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Mana Whanonga Pirihimana Motuhake

Wellington Police unlawfully use a smartphone application to intercept communications

9 November 2021

In 2018, Police received a complaint from an officer that in 2016, Wellington Road Policing staff used a smartphone application called Zello to listen to a group of people engaged in illegal street racing activities, communicate with each other, without first obtaining a warrant. The officer first raised the issue with his manager as a risk to Police and subsequently complained that Police failed to address his concerns. The officer also complained that Police continued to use Zello without a warrant after he raised the issue.

Police notified the Authority of the complaint, which was referred back to Police for investigation, overseen by the Authority. In 2019 the Authority reviewed the Police investigation and decided to conduct an independent investigation limited to the Police use of Zello in 2016. Police also conducted further investigation into this issue.

Zello allows a smartphone to be used as a two-way radio (‘walkie talkie’) using cell phone networks. Radio channels are created on the Zello application which allow groups of people to talk or listen to each other at the same time. Channels can be either open to the public or password protected by the person creating the channel.

On 8 February 2016, a group engaged in illegal street racing activities used a password protected radio channel on Zello to communicate with each other. The password was shared by word of mouth between members of the group.

The Wellington Road Policing group conducted an operation that evening targeting the activities of the group. Officers became aware of the password and used the password to join the radio channel and listen to the group communicate with each other. There were approximately 300 other people logged into the radio channel.

The Search and Surveillance Act requires Police to obtain a warrant to intercept a private communication. A communication is not regarded as private if any party to the communication ought reasonably to expect the communication may be intercepted by some other person without consent.

The Police investigation found it had not been established that Zello was used in a manner that required a Surveillance Device Warrant pursuant to the provisions of the Search and Surveillance Act.

Police take the view that because the password was being shared by word of mouth by a large number of people, there was a reasonable likelihood that someone who was not meant to have the information would be provided with it or overhear it. Police argue this means the people using the specific channel ought reasonably to have expected the communication might be intercepted and the communication was therefore not private, and a warrant was not required.

The Authority’s view is that the applicable test of whether a party ought reasonably to expect a communication may be intercepted, is not whether the communication is in fact private but whether the people who are parties to a communication have a right to expect it will be private.

While there may have been a significant number of people participating in the communication, the participants were potentially engaged in illegal activity and their communication was password-protected, meaning participants had a right to expect the password would be confined to the group and not passed on to others outside of the group.

The law provides protection against interception, which is what Police were doing when they logged into a password-protected radio channel. Although the password was shared with Police, Police ought to have known they could not use it to intercept the communication without first obtaining a warrant.

The Authority disagrees with Police and finds the use of Zello by Wellington Road Policing officers in 2016 to intercept communications was unlawful.

The Authority also found there is no evidence that Road Policing officers used Zello after being advised following this incident to not use it.

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