Robertson Grant: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeRobertson Grant: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 16 October 2013. Volume:694;Page:13969. Text is incorporated into the Bound Volume.]GRANT ROBERTSON (Labour—Wellington Central): I am sure my colleague Clare Curran will continue with her contribution on this bill the Telecommunications (Interception Capability and Security) Bill in a further call on this part. Part 2 is the interception capability part of the bill. As Clare Curran has said this is really where the balance between protecting New Zealanders’ security and protecting New Zealanders’ rights and freedoms to communicate with one another has to be put into balance. As Clare Curran has also already said in the earlier legislation that this bill amends that balance was already put there. There was an acknowledgment that network providers or network operators as they are now defined here would have roles and responsibilities around allowing for an interception capability.No matter what we might like to think about the world there are people out there who may well be wanting to do things involving cyber networks in New Zealand that are against the law and put New Zealanders in danger and therefore that capability is something that we on this side of the House accept. What we do not accept is allowing that capability to be opened up to such an extent that an enormous power now rests in the hands of the Minister of Communications and Information Technology around where that capability is used on what networks and what obligations are now on the providers of those networks.Again this is not just about Opposition politics. This is not about just getting up and saying: “This is a Government bill. We oppose it.” The Law and Order Committee heard submission after submission from those who are directly involved in the provision of internet services and the provision of networks in New Zealand that this part of the bill would have the effect of stifling innovation potentially reducing investment in New Zealand by large telecommunication companies and by the over-the-top providers that Clare Curran mentioned before and that overall it would extend out the powers of the Minister in such a way that that necessary balance between protecting our security and the freedoms of New Zealanders would go out of balance.At the select committee Microsoft came and said: “An obligation to have interception capability on a fundamentally different technology to what we have seen in the past in our view needs to be considered on its merits not swept up in broad legislation that gives wide powers to surveillance agencies and Ministers.” That is the point. It is not that Microsoft is saying it should not have any interception capability requirements upon it but that they should not be part of legislation like this which is loose poorly defined and associated with a massive expansion in the powers of the surveillance agencies in this case the Government Communications Security Bureau (GCSB) through the Government Communications Security Bureau Act and through an expansion of the powers of the Ministers. Microsoft has come along and it has said that. It has also said—and this comes to clause 39 which we can still debate because it is actually in the Minister’s Supplementary Order Paper 366 which we will vote on later on. She has decided to delete clause 39 after a massive backlash from across the telecommunications industry. But the signal sent from the Minister with clause 39 was that New Zealand was trying to in some way or other shut itself off from the rest of the world and actually cut off the possibility of innovation within the information and communications technology sector in New Zealand.It is interesting to note—and I am reading a column from theNational Business Review about the burden that New Zealand - based businesses will face. It is one thing for theMicrosofts theGoogles and the Apples of this world to come and say they do not like the burden that this bill is going to place upon them—and they have a legitimate claim there—but what about New Zealand providers? What about those who are theproviders of for instance cloud services where New Zealand actually has a very good reputation—Clare Curran: Had.GRANT ROBERTSON: Had? Well yes indeed. It had a very good reputation in terms of the development of innovative cloud technology. Well what has been said by those who provide that is that this actually over time will put huge costs on those providers and essentially make them weaker in comparison with the international cloud service providers.Here we have the National Government supposedly the friend of business bringing to the House a piece of legislation that is actually going to stifle innovation. It is potentially going to shut off interest internationally but it is actually going to stifle innovation from New Zealand companies. New Zealand businesses which will have to be able to put their services up against this law and ask whether they have the capability the New Zealand Government wants will simply walk away in my view when they see this kind of approach from the Minister. If we look at it both from the terms of those companies from overseas and companies from New Zealand the powers that are in Part 2 of this bill around interception capability quite simply put a great deal of extra cost on those companies and potentially stifle the innovation that they will be part of.In Part 2 how does this come about? Well there is a range of ways that Part 2 does this. But essentially the area that I want to focus this part of my contribution on is around clause 35 of the bill—and this is the part of the bill where Clare Curran has an amendment to establish a technical advisory board—because what we see here is the classic expansion of ministerial power. Again from a National Party supposedly all about reducing government and reducing the impact of the State we now have enormously expanded powers. Subpart 5 “Ministerial directions” states: “Minister may require service providers to have same obligations as network operators”.Clare Curran: Unprecedented.GRANT ROBERTSON: Clause 35 36 and 37 go through the way in which the Minister will do that. Everything is in the control of the Minister. There is a review provision put in here under clause 36 but it is totally within the control of the Minister. The expansion of powers alongside the complete control of the Minister is as my colleague Clare Curran interjected before unprecedented.This legislation is loose it is poorly defined and it breaks new ground. That combination is something that all New Zealanders should be very very concerned about. That is why under Supplementary Order Paper 370 we are looking to establish a technical advisory board. This technical advisory board would at least have the ability to be somewhat independent from the Minister. In Supplementary Order Paper 370 which Clare Curran has put forward the Minister appoints members of the technical advisory board only after consulting with representatives from the telecommunications industry. It needs to comprise equal representation from Government and the industry with an independent chair. Any matter referred to the Minister requesting they exercise their discretion or recommend providing an additional area of specified security interest must first be referred to the technical advisory board and it has to be established with the purpose of increasing expertise in relation to network security and consideration of proposed mitigations.At least if we have this in the law we can have some reassurance that the Minister’s increased powers will not be abused. The industry wants this. It has come to the select committee and said: “Can we have something like this?” and the Government has ignored it. Consistently throughout the process of this bill the Government has ignored the warnings of industry—ignored the warnings of the very people who provide these services to New Zealanders. It is not like they are being unreasonable. As late as the lastcouple of weeks telecommunication groups have been writing to the Minister saying: “Please can we meet with you to talk about how we can mitigate some of the problems we see in here?”. They are not walking away. They are not saying they do not want to be a part of a regime in New Zealand that provides that balance of security and the Minister will not talk to them. The Minister will not talk to them. The Minister puts up some tweaks in her Supplementary Order Paper. She gets rid of the clause that is causing her the most grief but in reality that does not change the fact that this bill breaks new ground and is unprecedented in the level of power it gives to the Minister and the expansion of powers it creates for the surveillance agencies.Yet here we are the day after the second reading with the Government trying to shove this bill through. All through this week it has been trying to get it out of the way. Well that is simply not the way to make good law. This is an area that is technical. It is difficult. It is in an area of technology that a lot of people do not fully understand. It is exactly the kind of law where there should be time taken where we should be able to get buy-in from industry and in Part 2 on interception capability the industry is crying out to be listened to and to say: “Yes we will take on our responsibilities to allow for interception capability but not at any cost and not with wide open powers for the Minister to do just as she pleases.”We would call on all members of the Committee to support Supplementary Order Paper 370 which inserts into clause 35 the provision for a technical advisory board. At least that will give New Zealanders some assurance that there will be an independent overview of the Minister’s powers. The Minister has seen fit to take out clause 39. Now is the time for the Minister to accept that there need to be some limits based on the powers. This is what industry wants from this bill. It is time that the so-called business friendly National Government actually gets off its chuff and does something to support industry.