Appellents' lawyers argue that an 'extremely powerful tool' is being turned on citizens. Photo / 123rf
By Phil Pennington of RNZ
A lawyer has called on senior judges to denounce mass police use of a private software-and-camera system to identify car number plates.
Police tap the system run by Auckland company Auror 250,000 times a year - it is in common use outside big retailers and petrol stations .
A pre-trial hearing that began in the Court of Appeal in Wellington on Tuesday is the most significant challenge yet to how police increasingly rely on it to gather evidence and investigate.
Three appellants on property, burglary and disqualified driving charges say it should not have been used against them.
If the AI-enabled camera identification was ruled inadmissible, each case might well fall over, the court heard.
Each of the appellants’ lawyers argued that an “extremely powerful tool” was being turned on citizens by police, bypassing controls that have kept traditional searches, such as warrants and production orders, in check.
Officers automatically get 60 days of hits on any vehicle plate from the system at the press of a button. The system collates this, can match it with other info and stores it.
The decade-old relationship between police and Auror was hard for even the courts to penetrate, with Auror citing commercial sensitivity for not saying, for instance, how many cameras were hooked up to it or what exactly the police paid in fees, the court heard.
Conrad Wright of the Public Defence Service labelled the software spreading throughout New Zealand a “rights-evading technology”, and called the relationship between police and Auror “surveillance capitalism”.
“A fear of systemic observation by the state destroys our sense of liberty and freedom,” Wright said.
The police had been “reckless” in deciding to risk using the system without oversight, knowing that might be proven unlawful, Wright said.
However, Peter Marshall for the Crown said there was nothing unfair or unlawful about how the technology was used to gather information.
Retailers chose to set up cameras and link to the software, and they saw it as their “community service” to report offenders to police and help each other out, too, Marshall said.
Automated number-plate recognition - or ANPR - is less controversial than facial recognition tech, but has sparked court challenges in the United States which, like the challenge in this country, have pivoted on claims of mass surveillance.
Auror recently met with a government minister about facial recognition and wanted to support big retailers to roll it out.
Last year, two district court judges ruled ANPR was not a police search and its use was okay, saying it just sped up the sorts of checks police previously had to do manually
The privacy commissioner has been consulted by police about the use of ANPR. The commissioner is represented at the current hearing.
The system has spread apace. Alongside Auror, police also use a second private system called SaferCities and tapped into the two systems more than half a million times last year, a huge jump from previously.
On Tuesday, the Crown in the Court of Appeal focused on ANPR’s use against retail crime, for instance, alerting a supermarket operator, if a known shoplifter’s car enters the lot. Retailers also compile reports to police that can include plate footage, and a suspect’s photo, name and date of birth.
Reports of shoplifting and minor theft doubled from 2022-24 to 8000 a month.
However, in a recent review, police said retail was only one use and the second was much wider.
“Police has found a wide range of other law enforcement applications,” their internal review said.
The main question for the court relates to whether the ANPR evidence must be accompanied by a warrant or production order, or if an exception in Principle 11 of the Privacy Act applies.
“I don’t envy you the task,” appellant lawyer Shannon Withers told Justices Collins, Cooke and Mallon.
The outcome of the case would have wide ramifications for how other ANPR systems and surveillance tech was used, the various lawyers said.
Another public defence service lawyer, Genevive Vear, said the scope and “creep” of the tech, not just the isolated cases before the court, had to be borne in mind.
The police had taken a “decision” to evade controls elsewhere imposed on their search powers, she argued. It was a “chilling perspective” to take that, as technology advanced, inevitably people’s privacy would be reduced.
The way the public perceived ANPR pointed to “societal disquiet” about the level of access the state had to private information, although the argument was not against its use, but how it should be controlled, Vear added.
More than once, Justice Collins questioned whether ANPR really differed so much from traditional police information gathering. Marshall said it saved police huge amounts of time - several times he cited what Auror had told the district courts.
Although Auror head Phil Thomson gave evidence at the lower court level, the Appeal Court justices on occasion pointed to the blanks facing them.
“We don’t know how pervasive this system is,” said Justice Cooke.
Vear said they had taken every legitimate step to obtain information, and hit “hurdles and brick walls”.
Although police use of the system has been questioned by RNZ using the Official Information Act, this has been constrained by the public-private nature of the system.
Updated in June, due to an error in some police figures, the internal police review found anyone with a police email address could access Auror - more than 8500 people.
“As the Auror system does not mandate the requirement for clear reporting of the purpose for police access, it is difficult to demonstrate that it is being used legitimately and for what purposes,” it stated.
“The operational effectiveness of Auror for other law enforcement purposes is not quantifiable, as it is used in a broad range of circumstances for different purposes with different outcomes and is not centrally recorded.”
The review recommended tightening up on who has access, that they spell out what they use it for and more audits.
The pre-trial hearing continues on Wednesday.
- RNZ