Locke Keith: Telecommunications (Interception Capability) Bill — First Reading 
Locke Keith: Telecommunications (Interception Capability) Bill — First Reading 
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KEITH LOCKE (Green) 
: 
 The Greens will be opposing this bill. This 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 a provision in the Crimes Amendment Bill (No 6) that gives the Security Intelligence Service and the Government Communications Security Bureau the power to intercept emails. This bill implements a provision in the Crimes Amendment Bill (No 6) by requiring telecommunications network operators to have all their systems intercept capable. I was on the Law and Order Committee for the consideration of the Crimes Amendment Bill (No 6) and I say virtually all the submissions were against giving the security agencies these powers. 
The Government at that time and again today has made no case as to why we need to give law enforcement agencies these powers at this time and nor has it said how many extra criminals they may catch through these new powers. It has been obvious to the Greens through this whole debate and the debate on the Crimes Amendment Bill (No 6) that this proposal is not being driven by any objectively based demand argued by any politician by the police or by any intelligence agency representative. What came out I think in Rick Barker’s introduction is that it is being driven by what the agencies in other countries are telling us they are doing and what they would like us to do.  
No one is denying that we may catch a few more criminals through these powers but there is a huge downside for us. That big downside has two aspects. One is in terms of our privacy and the other concerns how these powers could be misused by agencies of the Government. It is particularly dangerous for the intelligence agencies to have these powers because those agencies have so little accountability to the public or to Parliament. One person who submitted to the Law and Order Committee to oppose the granting of these additional powers was anti-free trade activist Aziz Choudry who had to go to court to win a case and get compensation for the Security Intelligence Service having unjustly raided 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 intercepting electronic messages it would be tempting for the intelligence agencies to abuse their powers and to 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 to be required to keep subscribers’ email records for long periods so that the law enforcement agencies could check back on whom 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 that 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 Internet service provider 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 and 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 are going to end up being made by security establishments when they pick out suspicious elements in material from the correspondence or the surfing activity of someone deemed to be ‘subversive’.”  
The problem with intelligence agencies 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 have seen George Bush’s mates using supposed intercept information to undermine the inspectors in Iraq and to try to establish a link between Saddam Hussein and al-Qaeda. Now we have on our statute book the Terrorism Suppression Act whereby someone can be designated a terrorist on the basis of classified information perhaps from electronic intercepts that that accused person is not allowed to see at any subsequent stage in any 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 the websites they are visiting or about whom they email in case the intelligence services are watching? If the police are really worried about someone they already have the power to search that person’s home and to 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 be caught by law enforcement interception systems. Such a person can very easily use cyber cafés open proxy servers get free unlimited email accounts like MSN Hotmail and get away scot-free. People like that 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 keyword trawling system. The Government Communications Security Bureau already uses that system 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. Those systems are hugely intrusive into the lives of us all because any of us can accidentally use a keyword or key name that is 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 made a submission to the Law and Order Committee. She had emailed a friend in the United States indicating that she could not watch the American presidential elections on television because she was going to a funeral. Because the email had the words “president” “election” 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—to go down the road towards a surveillance society and I say we should not go further down that road without a good reason and without good controls. It is a problem with any bureaucracy—we have found this in the past—that some police have been charged with wrongly using the information that has been obtained and that will happen more if there is email interception. The Security Intelligence Service has been shown to have acted illegitimately on occasion and in this case the Internet service providers will also be in the system too and will perhaps use the information wrongly even though under the bill the information is supposed to be confidential.  
It is good that there is a warrant system in the bill but as we found out in the Law and Order Committee there are problems with the warrant system. There is no proper audit system for the warrants there is no system for telling people subsequently that they have had their emails intercepted and there is no proper system particularly for the Security Intelligence Service 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 that Act and is required to remove information once it is no longer necessary. 
There are a lot of problems in controlling the agencies that undertake electronic interceptions. Why not rely on traditional policing which is the most valid and the least restrictive system in terms of our civil liberties?