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Police push the boundaries around online identify consent forms

5 Apr 2024

| Author: Hannah Kim

The Law Association’s Criminal Law committee has been raising concerns about the Police Consent Form to Assume Online Identity since learning of the form’s existence more than two years ago. Upon being signed, the form grants the police wide access to an individual’s online persona, including social media platforms. Because of the way these social media platforms are structured, it authorises the police to peruse not only the individual’s posts and comments but also his or her past communications. Furthermore, it permits the police to conduct ongoing interactions while pretending to be the individual in question.

In its original iteration, the form’s vagueness and lack of precision immediately raised alarm among committee members because of potential privacy infringements. Pursuant to s 22 of the Privacy Act 2020 and Information Privacy Principle 1, personal information must not be collected by an agency unless the information is collected for a “lawful purpose connected with a function or an activity of the agency” and the collection of the information is necessary for that purpose.

Information Privacy Principle 3 also states that if an agency collects personal information from an individual, the agency must take any steps that are in the circumstances reasonable to ensure the individual concerned is aware of the purpose for which the information is being collected. But the form failed to specify its intended use, leading the committee to infer that its application could extend beyond what was originally its intended purpose. Introduced in 2012 by the police, the form aimed to combat offences related to children, such as exploitation and grooming, by facilitating online interactions with potential offenders under the guise of being potential child victims.

This well-intended original purpose is not what the committee is worried about. Its investigations have revealed a broader application of the form beyond its initial focus on child exploitation online. It is now being used in a variety of contexts, including fraud and homicide, and with a wider group of people such as complainants, witnesses and suspects. The concern is that the form could be treated as pro forma to obtain signatures from young people. Critical shortcomings included the absence of an expiry date on the form, allowing for the indefinite impersonation of individuals by the police. Nor does the form state that people have the right to refuse to sign or to seek legal advice. There were concerns that younger people, who are more accustomed to communicating via social media, might feel pressured into signing the form without fully understanding their legal position.

Critical report

Underscoring these concerns was a damning report issued jointly by the Office of the Privacy Commissioner (OPC) and the Independent Police Conduct Authority (IPCA) in September 2022. This criticised the police’s widespread ignorance of their privacy obligations, leading to potential unlawful photographing and/or storage of photos for intelligence purposes. At times this behaviour targeted specific groups, a practice akin to racial profiling. The committee highlighted its concerns with the OPC and lodged a formal complaint about the form’s use, culminating in a meeting with the Covert Online Investigations team. While our complaint was not upheld, it was gratifying to learn that the form has undergone significant revisions. These include introducing a definitive termination date for the form’s use, clearer usage boundaries (now specifying which social media platforms the police can access) and the requirement for a parent or guardian’s signature when the signatory is a minor. Most importantly, the revised form now clearly states that individuals have the right to seek legal advice before signing.

But despite these improvements, the committee believes more is needed. The consequences of signing the form extend beyond the individual’s online identity to potentially impact their social media connections such as “friends” or “followers” on Facebook and Instagram, who have not given consent. And let’s not forget the OPC/IPCA joint inquiry in September 2022 was triggered by a couple of aunties from the Wairarapa who took exception to police officers photographing their nephews without reasonable cause. The joint inquiry made several recommendations that have had a wide-ranging effect on police policies, procedures and training. We remain committed to ongoing dialogue with both police and the OPC. Our goal is to ensure the form (or any other policy/tool implemented by the police) is subjected to adequate oversight, preventing its misuse or application beyond its original intended purpose.

Hannah Kim is a barrister and a member of The Law Association’s Criminal Law committee

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