The police are looking to expand their use of a controversial evidence storage system run by an American company that supplies them with tasers.
The company, Axon, was recently pilloried in the US for suggesting mounting stun-guns on drones at US schools in response to the shooting at Uvalde, Texas.
Several lawyers, who have to sign up to Axon and whose access to the police evidence it stores is tracked, say the use of the system in this country is bad for defendants.
"It involves the defence preparation of a case - it's not something the police should be privy to," said Jonathan Hudson, a South Auckland lawyer.
His access to family violence case evidence has been controlled by the Axon system since it was expanded in 2017 to include victim interviews.
Lawyers cannot make any recording of any footage, and say it is difficult to show to clients in custody who have no internet.
The police have used Axon's tasers for years - Axon, when it was called Taser International, invented the taser.
In 2010, they became Axon's first major client worldwide to also lease access to its data storage system, evidence.com, to store the taser footage.
This storage. rather than the taser, has since become Axon's focus as a money spinner, but has provoked controversy over where the public data is ending up.
Now police here want to go further, telling RNZ a trial was "currently under way in relation to its use for the storage of Air Support Unit (Eagle [helicopter]) footage".
"Testing is also taking place to see if the Axon/evidence.com system can be utilised for other forms of interviewing."
They say they are consulting the Justice Ministry.
The Privacy Commissioner has not been consulted. The Police Minister's office said the minister "has not received any info on this".
Lawyers were briefed in Manukau about the 2017 expansion of the system into family violence cases.
One, who spoke anonymously to RNZ via the Criminal Bar Association, said "lawyers were very unhappy in general.
They "did raise concerns at the time about police knowing when you were watching it and how many times - and couldn't understand why that was necessary.
"But we were basically told tough luck," the lawyer said.
Terms of agreement tied to American law
This grants them "limited, revocable" access, with any dispute to be decided in Maricopa County, Arizona.
Upper Hutt lawyer Michael Bott signed up recently to get taser footage in a case - then thought again.
"My client is entitled clearly to this disclosure... yet I've got to make myself liable in Arizona. It's crazy."
The system keeps a comprehensive metadata trail, listed on 'evidence audit trail' forms with the Axon logo on one side, and the Police logo on the other.
Police told RNZ this tracks:
- Original insert of the footage to system
- Every instance of access to the evidence
- Who accesses it and when on every occasion
- When the evidence was streamed
- "Every instance of the video being shared with other parties, including the date, time and account details of the person shared with"
Bott said this last could be an expert witness for the defence he does not want police to know about - and which they would not, under the old system of police providing a disc that he could take away and access privately.
Both Bott and Hudson say police did not tell them about the metadata tracking.
"That's definitely something we should have been made aware of," Hudson said, adding he only knew because RNZ told him.
Bott said: "They don't tell you that when you're going on to the site, you're making yourself liable to United States tort law, [or] that you're leaving a data trail that they can check up on.
"It's a complete erosion of the right of a client to the protection of legal privilege."
Complaints over system accessibility
Operationally, the data system was called "terrible and inconvenient" by Bott, who spoke via the Criminal Bar Association.
"We are beholden to the police when and where we can access the videos.
"The format is such that you have to open every link to find the video you are looking for as each video is a bunch of numbers and no name."
Site access expires after six months. This was much less time than most cases take and then "[you] have to beg to get access again", they said.
Police had suggested the custody access solution was to book an audio-visual link then "hold your laptop up".
Hudson, too, said this would not work well.
"The requirement that complainant statements are accessed through this system, restricts defendants' ability to prepare their cases and access justice through access to information that will be used against them at trial," Hudson said.
Axon says on its website that "as the world rethinks the future of law enforcement, Axon's technology will play an increasingly important role in how society functions".
Its chief executive Rick Smith told The New Yorker in 2018, "We are the tech company that's going to make the world less violent."
The police say they did a privacy impact assessment back in 2017. RNZ has asked for a copy.
The Acting Privacy Commissioner says she has not been consulted about police use of Axon.
"Best practice would be that agencies consult with us when initiating a new technological tool or expanding the scope of an existing tool or programme," Liz MacPherson said in a statement.
In the US, Axon has been giving away body cameras to many police departments in exchange for software licensing and footage access fees in perpetuity - provoking questions about the relationship that forges, and others about if the footage really is tamper-proof.
Here, a police report shows they already took up an offer by Axon to expand the service for free.
"The product was proposed for use by the supplier at no extra cost to police and is a simple way to receive and store digital photographic evidence from a witness to an incident," it said.
However, the report shows one reason police have not pursued body cameras is over questions about data storage.
Corrections uses Axon body cameras already.
The New Zealand police relationship with Axon since 2017 extends to a senior officer and a deputy chief executive going to Axon events in the US for several days, with the company paying for airfares and hotels.
Bott said defence lawyers were being asked to play second fiddle to a "cosy contractual relationship".
The Police Minister's office said the minister had not been briefed about expanding evidence.com.
In the US, Axon in 2020 said it had 37 million hours of bodycam footage and had averted 200,000 potential deaths from police deadly force.
Also, evidence storage freed up police from time-consuming report writing, it said.
Axon declined to talk to RNZ.
"It's Axon's policy to not comment on customer contracts or orders," it said.