Submission on the Telecommunications (Interception Capability) Bill

From the Anti-Bases Campaign, Christchurch


8 April 2003


Introductory statement:

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.

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 SOP 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 believe 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 focussed 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.

We request the opportunity to testify in support of our submission before the Law and Order Select Committee. We further request that the Committee meet in Christchurch to hear testimony on submissions.

Thank you for the opportunity to comment on the Telecommunications Bill.

Robert L. Leonard
For the Anti-Bases Campaign.