Telecommunications (Interception Capability) Bill

Somewhat deceptively the Committee could be misled to believe that the guts of this bill was in Part 1, but there are some interesting and potentially troubling issues lying deep within the wording of Part 2, and it is worth stepping the Committee through this. We will ask the honourable Minister, David Cunliffe, to answer this question as he might have a better idea of how its interpretation is to proceed. I would be interested in his views on this issue.

Part 2 outlines the issues relating to interception duties, but more particularly, and potentially worrying, is the issue around ministerial exemptions in clause 11. As I said earlier in this debate, I was not lucky enough to be part of the select committee that considered this bill but it seems to me that the Minister may exempt any network operator from the requirements of section 7—to recap, section 7 relates to network operators and the requirement that they have to have the interception capability; essentially the guts of the bill—if the Minister considers there are special circumstances that justify granting an exemption. Somewhat unusually, when that type of provision is put in legislation, the bill gives an example of where a Minister might consider an exemption. It states: “for example,”—not surprisingly, given that it is an example—“a pilot trial of a new network or telecommunications service”.

Members should act with caution anywhere that a ministerial exemption exists. The reason for that is disturbingly contained in clause 11(2), which states that “The Minister may grant the exemption—(a) unconditionally;”. The Minister can unconditionally grant the exemption so that those telecommunications companies do not have to meet the interception capability required, or the Minister can impose any conditions he or she thinks fit. “The exemption—(a) must be granted for a period of time that the Minister specifies; and (b) may, at any time, be varied or revoked by the Minister.”

In those circumstances we are entrusting one individual with an extraordinary power to exempt telecommunications companies from holding the required capability for those interceptions to occur. At first glance, I admit, that may not seem significant. But upon closer inspection what is clear from that particular exemption is that we are creating a whole other regime for that Minister to operate within, quite independently of the legislation that this Committee is currently debating and will more than likely approve.

Our obligation as members of Parliament is to create an environment of certain and clear law, not least because then the affected telecommunications companies know the boundaries that they are operating within. This legislation states that, putting all of that aside, it will allow the Minister to do whatever he or she likes. It will allow that Minister to grant exemptions at any point, on any conditions, and for any length of time that the individual thinks fit. This is no reflection on any one Minister—that would be too easy a target. But what I ask is how appropriate it is as a drafting exercise—and the Minister in the chair, the Hon David Cunliffe, might have a view on this—to create a legislative framework for telecommunications companies to work within to create certainty, at some cost to those companies, and then say that, putting all of that aside, we will let the Minister do what he or she likes; we will create an exemption so wide that the Minister can act outside of the provisions of this legislation, should the Minister think that is the right course of action to take.

On that point I would like to say that this is an opportunity for the Minister in the chair to stand and explain to the Committee why that is. If this legislation is necessary—and apart from the Greens nobody denies that this legislation is necessary—it seems pretty straightforward that if we are to create this interception capability, then the very least we can do is give the telecommunications industry a degree of certainty. Effectively this legislation enforces that interception capability on the telecommunications industry. We can say to the telecommunications companies that this is the way in which this regime will operate, these are the costs—which we will come to in Part 3, a fascinating part of this bill—that these companies will incur, and this is how those costs are recouped.

But in amongst all of this certainty and the framework that members have worked through by way of select committee and under urgency last night and this morning, we give it all away. We give it all away by saying that the Minister can do as he or she pleases with regard to enforcing that interception capability. As a lawyer I ask only one thing from legislation. Actually I ask two things—

💬 Darren Hughes: What’s in it for me?

No, not at all. I ask only two things. I want clarity. I do not want judicial activism. We have seen what that can do, and we do not want any more of it. We want clarity and we want certainty. I think members of the New Zealand public are quite entitled to form the view that if Parliament does nothing else—and let us face it; many members of the public question what Parliament does—it must provide clear and certain law. If we are prepared to pass through this Parliament legislation that gives the Minister such a gaping prerogative outside of the provisions of this bill, are we serving the telecommunications companies, are we serving the war against terrorism, are we serving the New Zealand public appropriately?

I see the Minister nodding. I do not think it is rough to ask him to stand and answer this simple question: “In what circumstances would the Crown envisage exercising or granting that exemption?”. There is a balance between the privacy issues that Mr Locke has raised and the security issues that I, Ron Mark, and Ken Shirley have raised, so I think the Committee is entitled to know in what circumstances the Minister envisages that the Crown would exercise the gaping exemption referred to. I do not think it is an unreasonable request of the Minister to add a small amount of clarity and certainty to the debate around the interpretation of clause 11 in Part 2.

I was very interested in Simon Power’s comments, because he was concerned about such extensive powers being granted to one person to grant exemptions under this legislation. It just reverberated in my mind that in another very current case, that of the Inspector-General of Intelligence and Security, one person is given extensive powers, operating with secret powers that generally we do not know about, and also getting it wrong. It was only after that person had expressed some apparent bias—on three counts in the court decision—that he could be taken off that case. Now he has resigned as inspector-general. But it just shows the danger of relying on individuals to get it right, particularly in the areas we are talking about, of interceptions and intelligence. So I share some common ground with my colleague Simon Power on that question. I hope he will support the moves of the Green Party to have a greater level of accountability, surveillance, and parliamentary accountability of our intelligence services, the inspector-general, interceptions, warrant exemptions, and all the rest of it.

