Goff Phil: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is subject to correctionGoff Phil: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 17 October 2013. Volume:694;Page:14036. Text is subject to correction.]Hon PHIL GOFF (Labour—Mt Roskill):It is a worry that when you have a bill like the Telecommunications (Interception Capability and Security) Bill and you are debating an important part of the bill—which has been introduced under urgency has had the period of time that submitters could make submissions on it curtailed and then has finally come to the Committee where we debate the individual provisions of this bill—that the Minister in the chair the Minister of Defence is not the Minister in charge of the bill and probably does not know what is in it. That would explain why he is not taking the call. But not even the members of the Law and Order Committee who sit in this Chamber have taken a call. The idea of the Committee of the whole House stage is to enable the provisions in this bill to be thoroughly debated. I have heard Clare Curran and I have heard Grant Robertson stand up and raise legitimate questions about Part 4 of this bill and there is no response. There is no response from the Minister in the chair who is not interested and not even listening. There is no response from members on the select committee.This is a really important part. For a start it provides for network providers to be compulsorily registered. We know with this bill and the bill that it actually puts into effect which is now the Government Communications Security Bureau (GCSB) Act that there are intrusive powers. There are intrusive powers against ordinary New Zealanders because an agency in secrecy and without accountability can intrude into their private communications. But Part 4 highlights the other important intrusive powers that this bill provides and those are unprecedented powers in terms of the power of the State to direct private commercial companies to do things that the State wants but the private companies have to pay for. The first requirement in Part 4 is that companies have to be registered. [Interruption ] I am sorry?Ian McKelvie: Who paid for your last tax return?Hon PHIL GOFF: I cannot hear the member. He will have to speak louder and more clearly.Clare Curran: Take a call.Hon PHIL GOFF: In fact he should take the call. He should take the call because actually the House has had a gutsful of members of Parliament who interject from their seats but do not have the conviction to actually take the call and debate the legislation.What does this part do? First of all it requires that all network providers be compulsorily registered. Secondly it requires that every one of those companies must nominate an employee who will act on behalf of the State. That employee must get the security clearance to act on behalf of the State. Who pays for that? The State? No I am sorry; the private company pays for it. So you force companies to register you force them to nominate an employee who gets security clearance to do the Government’s work and then it involves a power of the director of the GCSB to require any information or any document that he considers necessary. So the head of the GCSB can demand of a network provider that it provides any information any document that he the head of the GCSB decides is necessary. Do the network providers have any appealagainst that? No. No they do not. They must comply or they are taken to court and they can be fined up to half a million dollars—half a millions dollars—for not complying with these provisions.The enforcement provisions are stringent. The requirements are unusual. You might say that these powers in the interests of national security could be justified. You might argue that. But the onus is on the Government first of all to demonstrate to this House and our country that it is important to have those powers that are exercised by the State and secondly that there are safeguards against the abuse of these powers. I understand and Labour understands that you need security intelligence services. We understand that there are such things as organised criminal activities and terrorist groups that the State may need to be safeguarded against. But where you start is to demonstrate that to demonstrate that these powers are justified.I would have thought that the Government would be prepared to let the critical agencies appear before our select committee—the police the GCSB and the SIS. Those agencies do the work. They could if they wanted have come to the select committee in secret or in private sessions and said that they need these powers because these are the activities that they are safeguarding against. They could have been invited. They could have been invited to appear before the Intelligence and Security Committee to make the same arguments in relation to the GCSB bill which this bill allows to be carried out. But no the Government suppressed the right or the ability of the GCSB the SIS or the police to come before the select committees the democratic institutions of this House. I have not heard one Minister or one member of the National Party stand up and justify why those agencies should not have come before the select committee and said: “This is the reason that New Zealand must have these powers.” That is the starting point. Is there a need for these extraordinary powers? Justify them. That is the role of the Government when it gives extraordinary powers to its agencies. It is to say why. The Government failed and it failed absolutely.Secondly there was the requirement—Jacqui Dean: You sit down and let me take the call.Hon PHIL GOFF: There she goes. She is interjecting from her seat as well so I hope she takes the call. I hope she is going to and then we will get a chance to respond. The other precondition was that when you give these huge powers to the State you ensure that there are safeguards to prevent the abuse of power by those agencies. That is after all why the GCSB bill came before this Parliament. It was because the GCSB was found to have abused its powers in the case of Kim Dotcom and when theKitteridge report came out it was found also to have exceeded and abused its powers against 88 other New Zealanders. So what we know from this is that there must be safeguards against the abuse of power.I want to come back to the safeguards in a minute but the next thing I want to say is this. If we really need these powers because there are organised criminal groups and terrorists out there and we need to intercept their communications does this system put into place by this bill act effectively against criminal organisations and terrorists? I asked the officials that at the select committee. I said: “Aren’t there huge loopholes in this legislation?”. For example an increasing percentage of the population these days are using over-the-top providers likeSkype. IsSkype covered in this legislation? Does it have to have interception capabilities? The answer is no. But the answer is not even no; it is “I’m sorry. We’re uncertain. We’re confused. We’re indecisive. We may put those powers in place but we won’t do it in the legislation; we will do it by regulation. We will do it in a way that does not have to come back to this House. We will do it quietly—or secretly almost. It will not come back to this House.”So first of all you do not putSkype and the over-the-top providers in and then you do not put in the small network providers if they have fewer than 4000 subscribers. This Government finally realised that even if you have got the network providers in because the communications are encrypted and the network providers do not have the means to decrypt the telecommunications messages interception of communications may not be possible. So I asked the officials that question: “Does this bill do what you need to do?” and the answer was: “No there are loopholes that you could drive an articulated lorry through.” If you are a professional criminal organisation you will know where they cannot intercept your communications and you will use those means. So why are we putting all of this effort in when the professional criminal organisations can evade the telecommunications interceptions? And there is no answer to that—there is no answer to that. You might get the dummies who use communications that can be intercepted but the professional crooks or al-Qaeda will not. They know where you can get away with not being intercepted and they will use those routes.What I am worried about with this legislation is that it will not get the real crooks but it will allow these organisations to do what the National Security Agency has done in the United States and what the Government Communications Headquarters has done in the United Kingdom and that is to follow the communications of tens of thousands of ordinary citizens who have no connection with terrorist groups or criminal groups. So we get the worst of both worlds. We do not actually stop the bad guys but we allow the scope for ordinary citizens to have their communications intercepted or recorded in metadata without having adequate protections.I want to talk about why the protections are not adequate. Well for a start the enormous power that exists in this area is—