Insights into police surveillance and public protest

By Samaya Chanthaphavong in conversation with Lisa Caripis | 05 Feb 13
This is a follow up interview with Lisa Caripis, who Victoria Police to the Victorian Civil and Administrative Tribunal over their refusal to destroy surveillance footage of her taken at a peaceful protest in 2010. You can read the interviews with her before the trial here and just after the trial here.

The Tribunal handed down its ruling on the use and retention of footage in relation to the protest – essentially upholding the argument put forth by police that footage was required for intelligence or future planning purposes. Can you comment on the strength of the evidence provided by the police and your arguments against such retention?

The police are required under the Information Privacy Act IPP 4.2 to destroy or de-identify footage like this when it is no longer needed for any purpose. As you mentioned, two of the operational reasons they put forward for needing the footage were for intelligence purposes and for planning the police response to future protests. While intelligence gathering and planning might be legitimate purposes, the Tribunal found that under IPP 4.2 the police must “need” the footage for those purposes – there needs to be a link.

This is how one of the police witnesses argued that it was needed:

“Footage of this kind can be useful in identifying protesters who engage in unlawful activity at other protests. It can also assist police to understand the organisation of a protest and the tactics used by the group and by individual protesters. This kind of intelligence is also used in the risk management process by assisting police and other agencies to assess the threat level of the event and other similar events.” [27]

The police provided no explanation as to how the footage in question would assist in those efforts. Indeed the police witness admitted she did not have a background in intelligence analysis.

Ultimately, the Tribunal was satisfied that the police needed the footage for intelligence purposes on the basis of the statement made by the police witness that, in the context of climate change protest in the Latrobe Valley, “all information is potentially relevant”.

The Tribunal found that the footage was needed, “in the sense that it may be useful in future” (para 29-30). It is arguable, as we submitted, that finding that something “may be useful” or is “potentially relevant” is not the same as finding that it is needed for a particular purpose. The latter is more demanding. It is disappointing that the Tribunal did not take a more critical approach to the police evidence.

The thing is that it now seems that Victoria Police can effectively hold on to the footage indefinitely: based on the Tribunal’s reasoning, so long as the footage is still “needed” for those purposes and there is a likelihood of protest in the Latrobe Valley, the Information Privacy Act does not require them to destroy or de-identify the footage. This is concerning considering how easily the Tribunal was satisfied by the police evidence in the first place.

Did the Tribunal consider what, if any, distinctions that could have been made between images/footage for intelligence purposes and images/footage for public dissemination (i.e. social media or media usage)?

No! The Tribunal did not distinguish between the photos and footage taken, published and retained by the media and other protesters (including by my friends on Facebook) and photos and footage taken and retained by the police. It was partly on this basis that the Tribunal found there had been no interference with my right to privacy, or my right to freedom of expression and association. [62-63; also 76] Interestingly, this is something that a number of people have brought up. From my point of view, it makes a huge difference who is recording you.

Firstly, I think that the reasons why the police collect and keep footage are fundamentally different to the reasons why the media covers an event or why protesters take happy snaps of each other. What the media and individuals capture is likely to be quite different in character to what the police capture, as the Privacy Commissioner pointed out in response to my initial complaint. The media are not going to use their footage for law enforcement or intelligence purposes, for example.

Secondly, there is the question of what the police intend to and can do with the footage they haveve collected – and what they can glean from it when they combine it with other information available to them. In the last year alone, Victoria Police obtained access to people’s telecommunications data on over 67,000 separate occasions. They do not need to get a warrant from a court to access this kind of data. They can search for and get access to more personal types of information with a judicial warrant. The police have powers and resources that put them in a very different position to other people in society.

These issues become quite problematic if police officers view protesters with suspicion.

Can you talk a little about your impressions of the police’s characterisation of protesting and protesters?

What really struck me when listening to the police witness testimony was that they seemed to consider all people who attend protests, particularly protests about climate change, as having the capacity or potential to endanger public safety or commit unlawful and dangerous acts. Now, do not get me wrong, there have been protests that have involved activity which breaks the law, for example by committing trespass, but I am not aware of an epidemic of protest activity that has caused serious property damage let alone harm to human life.

The overwhelming impression I had of the police’s approach to their duties was that they were highly risk averse. It seemed they were of the view that whatever information they might have on protesters had to be kept just in case it became useful in the future. All information had the potential to be relevant. But while this is true, if you follow that logic to its extreme, then we might as well DNA test the entire population because surely it is possible that each of us has the potential to engage in unlawful activity at some point, however remote that possibility.

