Telecommunications (Interception Capability) Bill

In the debate on the second reading, we have now had the opportunity to listen to the extensive contributions of members regarding the overall theme of the bill. It seems to me that, except for Mr Keith Locke and the Green Party, the House is more or less in agreement on the provisions of the bill. I particularly enjoyed the contribution of Marc Alexander, who gave us a bit of an insight into what went on in the minds of the members of the Law and Order Committee during the deliberations on the bill.

However, we now turn to the more in-depth and detailed analysis of the bill, which we will examine part by part. I am disappointed that the Minister in the chair, Rick Barker, was not prepared to go clause by clause, but nevertheless, we will proceed to work our way through it part by part. [Interruption] That is right. We will work our way part by part.

We begin, as it were, at the beginning, with some definitions. It is interesting that in this modern age, the definition of “number”, which we would have assumed would relate primarily to either a phone number or a letterbox number, now includes an Internet address and an email address. Telecommunications companies are being required by the bill to meet certain technological standards to ensure that the interception of messages by various surveillance agencies is forthcoming.

I am not sure whether it is easier or more difficult to intercept an email message or a telephone message, and I will certainly be interested in the Minister’s view on that. I am not sure whether Ron Mark, or perhaps the Hon Ken Shirley, could assist on that point, but I am sure the Minister will have the information at his fingertips. I do not have a clue. I am technologically inept when it comes to these things, and I would appreciate the Minister giving the Committee a guide as to whether the same technologies can be used for both those mediums. [Interruption] Mr Chairman, I can usually stick up for myself, but if this banter is going to occur across the Chamber, are we to get some order around here?

The ASSISTANT SPEAKER (H V Ross Robertson): Order!

Thank you. I appreciate your intervention. That was very helpful. I would like to see a very quick explanation from the Minister as to whether one technology takes care of all those matters defined as a “number” in clause 3, “Interpretation”, or whether there are a variety of technologies. I simply do not know the answer to that question. I am sure that it would take the Minister only 2 minutes to advise me of that.

However, as is the custom to point out in this part of the debate, the purpose and principles of the bill in clauses 5 and 6 go to the heart of the legislation. Members either hold, or do not hold, the view—and it really is a fundamental one—that the strategic and intelligence environment we live in has altered. On one side of that argument we have every party in the House, except the Greens, saying it has changed. In that camp, we also have the Australians and the British, who passed legislation long before this House got to the issue at hand. We have the Australians and the British both saying that we need new technologies to deal with surveillance requirements in this ever-changing world.

It seems to me—not unsurprisingly—that the Greens are on somewhat of a limb here. I look forward to the further contribution, in the Committee stage, of my friend Keith Locke, who will at least give the Committee an opportunity to hear the alternative view to that of Australia, the UK, and nine-tenths of this House.

Actually, this bill gives no further powers to surveillance agencies—

I am glad that the previous speaker mentioned the question of whether we have a benign strategic environment or are living in a new era of terrorism, because in my second reading speech I went through it objectively, country by country, and although I did not give the exact statistics the pattern is quite clear. It behoves members like Simon Power to come out with counter-statistics. There was greater prevalence of terrorism in the world in the 1970s and 1980s. That is clearly demonstrable. Particularly in the more advanced countries, the prevalence was much greater.

To deal with the other question, which was about which countries are invading other countries today and occupying them, there is one country that is leading the charge: the United States. That is the reality. In so far as there is a change in the environment, it is the danger from the United States invading other countries and occupying them, and leading to huge upset throughout the Islamic world.

To get on to the technological question, the technology is different in terms of intercepting emails. One of the problems is that one can intercept millions and millions of emails very easily, whereas in previous times the intrusion on privacy was limited by the technology—listening to phone calls, transcribing them, etc. was very time-consuming. In the Law and Order Committee, mobile probes were described, which can be put over a particular line to draw down particular emails from a particular person’s email address. One can, of course, go more broadly than that in terms of interception technology. Emails can be intercepted according to keyword systems or combinations of systems, which makes it even more dangerous.

