Once the e-snoop starts, who guards snoopers?

14.12.2000 KEITH LOCKE* says serious privacy issues arise from proposed laws that would allow police to intercept e-mails. Legislation allowing police to intercept e-mails and hack into computers is before a parliamentary select committee.

There are serious concerns that these new powers could be misused. Associate Justice Minister Paul Swain says they will help to catch more criminals. That may be true. You could put surveillance cameras on every street corner, and you would catch even more criminals. The key question is, at what cost to our privacy?

Mr Swain argues that we are just expanding present police and security agency powers to tap phones and open letters. However, phone-tapping and letter-opening are more controllable and constrained by the amount of labour involved.

Computer technology is such that millions of e-mail messages can be searched or screened easily. Not only law-breakers or suspects will be affected.

In fact, serious criminals can avoid being monitored. They can easily use codewords, encryption, untrackable Hotmail addresses or anonymiser services.

The police know this. Their overseas counterparts are resorting to large-scale trawling of e-mail traffic, checking for key words in messages. The FBI’s controversial Carnivore system does just this.

The e-mails of many innocent citizens are recorded, just because they accidentally use the targeted key words or because they happen to e-mail target person.

Police argue that such messages from innocents are discarded, but there will be mistakes, where people wrongly end up on a police database.

This has already happened with the American-run Echelon system that intercepts communications passing through satellites. A Canadian woman who told a friend a play had bombed ended up on a terrorist-suspect list.

New Zealand is a part of Echelon through its two dishes at Waihopai, near Blenheim, which pull down electronic data from two Pacific communications satellites. Waihopai is run by the Government Communications Security Bureau.

Mr Swain’s law would allow the bureau to conduct electronic spying inside New Zealand, aimed at foreign people and organisations.

The problem is, who defines which foreign organisations are security risks? Greenpeace has already discovered that it is targeted by the Echelon system because of its direct action on environmental issues. In debating e-mail surveillance, who will guard the guards is an important question. Two Christchurch free-trade activists, Aziz Choudry and David Small, have won court cases against the Security Intelligence Service and the police, respectively, for unwanted intrusions into their privacy.

Throughout our history, Governments have brought the security services into play against political dissenters, defining them as a threat to the state.

One of the joys of cyberspace is that it is a hotbed of dissenting voices: freethinkers challenging orthodoxy, Governments and the misuse of power.

It is not just what we put over the e-mail that can be tracked. Under the proposed law, police and security agencies would also have the right to hack into a suspect’s computer, accessing the most intimate details of his or her life.

Complaints that the legislation is a big step towards a surveillance society have fallen on deaf ears. Critics tend to be dismissed as paranoid.

However, the Government has not proved a case that the benefits of the new measure outweigh its costs in terms of privacy. No figures have been produced on how much crime is being committed via the computer or how many criminals are likely to be apprehended using the new powers.

The legislation seems to be driven not from facts, but from a desire to keep in step with the FBI and other agencies who use similar measures.

It may actually be to New Zealand’s economic advantage to stay surveillance-free. International companies may be more likely to set up here if they are not being spied on.

Our participation in Echelon, through the Waihopai station, has already put us offside with European companies. A French parliamentary committee recently complained that the Echelon system was being used by American multinationals to spy on European firms.

New Zealand firms are finding it hard to get e-commerce off the ground. Such commerce will be more acceptable to the public if the police don’t have their noses in it.

Then there are the compliance costs to be borne by internet providers if the snooping law is passed. E-mail surveillance can be done only with the cooperation of the providers, but we will not know what will be required of them until next year, when Mr Swain puts up amendments to the Telecommunications Act.

Potentially, many computer users will be caught in the surveillance net. The Government needs to explain why.