I hope we can work together on that, to move beyond the present situation where we have only this Intelligence and Security Committee, which is made up of the Prime Minister, the Leader of the Opposition, and their appointees. So it is not an MMP committee. It does not have any real powers. It has not had any demonstrable successes. We have the particularly bad situation in respect of the appointment of a new Inspector-General of Intelligence and Security, because it is a matter of the Prime Minister getting her head together with Don Brash to make the decision. Other parties, such as New Zealand First, ACT, United Future, and the Greens, are left out in the cold on this. So I do agree with Simon Power on that matter.

Referring back to the requirements put on network operators in this bill, any operators—be they Internet service providers, be they telecommunications companies—there is a concern amongst some of them, particularly Internet service providers, that they will be required to cooperate with this, and that not only will it cost them time and money to cooperate with the agencies in this interception but they will be, in some way, compromised by this, particularly with their clients. That is a bad situation to put operators in. There are some operators—in relation to the previous debate around the Crimes Amendment Bill (No 6) as well—such as PlaNet Internet in Auckland, or Plain Communications in Christchurch—that were worried about being drawn into this surveillance net.

In fact, one of the things that has come out of the discussion with Internet service providers is that there is some advantage in New Zealand electronic communications as being seen as surveillance-free—that is, police and intelligence agencies do not get into them. It could be an international business advantage for New Zealand communications to be seen in that light. Of course it would not stop them from being intercepted, when they depart our shores, by the CIA, FBI, National Security Agency of America, or whoever. But it would be a business advantage for the Internet service providers and telecommunications people for New Zealand to be surveillance-free and not have this sort of legislation going through.

The bill actually goes beyond the Internet service providers and telecommunications companies, and does cover, for instance, hotels with their communications networks. Hotels are, for example, required to cooperate in the interception of particular customers going through their PABX phone system, etc. So it is drawing a lot of people into the net, and I image that a lot of hotel owners do not understand they will be drawn into this.

There is some advantage in the way the encryption provision is written—that is, there is no obligation on the Internet server provider or the telecommunications provider to decrypt messages, unless they have provided the encryption devices specifically to their customers. It is good that that exists, but we have to realise that this bill is not just giving powers to the intelligence services and the police but also incorporating a lot of other people in the net, and unnecessarily intruding on the privacy of the customers of Internet service providers, and it could lead to a lot of problems.

I want to take a relatively short call on what I deem to be an extremely important bill. As I am sure the Committee is well aware, nobody values the freedoms of New Zealanders or, indeed, speaks more about the freedoms of New Zealanders than the ACT party. We are, after all, a classical liberal party. We do not like the intrusion of the State into our daily lives. Yet when we live in a society we must also reflect and understand the times that we live in. From time to time, in order to ensure the freedoms, the democracies, and the lifestyle that we most certainly enjoy in this country, we might have to accept that the power of the State to intercept and to act on our behalf against those who would do us real harm is extremely important. Somebody once said that the price of democracy is eternal vigilance. I have possibly got that wrong, but I am sure that members understand the sentiment. For that very reason, we have to ensure that Big Brother, if that is the right expression, is eternally vigilant and does have the capacity to act on behalf of our free society. It is indeed a free society, despite what some in the Green Party would say about the influence of this bill and the powers it gives the State to intercept communications, etc.

I very much doubt whether New Zealanders who read Hansard or are listening to this debate would be the slightest bit concerned if the Security Intelligence Service listened into my conversation with my wife this morning about the euthanasia debate. I have not the slightest problem with the State intercepting my emails, my communications with my family or my friends. I am unsure as to why Mr Locke feels that if I get a call from overseas, I should be concerned if it comes from Yemen—highly unlikely! But if it did happen that I knew somebody in Yemen, I really would not be concerned about the Security Intelligence Service or anybody else intercepting that call and checking me out thoroughly—

💬 Ron Mark: One wouldn’t know about a member of the Greens.

Yes, that is right. Those are attitudes that, I believe, reasonable New Zealanders—indeed, 99.9 percent of New Zealanders—hold. They understand the difficulties that we in the Western World face and the need to utilise technology. It is pointless having technology if we cannot utilise it, and if we cannot give the intelligence services the opportunity to intercept on our behalf. It is worth reflecting that many, many years ago we used to erect barriers to protect our society; Hadrian’s Wall, the Great Wall of China, and the Maginot line were built. We had physical barriers in those days. But today, with technology advancement and threats, physical barriers no longer protect anybody. In fact, we need the cyberspace technologies and so on to ensure that we pick up the transmissions of terrorists, one to the other, who would seek to do us harm.

I also emphasis the point that it is not just a matter of external threats from terrorist organisations emanating from the Middle East and other areas; I personally find that there are huge threats in our society from the pervasive influence of gangs in this country. The police need interception powers to understand whatever it is that the gangs are planning to do. With the huge sophistication of the means that those people employ these days, the police must have powers to equal that sophistication, and must have the opportunity to act and reflect the concerns of our society about those internally who would do us harm. I suspect that most New Zealanders do not have a problem with that.

