The Legitimacy Of The Use Of Open-Source Information By New Zealand's Intelligence Agencies

Abstract

This paper analyses the legitimacy of the use of publicly available information by New Zealand's intelligence and security agencies, as authorised by the Intelligence and Security Act 2017. The Act establishes a legislative framework, requiring agencies to obtain a warrant before undertaking "unlawful" activities. Under the Act, agencies' collection, obtaining and use of publicly available information is considered a "lawful" activity, meaning agencies are not required to obtain a warrant. However, given the practical reality of the nature and volume of public information available to agencies following technological advancements, this position fails to sufficiently protect individual's human rights. This paper focuses on two main human rights. Firstly, the paper argues that agencies' ability to aggregate publicly available information to form revealing images of individual's crosses the boundary from public information to private information, thereby breaching reasonable expectations of privacy. Secondly, the paper argues that the collection of publicly available information by agencies could potentially be considered an "unreasonable search or seizure" under s 21 of the NZBORA, by analysing domestic and international approaches taken to novel surveillance technology. Ultimately, this paper concludes that the Act is unfit to sufficiently protect individual's human rights in the face of modern technology, thus requiring urgent legislative and political attention.