TELECOMMUNICATIONS INTERCEPTION BILL
- Bob Leonard
The new Telecommunications (Interception Capability) Bill 2003 is one of a suite of new legislative initiatives hastily cobbled together to quell terrorism via the massive erosion of personal privacy. The Anti-Bases Campaign has made submissions on the lot and continues to report on them in Peace Researcher. And Green MP Keith Locke has continued his invaluable contributions in this vital area with potent and meaty speeches in Parliament every time one of these Bills raises its ugly head.
Below is a summary of important points about this Bill that were raised by Keith. We include them here because our submission (below) is more narrowly focused.
· The Telecommunications Bill (2003) is a companion bill to the section in the Crimes Amendment Bill (No. 6) that gives the Security Intelligence Service (SIS) and Government Communications Security Bureau (GCSB) the power to intercept emails. See ABC’s submission on the Crimes Amendment Bill, No. 6 at http://www.converge.org.nz/abc/subswain.html
· This Bill implements the Crimes Amendment Bill, requiring telecommunications operators to have all their systems intercept capable (at the service of the spies and Police).
· It is driven by what agencies in other countries (namely the US, UK and Australia) are doing, and what they would like (read "order") us to do.
· The big downside of these Bills is twofold: gross invasion of privacy and the potential for misuse of these intrusive powers by Government agencies, i.e., spies and the Police.
· The powers are particularly dangerous for the two Intelligence agencies because they have so little accountability to the public or Parliament.
· Because of the ease of interception it will be tempting for Intelligence agencies to abuse their powers and intercept the communications of people like Aziz Choudry - that is, political dissenters. The Choudry case has been reported in detail in past issues of PR. It is summarised on the ABC Website at http://www.converge.org.nz/abc/choudry.htm
· There are problems using e-mail intercepts in court evidence, in that e-mails can be much more easily doctored, in an untraceable way, compared to paper documents or voice intercepts.
· We now have on our statute books the Terrorism Suppression Act, where someone can be designated a terrorist on the basis of "classified information", perhaps from electronic intercepts, which the accused person is never allowed to see at any subsequent stage in court appeals.
· There is a warrant system in the Bill, but it has problems. There is no proper audit system for the warrants and there is no system for telling people subsequently that they have had their e-mails intercepted, and there is no proper system particularly for the SIS, to destroy the evidence that has been collected on people when it is no longer required.
The Anti-Bases Campaign has opposed the Government Communications Security Bureau (GCSB) and its Waihopai station actively since 1988, shortly after the construction of the base was announced. This submission deals with the provisions of a Bill that facilitates interceptions. But it should be read in the context of our total opposition to the very existence of the GCSB, its secretive intrusions into personal privacy and its close ties to the international Intelligence community under the UKUSA Agreement (which shares global electronic and signals intelligence among the Intelligence agencies of the US, UK, Canada, Australia and NZ.Ed.).
The Anti-Bases Campaign is clear on the fact that the Telecommunications Bill under consideration deals with telecommunications service providers and thus may not have great relevance to our main concerns about the activities of the GCSB and of its signals intelligence (SIGINT) interception facilities at Waihopai in particular. We are also aware of legal constraints on the GCSB to matters ostensibly having to do only with foreign intelligence. But we do have considerable concerns about the Bill.
We object to legislation that provides for the technical means for Intelligence agencies effectively to hack into computers. We object to the forced involvement of private telecommunications services in spying on the communications of New Zealanders. The satellite interception capabilities of the Waihopai base already allow virtually complete and unaccountable interception of emails, faxes, telephone calls, and data transfers transmitted by satellite. No warrant system can possibly operate to protect against privacy violations at Waihopai. And we have no confidence that privacy will be protected, either by warrants or “other lawful interception authority” under the provisions of the Telecommunications Bill.
Privacy is to be protected by so-called “lawful authorisation”. This reassurance is baseless. The GCSB, whether spying via satellite interception or computer hacking, is exempted from a key Information Privacy Principle in the Privacy Act. The GCSB is exempted from the 4th Principle which reads in part: “Personal information shall not be collected by an agency by unlawful means…” (emphasis added). How can any citizen of New Zealand have confidence in the control and oversight of an agency that is effectively exempted from acting lawfully?
Privacy is to be protected by excluding “telecommunications that are not authorised to be intercepted”. But the GCSB is authorised to intercept “foreign communications” without any clear and unambiguous definition of “foreign” in any relevant Act, including the GCSB Act (2001) and the Crimes Amendment (No. 6) Act (2002) (including its Supplementary Order Paper exempting the GCSB from anti-computer-hacking provisions in the Act). What does “foreign” mean in the context of GCSB spying? If you ask the director of the GCSB under the Official Information Act, as ABC has done, he will refuse to answer in the name of national security. It is all too obvious that the reason for this deviousness is that a New Zealander in New Zealand is very likely to be on one end of a so-called foreign communication and be swept into the computer hacking or SIGINT interception net.
There is a pitiful attempt in the Bill (Section 14) to protect third parties: “Duty to minimise impact of interception on third parties. Every person who, under interception warrant or any other lawful interception authority, intercepts or assists in the interception of a telecommunication must take all practicable steps that are reasonable in the circumstances to minimise the likelihood of intercepting telecommunications that are not authorised to be intercepted under the warrant or authority”. That wording is so weak and unenforceable it is hard to believe it is serious. It is yet another illustration that protecting privacy while opening the floodgates of interception is impossible. In the name of fighting terrorism and crime, privacy protections are lost in all but name.
And for what good reason are our privacy protections being progressively eroded and our private communications being opened to Intelligence agencies with no effective oversight or accountability? No convincing case has yet been made by Government as to why so much new intrusive power must be vested in the police and Intelligence agencies. The Anti-Bases Campaign believes that the Telecommunications (Interception Capability) Bill, and the several recent pieces of legislation related to it, are overreactions to the terrorist events of September 11, 2001 in the United States and are not driven by genuine and supportable law enforcement needs in New Zealand.
Our submission has focused on the GCSB. But our concerns apply to the Security Intelligence Service and the Police as well. The ABC believes that increased powers of surveillance and interception would further erode the fundamental rights of all New Zealanders to engage in research, education and non-violent protest whether or not the Government agrees with them. Exercising these democratic rights must not lead to increased intrusions into privacy based on official suspicions of terrorist or criminal intent. Terrorist and criminals will find it easy to evade the prying eyes and ears of the spies and Police. Innocent private citizens will not.
The Anti-Bases Campaign believes this Bill is without merit and should not be passed out of Committee.
Beyond The Scrutiny Of Select Committees
As ABC’s submitter I was able to testify before the Law and Order Select Committee via video-link between Christchurch and Wellington on 7 May 2003. The Committee was chaired by Labour’s Martin Gallagher who gave me a chance to briefly summarise our concerns about the Bill before questions from the members. Since ABC sees little merit in this sort of Bill, questions are usually few. But Labour’s Georgina Beyer wondered if we were at all concerned about the spread of terrorism and cited the October 2002 Bali bombing as an example. I assured her of our great concern about terrorism. But the severe erosion of human rights and personal privacy engendered by so called anti-terrorism laws being passed willy nilly in many Western states is serving the goals of terrorists while failing to stop terrorism. The ubiquitous Keith Locke was present and gave me further opportunity to explain just how useless but dangerous we believe this Bill to be. I emphasised how important it is that a Select Committee has a chance to consider this type of legislation and exert some influence over its content. Once passed into law the increased powers of the spies are well and truly beyond the scrutiny of Select Committees.