Telecommunications (Interception Capability) Bill

The Greens will be opposing this bill. The debate has been interesting, and I appreciate the caution of some of the speakers, like Peter Dunne, about the civil liberties implications of this bill. It is a companion bill to the section in the Crimes Amendment Bill (No 6) that gives the Security Intelligence Service and Government Communications Security Bureau the power to intercept emails. This Telecommunications (Interception Capability) Bill implements the Crimes Amendment Bill (No 6), requiring telecommunications network operators to have all their systems intercept capable.

The Government at that time, and today, has made no case as to why we need to give law enforcement agencies the power at this time, or how many extra criminals they may catch through these new powers.

It has been obvious to the Greens through this whole debate, and through the debate on the Crimes Amendment Bill, that it is not being driven by any objectively based demand, argued by any politician, police, or intelligence agency representative. What came out, I think, in Rick Barker’s introduction, is that it is driven by what agencies in other countries are telling us they are doing, and what they would like us to do.

No one is denying we may catch a few more criminals through these powers, but there is a huge downside for us. The big downside has two aspects. One is our privacy, and the other is how these powers could be misused by agencies of the Government.

The powers are particularly dangerous for the intelligence agencies, because they have so little accountability to the public or Parliament.

One person who submitted to the Law and Order Select Committee opposing the granting of these powers was anti-free trade activist Aziz Choudry, who had to go to Court to win a case and get compensation for the SIS unjustly raiding his place.

What is particularly dangerous about the interception of electronic messages is that it can be done on a vast scale, because of the sophistication of computer systems. Telephone intercepts were always constrained by the time and human power required to operate them.

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

Once these interception systems are put in place, as this bill provides for, they will evolve to become even more draconian.

We have seen signs of that in Europe recently. David Blunkett, the British Home Secretary wanted Internet Service Providers (ISP) to be required to keep subscribers’ emails records for long periods, so that law enforcement agencies could check back on who they had had email correspondence with. Three weeks ago, a combination of the British communications industry, the official privacy watchdog, and Members of Parliament defeated David Blunkett on this measure, but the idea of keeping people’s back emails is still very much alive on the European continent.

There are also problems with using email intercepts in evidence, in that emails can be much more easily doctored, in an untraceable way — and we heard evidence of that at the select committee – certainly when compared with paper documents or voice intercepts.

One ISP manager, Robert Hunt of Plain Communications told a Christchurch meeting in March 2001 that he was worried that email electronic evidence can be juxtaposed to make a case. He explained:

“I have had the experience of having a search warrant served on me to require my company to hand over material that was stored on our mail server — namely the residual contents of a user’s mailbox. I then saw that material put forward in a curious array of bits to try to construct a case of guilt against a man the jury later found innocent. It took technical evidence before the court that unsupportable assumptions were being made technically, before the jury could presumably see the falsity in the aura of guilt created by placing parts of emails in unfortunate juxtaposition. We worry about the way in which decisions will end up being made by security establishments when they pick out suspicious elements in material from the correspondence of the surfing activity of someone deemed by them to be ‘subversive’.”

The problem with intelligence services is twofold:

They have their own agendas, and they operate in secret so that we do not always know exactly what their agenda is and how they are twisting evidence from intercepts to make their case.

We’ve seen George W Bush and his mates using supposed “intercept” information to undermine the inspectors in Iraq, and try to establish a link between Saddam Hussein and al-Qaeda.

Now we 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.

Even if the classified “intercept” information was accurate, it could be there through no fault of the person concerned.

To quote Robert Hunt again “Today you may easily end up with a virus or Trojan in your mailer or other software that will initiate connections to the Internet, email multiple parties or push your browser to a porn site.

Even if the information the intelligence services possess about the person they are targeting is correct, do we really want a situation where people in general become scared about what websites they are visiting, or who they email, in case the intelligence services are watching?

If police are really worried about someone they already have the power to search that person’s home and look at his or her computer. Is that not enough?

The irony of the whole thing is that any real criminal with half a brain will not get caught by law enforcement interception systems. They can very easily use cyber cafés, open proxy servers, get free unlimited free web email accounts, like Hotmail and get away scot-free. They will never be intercepted by any surveillance system.

Another likely extension to the electronic surveillance system, once it is entrenched, through this bill, in Internet Service Providers, is to move beyond targeting particular individuals to a key word trawling system.

This is the system the Government Communications Security Bureau already uses through its Waihopai satellite communications interception station, which is part of the Echelon network, run by the US National Security Agency. It is also what the FBI in America’s Carnivore email interception system does in that country.

These systems are hugely intrusive into the lives of us all, because any of us can accidentally use a “key word” or “key name” being trawled for and get caught up in the net, without even knowing it.

Sometimes we do find out. This is what happened to a Wellington woman who submitted to the Law and Order Committee. She had emailed a friend in the United States that she could not watch the American Presidential elections on television because she was going to a funeral. And because the email had the words “President” “Elections” and “Funeral” in it, it was intercepted by the Carnivore system and her friend was visited by the FBI and told about that email.

We live in a world where there are too many moves and the American Government is egging us on, down the road to a surveillance society, and we should not go further down that road without good reason and without good controls.

It is a problem with any bureaucracy. We have found in the past that some police have been charged with wrongly using information obtained, and that will happen more if there is this email interception. The SIS has been shown to have acted illegitimately on occasion, and in this case the ISPs will also be in the system too, and perhaps use the information wrongly, even though under the bill they are supposed to be confidential.

It is good that there is a warrant system in the bill, but, as we found on the Law and Order Committee, there are problems with this warrant system. There is no proper audit system for the warrants and there is no system for telling people subsequently that they have had their emails 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.

There should be an amendment to the privacy principle of the Privacy Act so that the Security Intelligence Service is not exempt under the Privacy Act, so that they then have to remove information once it is no longer necessary.

There are a lot of problems in controlling agencies doing electronic interceptions. Why not rely on traditional policing, which is the most valid and the least restrictive of our civil liberties.


First Reading Speech in Parliament