I will deal briefly with the amendment proposed by Rick Barker, set out on Supplementary Order Paper 197, to the definition of “other lawful interception authority”, in which he goes over the authorisation for the different agencies. At least the police have a reporting procedure, and one can get the number of interceptions. There are various controls in relation to the police, and that, at least, is a step forward. The reporting procedure of the Security Intelligence Service is much more sketchy. It just has to report the number and average duration of interceptions. The Government Communications Security Bureau really has no reporting procedures, and that is particularly dangerous because, as the explanatory note of the amendment states, it covers the authority of the Government Communications Security Bureau “for foreign communications to be intercepted without an interception warrant or a computer access authorisation:”.

That question of computer access—hacking, remote access, or whatever one wants to call it—was condemned by the Privacy Commissioner in the Crimes Amendment Bill (No 6), which gave authorisations for that sort of thing to groups such as the Government Communications Security Bureau. There is no reason to grant that power. If there is reason to think someone has something dodgy on his or her computer—and it is happening a lot in terms of people involved in child sex pornography—we can go to that person’s residence, seize the computer, and look at it. One does not need that power of remote access. It is very spooky to a lot of people, including the Privacy Commissioner, that someone’s computer can be accessed remotely and files can even be altered, deleted, or changed. That is specific in the Australian legislation. It is not specific in this legislation, but it is implied. So one does not even know that the police or the security services have been into one’s computer.

The complaints procedure becomes very difficult, too. The complaints procedure in relation to electronic interception is quite difficult because how does one ever know one has been intercepted, to start with, even if the results of that interception, if they are wrongly used or mistakes are made, could very much affect one’s future life if one ends up on some database as being in email communication with some terrorist group, or whatever. It can be very damaging if that happens. That is one of the reasons why the Green Party thinks the downsides for civil liberties are actually greater than the upsides. Earlier speakers have said that any sophisticated terrorist or criminal can get round any electronic interception very easily. One uses throwaway cellphones and so on.

First, I want to make it very, very clear, in what will quite clearly be a broad-ranging debate and contribution on the various parts, that I understand and accept the Green perspective and that of Mr Locke. I have admiration for Mr Locke in one respect: he is always consistent in his view, and he is brave enough to express that view, no matter the criticism that may be levelled at him by myself, my party, and other parties. There are many people in this country who have put on uniforms—and I have been one—to defend Mr Locke’s and the Green Party’s right to say the sorts of things they say. I do not think he would put on a uniform to defend my right to say what I say, but I have done it for him.

But I have to say that, in all the concerns he and the Green Party have expressed about this bill, I have not heard what the alternative is. I ask Mr Locke to table in this Committee now a Supplementary Order Paper; to put up amendments that would deal with the issues that he sees are of concern. If this man and his party believe there is an alternative to this measure for stopping international terrorism, they should table it. They should talk about it. They should tell us what it is.

The sad fact of life is that terrorism is now with us. Regardless of what we may think of this legislation and the ability of the telecommunications companies to comply with it—that is, interpreting and intercepting our phone calls—that is the price we pay in a free society if we are to guarantee that freedom. The legislation is there, in terms of the orders and warrants required and the compliance that is placed upon the Security Intelligence Service, the police, or anyone wanting access to this information, and the protections are there within the High Court.

I would say to Mr Locke that he should read today’s paper. He should have a look at page B1 of the Dominion Post. The Green Party should read what has just happened in Britain, with the discovery of 500 kilograms of nitrous oxide. They should read about the 700 police, the 24 raids, and the intention of people to hit soft targets. I know that the ability to intercept my phone calls has an impact on my life, but dare I suggest that having my head blown off and spread across three city blocks would likewise have an impact on my life. If I am to provide the people of this country with the ability to go to a McDonald’s restaurant, to go to a KFC restaurant, to go to a place that is considered a soft target but an American asset, and be safe, I have to accept that some constraints will come upon us and there will be some encroachment into the privacy of our lives.

This is not wanted. This is not ideal. This is not what the men who are represented in the plaques around us commemorating the various battles they fought saw for this country. But, sadly, this is the reality of life. When there are people who are prepared to make their point by blowing up trains full of commuters, killing and maiming thousands of people, one must accept there have to be adjustments to our way of life and to some of the issues of privacy that we might have previously thought sacrosanct.

In answer to Mr Power, yes, already there is the ability to intercept and interpret emails and faxes, and that happens now. But this issue has been with our security people for some time. Every politician in this House wants a secure cellphone so that the other parties do not pick up him or her, everyone wants a secure walkie phone in the home, but someone has to provide the means to allow our security agencies to intercept calls, on the occasions when they suspect that the individual using that device is planning or involved in terrorist activities.