I would like to take a short call to respond to a point made by Gerry Eckhoff. He said he would not have the slightest problem with his emails being intercepted. Sometimes people use the argument that if they have nothing to hide, why bother? There is a number of dimensions to the Green critique of this legislation. One of them is this straight question of personal privacy. Everyone has affairs he or she wants to remain private. We use computers and emails very extensively. Our whole life is often on our computers, including very personal stuff—love life, and all kinds of things that we do not want people intruding into. It is all very well to say: “Well, if I’m squeaky clean and nothing I’m doing in private is going to get me into trouble with the law, then I don’t need to worry about whether my emails are intercepted.”, but one thing that is true in our society is that all these agencies are operated by real people with the full range of human emotions and foibles, and everything else.

One thing struck me when a former employee of the Communications Security Establishment in Canada, which is the equivalent of the Government Communications Security Bureau here, came to New Zealand a couple of years ago. He said that a lot of this interception stuff is rather boring, so when he and his colleagues came across personal titbits, sex stuff, and what not, they would watch or listen in. It is just human reality that there is interest in personal things. We have experiences going right back to the British royal family, with the “Squidgy” tapes and everything else, of people taking an interest, wrong though it might be, in the personal affairs, sex life, etc. of others.

The problem is that the technology being authorised here involves such a large scale of interception, and fine-tuning who is being intercepted through various filters—email origin, destination numbers, keyword combinations, etc.—that the surveillance can be used in non-political areas. Up to this present time I have been dealing more with the political area of interception, but even in the non-political area of personal privacy people can pry into our lives unnecessarily. There is provision in this bill for hacking by the Government Communications Security Bureau or the Security Intelligence Service—that is, remote access to one’s computer and one does not even know. That could result in people searching around in other people’s files and taking an interest not just in political things but in very personal things. We do not need to go down that track, if it is not warranted, and the Green Party does not think it is warranted in the present circumstances in New Zealand.

Although I disagree with those arguments, if I was to take them and accept them, the very first question I would ask that member is what the alternative is. What does that member offer me as an alternative that would give me cause not to vote in favour of this bill, but to support the approach that he might consider best suits our needs? The bottom line is whether we agree or disagree with the invasion of Iraq. New Zealand First made its position very clear on that issue, and I know that it surprised the Green Party. We were opposed to intervention without United Nations approval. So we have agreed on that. But the point I make is those issues are irrelevant to our dealing with the problem we have here. We have the possibility of terrorist individuals and organisations, and people involved in organised crime, using telecommunications to do their business. What is the alternative to interdiction, if we do not pass this legislation and grant these powers? I might well agree with many of the things Mr Locke said, but I am waiting for the alternative. I have a horrible feeling that when we finish up today at 6 o’clock I will still be waiting for an alternative solution.

I also want to address the points made by Mr Power, not so much to criticise him but more to prod the two Ministers who have sat in the chair and said nothing. We have had two highly paid Ministers in the chair. Mr Barker sits there doing what, I do not know. He has not offered one explanation to Mr Power. We had the other Minister, who also offered no explanation. If I might help the Minister, who is more highly paid than me, who enjoys the pleasures and luxuries of ministerial facilities, a big car, and a flash leather chair, I draw his attention to page 21 of the interdepartmental report. He might like to stand and answer Mr Power, because the answers are all there, if the Minister cares to do his job. Hello? I am still waiting. If I might prepare myself for future appointment to a ministerial position, because, quite clearly, some people do not seem very intent on doing their job, I draw Mr Power’s attention to the telecommunications interception capability departmental report dated 11 August 2003. He should go to page 21. The issue of the Minister granting exemptions is very well covered there in clauses 11 and 12. It states clearly that the Minister may exempt any network operator from the requirements of section 7. It goes on to talk about the Minister granting exemptions unconditionally or subject to conditions, and the period that they may be granted for, which the Minister must specify. But it goes on to further state that before granting, verifying, or revoking an exemption the Minister must consult with responsible Ministers.

💬 Simon Power: No one in that Cabinet!

I say to Mr Power that if he had a bank of Cabinet Ministers headed by Don Brash, would he be confident that, in consultation with those Ministers, his Minister could capably give an exemption? We are saying that the Minister will not have that power on his own; he will be required to consult.

The National Council of Women—surprise, surprise—supports the exemption clause. It said that the clause appeared to be fair to all parties. The Telecommunications Carriers Forum supports the exemption clause, and said that it thought the bill should provide some guiding principles around special circumstances, rather than provide an example. It went on about some examples in particular, and said that further exemptions should be included in that provision. It submitted that exemptions should be provided where it is not cost-effective or practical to provide an interception, or where it would damage the reputation or purpose of the product or service, and that another exemption should be where a trial or limited network or service was being provided. The comment was made that it is appropriate to keep wide the grounds for granting an exemption, to allow the legislation to be future-proof, and that providing guidelines as to special circumstances might inadvertently limit those circumstances. The recommendation that was accepted by the committee was that there be no change to the clause.