 Electronic Surveillance
by Graham Maranda
This article provides you an overview of electronic surveillance including the requirements at
law concerning its use along with some pros and cons of these investigative tools.
TYPES OF SURVEILLANCE
1. Electronic surveillance comprises two major forms. One is
telephone interception and the other is listening device. Explaining it simply, telephone interception is
the live capturing and recording of telephone calls into or out of a specified landline or mobile telephone
number. Listening device is a 'bug' planted in a specified place (house, commercial building, motor
vehicle or other location) for the purpose of capturing and recording conversations between any number of
persons.
The capturing of conversations (telephone intercept and/or listening device) must be lawfully
approved if any captured conversations are to be used as evidence in a court of law. Moreover, the use of any
electronic surveillance without lawful authority is unlawful and subject to judicial punishment. Basically, only
law enforcement bodies can capture conversations without the approval / knowledge of the person. If you are
writing a story that includes use of electronic surveillance, please consider researching to ensure
authenticity. It is only recently the Queensland Parliament legislated use of electronic surveillance by
their state police.
2. Physical Surveillance is where the target (suspect and/or premises)
is placed under visual surveillance by a Surveillance Team. Films commonly depict surveillance teams in
action. These teams conduct direct visual surveillance supported by the use of note taking (audio or written),
still photography and / or video recording.
REQUIREMENTS AT LAW
Telecommunications (Interception and Access) Act 1979
(Commonwealth)
For a telephone intercept to be authorised, the law requires that the person using the telephone
service is the person under investigation or directly associated with the person under investigation.
Application is made to a Judge (of a court created by Parliament). The Judge requires, on sworn oath,
information about what other investigation methods have been employed so far, how much benefit would be gained from
the use of the interception method and how much it would likely invade the privacy of any person or
persons.
Information gained from an intercepted communication is not allowed to be communicated to any
other person. In fact, information gleaned this way must be exempted under the Telephone Interception Act so it can
be lawfully given in evidence. Additionally, there are many regulatory requirements concerning how many days
a telephone intercept can run, how the intercepted conversations are stored, and who may access them (only a select
number of investigators on the case along with a few technical staff). There is also strict requirement to
discontinue intercepting if that service is no longer used by the targeted person/s (for example, the target has
been arrested).
Before you go creating a telephone intercept scene where your villain is implicated in the theft
of a box of almond croissants, be aware that interception is only authorised where the offence being investigated
falls within the definition of 'Serious Offence'. The 'long arm of the law' is not so long, in many cases.
So, what types of offences are considered serious at law?
A quick layman's definition is: offences punishable
by imprisonment for life or for a period of 7 years or more, and involves the loss of a person's life; serious
personal injury or serious risk of personal injury (e.g. kidnapping); serious damage to property endangering the
safety of persons; serious arson; trafficking drugs; serious fraud; serious loss of revenue to the Commonwealth,
State or Territory; Bribery or Corruption; Child Pornography and Money Laundering.
Problems Associated with Interceptions
The law is clear in stating that the investigator may not divulge that a telephone is
intercepted. To disclose this or any information gathered from an intercept is a criminal offence. You may
recall the Bulldogs Rugby League matter investigated by the Police Integrity Commission where charges were
recommended against two high ranking police because, in a meeting with Bulldogs Chief Malcolm Noad (April 5, 2004)
those police communicated information to Noad that was obtained from a telephone intercept upon a Bulldogs
player.
Similarly, when investigating a serious crime (murder, kidnapping, sexual assault or armed
robbery) the law compels that you do not disclose to the victim's immediate family how the investigation is
progressing, where electronic surveillance is involved. A good way to view the situation is through the
theory of 'six degrees of separation', which suggests that everyone is only six 'human' steps away from any other
person in the world.
Another issue with electronic surveillance is that it is 'resource intensive'. Human resources
must monitor, assess, log and transcribe the captured information. Let's say, while monitoring conversations
it becomes apparent that a totally separate crime is likely to be committed (such as bashing a crime
opponent). Resources would have to be deployed to assess the risks and then take preventive action to ensure
this proposed criminal activity does not occur. Electronic surveillance can uncover so many dilemmas, the
situation can turn into 'Welcome to my Nightmare'. You as writer may dream your wildest nightmare; it most
likely has occurred in real life.
Surveillance Devices Act 2007 (New South Wales)
|image2|This new act replaces the Listening Devices Act 1984 (NSW). A Surveillance
Device includes a listening device, optical surveillance (video) device, tracking device (global positioning
monitor) and data surveillance (computer tracking) device. A Judge of the Supreme Court may issue a warrant
for any of these devices, and a Magistrate is authorised to issue a warrant for a tracking
device.
A law enforcement officer (NSW Police, ICAC, NSW Crime Commission or Police Integrity Commission)
can apply for a surveillance device warrant if that officer on reasonable ground suspects or believes a relevant
offence has been, is being, is about to be or likely to be committed and the use of such device or devices is
necessary to enable evidence to be obtained concerning the offence or the identity or location of the
offender.
Therefore, investigators can apply and be issued warrant to 'bug' a suspect's house, place a
tracking device in their motor vehicle, have an optical camera set up monitoring the home and place of business
along with devices in home, business and laptop computers (if authorised by the Judge). Oh, and by the way, someone
may also be wearing a 'body wire' to capture conversations. Each surveillance device is a separate application
sworn under oath by the applicant officer.
Any information gathered by use of these devices is 'Protected Information'. It is an
offence to use, communicate or publish any protected information, of course except in criminal court
proceedings. However, as with the Telecommunications (Interception and Access) Act 1979 electronically
captured information can be lawfully passed onto other agencies such as ASIO and other police jurisdictions where
further offences have been detected and relate to that other agency.
WALK A MILE IN MY SHOES
Now, to paint a picture in your mind, of electronic surveillance, sit for a minute and throw
together a re-load of your life over the past thirty to sixty days. Ponder the discreet conversations you had
on your landline and mobile telephone; consider what you received and sent via Gmail, hotmail or whatever.
When you met for a long lunch where your lips were loosened by white wine - what did you disclose or
hear? Was someone there wearing a body-wire? Were you in a private home where a bug was
installed? Each time you drove your car - did you know the tracking device recorded exactly where you had
been and for how long? Is your own house like TV's Big Brother house - perhaps with a camera in certain
rooms?
Get the picture?
© Graham Maranda
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