension thousands of others - has only been possible by evading the routine checks put on traditional searches, such as police having to get a search warrant or 'production order'.
However, Marshall argued the information was only gathered in public places, and that the tech was not that powerful really anyway.
His offsider Linda Sullivan stressed police had been upfront about using ANPR.
"Police have taken steps to make their use of Auror and ANPR public knowledge."
Yet the hearing's two days were marked by Justices Mallon, Collins and Cooke repeatedly referring to crucial gaps in what they knew about Auror, its scale and use.
The records show that when the Court of Appeal had earlier provided a list of what it needed to know, not just the company but also the Crown had opposed this at the district court.
Vear said the Crown had accused them of "fishing" when it clamped down on the info.
'Keep pace'
Marshall for the Crown said police use of ANPR did not amount to an unlawful or unreasonable search.
What's more, technological advances could shift what the public considered private, he said.
"Tech changes can impact both sides of that balance", with people prepared to accept the trade-off against privacy in order to get more security and convenience, said Marshall.
In fact, society should rightly expect the police capabilities to "keep pace" with modern tech, and with criminals' tech, he added.
Ben Keith for the Privacy Commissoner said the onus with new tech was on protecting the public first.
But with this tech, it was so unusual there was no case law - it was networked, general, commercial CCTV cameras that did both number plate recognition and retrieved footage - "We just don't have anything like" it, Keith said.
"The short point is you couldn't have a suspicionless database like this under EU or European convention law," he said.
"You just couldn't aggregate many, many people in this way for law enforcement purposes without some cause."
He cited an American ANPR system designed deliberately to have a much "narrower view" than New Zealand's, to avoid breaching the Fourth Amendment right to be free of unreasonable searches.
Ben Keith, lawyer for the Privacy Commissoner. Photo: RNZ / Samuel Rillstone
Praised in Britain
Thousands of cameras are linked to Auror's software that automatically brings up footage of a vehicle across the last 60 days.
Police can order up their own search - and did so half a million times last year; and retailers can use it to send crime reports to police - at a rate of 10-12,000 a month. A second SaferCities ANPR system is also in high demand by officers.
Auror markets its tech here, in Australia, the UK and US as primarily for combating retail crime.
But a police review in July showed they used it in many thousands of investigations of other types, including 40,000 times in a three-month period last year to target "gangs, organised crime or drugs". RNZ has questioned if the figures are accurate.
The British government recently praised how Auror systems were cutting crime at several of the UK's big high-street retailers - "Boots, BP, Greggs, Morrisons, and M&S".
Auror regularly publicised the extent its systems were used by big retailers. Yet oddly, at the appeal court hearing, there was repeated puzzlement over whether many NZ retailers other than gas stations used it much.
'We don't begin to have the whole story'
Keith told the three judges the core question was whether police could be party to such a privately-owned technology without a statutory power in place to OK it.
The lack of warrants helped in two ways: It was not just that requiring a warrant created oversight, he said, but it also forced police to justify "in full candour" to a court what they were doing with "a court being satisified that it has the whole story".
"We don't begin to have the whole story here about this system."
The Crown argued at length, and closely tied to the three appellants' specific cases, against the notion that any type of search, let alone an unlawful one, took place. If it was a search it "only just" impinged on privacy, said Marshall.
The appellants' lawyers again and again tried to widen the lens, onto the whole system.
Linda Sullivan told the three judges the high-tech system actually produced less personal information than before, when officers used to gather it manually, by checking shop CCTV.
"Of course police obviously rigorously audit their own use of Auror to verify that police are using this data in appropriate ways," she said.
But that was not entirely the case, according to the police review in July, that said, "Auditing is undertaken on ANPR use [by police] but is not yet established for retail crime."
The PDS's Genevive Vear said the auditing was done "without a standard in place".
Sullivan had also said police were always trying to "tighten up". But the July review noted that some recommendations had been implemented "to a greater or lesser extent, however issues associated with access and insufficient recording of information about the nature of the searches identified in this review persist".
'We're here now'
The appeal in part turns on the nature of the high-tech system; the police-Auror relationship and transparency in how the public is being surveilled; and also public expectations of privacy.
Justice Mallon, on the hearing's first day, on Tuesday, had offered there was an assumption "that Mr Zuckerberg has access to anything he wants" anyway.
But Ben Keith said it was not the same thing, for a private player, like Meta's boss Mark Zuckerberg, to have access to personal information on Facebook users, versus the state having motorists' data.
Justice Collins challenged why the Privacy Commissioner was only now taking police to task over ANPR.
Keith acknowledged it had limited resources. He also noted a recent landmark Supreme Court case called 'Tamiefuna' - one so significant it has prompted the government to begin looking at a law change, as RNZ has reported - had spurred them on.
"Well, we're here now," Keith told Justice Collins.
The Court of Appeal has reserved its decision.
Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