Deciding to go to a protest should not mean that you have to accept that you will now be branded a person of interest to the law.

Earlier on you believed that the case would test how well the Victorian Human Rights Charter protected the right to peaceful assembly and the freedom of expression. What are your thoughts now?

Well, the Tribunal set quite a high bar for what would amount to an interference with the Charter rights to freedom of expression and peaceful assembly. The Tribunal found that because the retention had not prevented me from participating in similar protest events, it had not had a ”chilling effect” on my rights [71]. The Tribunal found that the retention had not affected the way I exercise my rights, but rather the way I feel about exercising my rights, but this did not count as an interference with my rights. This distinction seems strange and as far as I am aware, does not have a basis in any case law.

I guess the decision in my case shows that we have some way to go before our legal system is fully comfortable in making decisions in favour of novel human rights claims.

This year we have witnessed an increased interest by the government and police in stronger surveillance and data retention reforms (such as the National Security Reform)- the result of which increasingly encroaches upon civil liberties. Do you think proposed reforms have influenced the behaviour of the police towards protestors and the findings of the Tribunal?

There have been plenty of instances reported this year of police – state and federal – specifically targeting protesters, even outsourcing intelligence gathering to private companies and getting ASIO involved. There is a long history of surveillance being used to deter protest, but the major difference now is the amount of information that is available on people, largely thanks to social media, and the rise of new commercially available surveillance technology and software.

In light of all this and the perception of protesters as posing an inherent threat to national security, the proposed changes to our national security laws to give law enforcement and intelligence agencies greater surveillance powers without also bumping up human rights protections and holding them accountable is seriously concerning.

You have previously mentioned that it has been an incredibly long process. It was almost over two years from the actual protest to the VCAT hearing. In considering the time and cost involved in bringing the matter to the Tribunal do you think access to justice is equitable?

You have certainly got to be determined to see it through! As I mentioned in the last interview, it was a long and at times isolating experience.

The good thing about VCAT is that it is a ”no costs” jurisdiction, which means that provided you have a basis for your case and act reasonably it is very unlikely that you would be ordered to pay the other party’s legal costs in the event that you lose. That made it possible for me to pursue the complaint in VCAT in the first place.

On the other hand, if I thought that VCAT’s decision was legally wrong, for purely practical reasons, appealing VCAT’s decision in the Supreme Court is simply not an option for me as it would exposes me to a huge personal financial cost and risk. Any Supreme Court appeal would involve significant costs to me, including getting lawyers and barristers to advise and represent me. Moreover, unlike VCAT, the usual rule in the Supreme Court is that the losing side must pay the other side’s legal costs, which can be considerable – and if I were to appeal VCAT’s decision, this is a risk I would have to bear myself. One way to offset this risk would be to try to convince the Court to issue a protective costs order, which basically means that the Court agrees that if I were to lose the appeal, the amount of the other side’s costs I would have to pay would be limited, because it is in the public interest that the case is brought.

However, protective costs orders have historically been very difficult to get in Victoria. Indeed, this was the reason why the challenge to Victoria Police’s agreement to give the companies who were building the desalination plant access to the information they collected on protesters had to be dropped.

In many ways, this is a very complex area of law and it would be great to get a court, rather than a tribunal ruling on the issue, but there are significant practical hurdles that must be overcome for this occur. Access to justice in this respect is really skewed in favour of parties who can afford the financial risk.

In light of your experiences and the Tribunal ruling what advice would you suggest to people involved in, or thinking of becoming involved in protesting about an issue?

Definitely go out and protest!

If you are unsure of your rights and want to get a better idea of police powers, check out the legal info sheet Surveillance at Protest and Your Rights, the Activists Rights website and learn about some practical ways of dealing with surveillance. Chat to your friends and other people who have been involved in different types of protests to find out what it is like and if it is for you.

Most importantly, do not let the threat of surveillance put you off. In many ways that is the point of surveillance (even if it is not expressly stated as such): to intimidate and deter you from expressing dissenting views, from protesting.

Remember: it is not unlawful or wrong to join with others to express your views and stand up for what you believe in. Throughout history it has been through protest that major social justice and human right victories have been achieved, environmental protections won and our democracies strengthened.