This is not the ideal. This is not what we foresaw 5 or even 2 years ago as being what our country would have to do. But this is now the reality of life, and if we are to be responsible about protecting our citizens, protecting our families, and protecting this nation and the people who come here—be they tourists, businessmen, or immigrants—this is necessary.

Just before I call the next member, it has been brought to my attention that we may have heard a cellphone ringing in the Chamber. Can I just say to members that they should give their full attention to the proceedings of the Committee. We should eliminate all unnecessary distractions from our duty. Cellphones should be switched off within hearing of the debating chamber. All members can be alerted to urgent messages by messengers or via the party whips. Any cellphone emitting sounds from the public gallery will be confiscated and the owner ejected from Parliament. I also refer members to Speaker’s ruling 16/2: cellphones are not permitted in this Chamber when switched on.

I would just like to follow up the exchange I have been having with Simon Power. He said that the Greens and I are out on a limb because our analysis of the situation differs from that of Australia, Britain, and the United States. To argue just on that basis—that because other, bigger countries that we have had a longstanding—

💬 Simon Power: I raise a point of order, Mr Chairperson. I apologise to the member. I realise this is probably technically not a point of order, but as a point of clarification I never mentioned the United States. I said Australia, the UK, and nine-tenths of the people in this Chamber.

The CHAIRPERSON (H V Ross Robertson): Can I just say to the member that that is out of order. There is a Speaker’s ruling about misrepresentation. If members feel they have been misrepresented in what is being said, they can take a point of order at the end of the speech and clarify it.

I take Mr Power’s clarification. If he did not refer to the United States I take that point, but I think he has done so on other occasions, and, in general, the people who run his line of argument pay great attention to what the United States Government says about these matters. One of the problems of this bill is that it is a bit of a reflex reaction to what other Governments are saying. We can even see it in the commentary: “The bill is similar to recent overseas legislation”—in Australia and the United Kingdom in particular. I think it is being driven by that rather than by any real domestic need. I explained the two terrorist incidents that have taken place in New Zealand, one of them 20 years ago and one of them 19 years ago. There is no indication that we are under any particular threat at the present time, and there is no objective reason, from the point of view of dealing with terrorism, for introducing this legislation at the present time.

I think the downsides are much greater than the upsides. Even Mr Mark said that we wished to have privacy with our own cellphones and electronic communications. That is very important, but if we want to have that privacy, we should not give the power to intercept to secret organisations that are largely unaccountable in the way that the Security Intelligence Service and the Government Communications Security Bureau are. We might say that they would not affect us and that we can trust them, but if we look around the world we see what has happened with intelligence agencies—their spying on dissidents of one type or another, on a whole range of issues. Material has come out, for instance, on the way that the FBI and J Edgar Hoover spied on all kinds of people from different cultures: black activists, Martin Luther King, Charlie Chaplin, Paul Robeson, and all sorts of people.

💬 Hon Member: Commies.

Well, that was the problem. Everyone who was a dissenter was defined as a Commie and had to come before a committee and confess he or she was communist, name friends, and all the rest of it. People were naming other people who had no political background, just to get off the hook. It was a very dangerous situation. We can say that that situation does not exist now, and that Helen Clark or Don Brash would never do that sort of thing to us, but we have to establish our legislation, and the powers we give to intelligence agencies in particular, such that they cannot be abused by a Government that has a rather vindictive approach to political dissenters. So we do not want to go down—

💬 Ron Mark: Don’t say that about Helen. It’s not nice.

Mr Mark is casting aspersions against our Prime Minister there, I think. But we do not want to go down that track of giving the agencies of Government those powers unnecessarily.

The technology matter that Simon Power referred to is very important, because it means two things. The first is that many people can be intercepted much more easily than in the past with letter opening and telephone tapping. It is actually the volume of those interceptions that creates a problem, too. There might be one or two other people in New Zealand called Simon Power, and one of them might have nefarious associations that show up in a big surveillance sweep—particularly when keywords come into it. Poor old Simon Power might be on some database, because somebody up in Whakatane who has the same name has received an email from an Islamic person in Yemen—or, possibly, even two emails. That is double trouble—that Simon Power’s name would be put on a list and all sorts of things would flow from that. All that information is exchanged internationally, so the wrong Simon Power could be put on a database in America.

I move, That the question be now put.

I have just a couple of quick points, really, in response to some of the comments from the Green spokesperson. There is confusion over a couple of things. First of all, the Greens seem to suggest we are living in some sort of benign world where there is no real threat to New Zealand’s security. That is clearly not the case. We are not isolated from the international community, and there has to be a means by which we allow our security services to be able to protect us, and give them the technological ability to do so. The delusion that the Greens seem to be under is that we are not important enough in the world to constitute any kind of threat, at all. If that is an inhibition on our future involvement in the world, then that is a price I do not think anyone is willing to pay—including the people who actually died for the establishment of the freedoms we currently have.

Meanwhile, back in this universe, let us talk about the threat from the internal side of things. There are criminal organisations out there accessing technology that we ought to be able to intercept when we need to. We do not want to allow ourselves to be so overly focused on the external threats—as real as they are—that we dismiss the internal threats that exist. There are gangs in this country, and criminal organisations in this country, that use technology, so if we have the legislative means to access their communication and to disrupt their criminal activity, then I say that that is the kind of legislation we need to support.

There are a couple of things also that have been missed in Part 1, and I want to pick them up. The first is that there are safeguards. The Green spokesperson seems to be of the opinion that once this legislation is passed, everybody’s communication will somehow be listened into by everybody else. That is not so. This bill is all about lawful interception, and about giving the capacity for lawful interception. Before that even occurs, there must be an interception warrant. In other words, there is a lawful process by which interception is made possible, and it can be possible only if we have the technological means to carry it out. Providing that process is what this bill does.

It also does another very important thing. With the pace of technological improvements, it future-proofs the process. It does that in a couple of important ways, not least of which is that it allows network operators to choose the mechanisms by which interceptions will be practicable. So we will not have to revisit this legislation every couple of years in order to give it teeth again. We will be able to pass this legislation in the assurance that it will have ongoing ability to access the technologies required in order for those interceptions to occur.

I move, That the question be now put.

There have been a number of contributions in this debate, and in many senses it seems as if it is the whole of the Committee versus the Green Party and, in particular, Mr Locke. But in many respects I would like to support Mr Locke, and express gratitude that he is making the points he is. They are very important points, and although the ACT party supports this legislation, let us not fool ourselves—these are draconian measures that impinge on civil liberties and freedoms. That is the view that Mr Locke is putting to the Committee and, to that extent, he is right. Where I believe he is wrong is in this issue—that in the current world in which we live, and given the security risks we face, there is a price, regrettable as it may be, that we have to pay as a society to ensure our freedom and security. It would seem, and the evidence is abundant, that without these measures we would have our freedoms and securities stripped from us.

There is an incredibly bitter irony in that situation. It is not a comfortable situation; it is one that, as a Parliament, we should monitor closely to make sure that safety measures and backups are in place to ensure that those measures at all times are exercised and used only in an extremely appropriate manner. Where they are not, we should be doubly vigilant to make sure that the authorities, if they do abuse the measures, are brought to account. There is, in principle, real concern with the measures, but undoubtedly, they are necessary and required.

In talking of security and freedoms, the irony is that the very nations Mr Locke seems to be defending are those that reject the Western values and ideals we enjoy and cherish. We only have to look at the Taliban in Afghanistan, at Mugabe in Zimbabwe, at any of the corrupt tribal dictatorships of Africa, or at the fundamentalist Muslim States to ask what freedoms and securities they enjoy, and compare the overarching freedoms and securities we enjoy in Western-type societies relative to other societies that generate such a threat.

Yes, under this bill any telecommunications network has to enable its systems to be monitored. It has to provide encryption codes and the like, and it is common knowledge that most telecommunications traffic is monitored. Things like key words, Echelon programs, and other such things are realities in the modern world, but, on the other side, what are the examples of the abuse of those things? I would put it to members that there are very few indeed.

We actually enjoy incredible freedoms that the technology gives us, but the price we must pay in the world we live in, with the terrorist threats we face, is that the very tools that we use in our daily lives, and which contribute to our freedom and enjoyment of life, can be used against us by terrorists and the like. These measures are necessary to curb, curtail, and eliminate those illegal activities and threats. It is that balance that the ACT party has wrestled with, and on balance we come down in support of this legislation.

The question was put that the amendments set out on Supplementary Order Paper 197 in the name of the Hon Rick Barker to Part 1 be agreed to.