Curran Clare: Telecommunications (Interception Capability and Security) Bill — Referral to Law and Order Committee Second ReadingText is incorporated into the Bound VolumeCurran Clare: Telecommunications (Interception Capability and Security) Bill — Referral to Law and Order Committee Second Reading[Sitting date: 15 October 2013. Volume:694;Page:13847. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): It is a pity that the chair of the Law and Order Committee did not spend more time talking about the bill before the House the Telecommunications (Interception Capability and Security) Bill rather than the previous legislation. New Zealand is a small stable democracy and the provisions around the privacy of our citizens should be paramount. The security of our public andour private sector entities is also paramount. The mark of a democracy is to commit to both and to always strive to achieve a balance. Unfortunately this bill before us today tips that balance and it tips that balance along with its companion bill the Government Communications Security Bureau Bill in ways that ignore the importance of citizens’ privacy. It also ignores the concerns of New Zealand - based companies in our New Zealand technology industry. It also largely ignores the concerns of the bigger internationally based internet companies that are increasingly providing services to New Zealanders over the internet and it has ignored the concerns of civil society.This is a bill that New Zealand should and does feel ashamed of and it is one that this Government has made effectively no case for. It has barely listened and it is rushing the legislation through the last stages in this week because it knows that it cannot truly defend it and it wants to get it over and done with as soon as possible. We need a rights-based approach to policy making and to legislation in this country—one that promotes New Zealand as an innovative nation in a digital environment one that guarantees the privacy of citizens’ information and one that promotes a digital economy in a fair and open transparent manner not one that is setting up barriers and that results in a chilling effect on our digital economy. That is what this bill does today.There are many reasons to vote against it. There are three main ones which I am going to touch on today in this second reading speech. Firstly this bill impinges on the rights of New Zealanders. It creates a chilling effect on New Zealand industry and it has resulted in major internationally based service providers calling into question the conflict between this bill and international law and the extraordinary increased powers being provided to both the Government Communications Security Bureau and Ministers without checks and balances to provide balance against a rights-based approach.New Zealand has the New Zealand Bill of Rights Act. We are proud of this framework and we believe it is there for a purpose. Every piece of legislation that passes through this House is meant to be vetted against the New Zealand Bill of Rights Act and the Attorney-General is meant to report any consequences. We can make comment about the rubber-stamping of that vetting process which is increasingly apparent under this Government but we should also make comment about what happens when a bill is significantly amended in the select committee and where it appears that there may indeed be conflicts with other law.Labour supportsInternetNZ’s submission in calling for a thorough test of this bill the Telecommunications (Interception Capability and Security) Bill against the New Zealand Bill of Rights Act. The New Zealand Law Society called for the same in its submission on the Government Communications Security Bureau Bill. In its sparingly used direct reporting power to the Prime Minister the Human Rights Commission determined that the Ministry of Justice’s vetting of the Government Communications Security Bureau Bill and the Telecommunications (Interception Capability and Security) Bill against the New Zealand Bill of Rights Act both fell short. Just as the Government Communications Security Bureau Bill failed to provide the adequate safeguards for people’s privacy to balance that intrusive right of the State to collect the private information of New Zealanders the Telecommunications (Interception Capability and Security) Bill as implementing legislation has failed as well and the Government has refused to add adequate safeguards.My motion put at the beginning of the second reading of this bill sought to refer the bill back to the Law and Order Committee following the amendments put forward by the Minister last night because it is our view that although most of those amendments are window dressing the impact of those amendments need to be tested against advice by officials and that there has not been discussion at the select committee about the costs and implications on networks of the capital expenditure required to comply withthe provisions of this bill. So Labour stands by its comment that the Government has been negligent and irresponsible in its approach to this bill and in its handling of the bill through the whole of the select committee process.I want to comment on two other aspects of the bill that submitters raised in the select committee and subsequently that have not been addressed and that leave us with a deeply flawed and anti-democratic piece of law which will have a chilling effect on our innovative economy. The Minister for Communications and Information Technology has claimed that this bill is merely an updating and modernising of previous legislation and that it does not increase the powers of the Government Communications Security Bureau or Ministers; rather it clarifies those powers and clarifies the duty to assist of various organisations. Well if that were true then Labour would have very little to argue with in this bill because we agree that modernising legislation is important we acknowledge that law in the digital environment is important and we agree that ensuring the security of citizens and public and private sector entities is important. We also acknowledge that the important role of our security agencies is important. But this bill does not do that.The definition of a “network operator” in the legislation is so broad that it captures any entity that has an interactive website—any entity that has an interactive website. I say that again because it is really important. It uses the broadest possible definition of a “network operator” which is “(b) a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service”. As the Minister has heard from submitters this encompasses just about everyone involved in the information and communications technology sector who supplies “goods services equipment and facilities that enable or facilitate” the “conveyance by electromagnetic means from one device to another”. That is the definition of a network operator drawn from this bill but it relies on the definition of “telecommunications service” drawn from the Telecommunications Act. So that could mean any software as a service that allows a user to share content via a social networking site such as a post to Facebook or Twitter. It would appear that any web-based platform provided that it includes those social functions that are then used to enable or facilitate telecommunication may be caught. That could include the Stuff website theNew Zealand Herald website the Television New Zealand or the TV3 websites or the TradeMe website. Are those services caught up in the definition of this bill? I am advised that technically they are. So what are the implications of this bill for our news media?It can also include a physical data centre provider that leases rack space to a virtual server provider which in turn leases space and services on those virtual servers to businesses which enables customers of those businesses to communicate electronically with each other. They also appear to be under the definition of a network operator. All or some of the businesses in that chain may be defined as network operators.Every member of Parliament today will have received a letter fromNZRise which is the industry group for the New Zealand - owned digital technology sector.NZRise wrote to all of us and asked us to vote against this bill because it says that the bill is drafted so broadly that it creates huge uncertainty and that therefore creates business and investment risk for anyone in the New Zealand information and communications technology industry or anyone considering entering it.NZRise says that the compliance obligations create chilling and unworkable effects. It says that many non-traditional telecommunications companies will technically and financially be unable to comply with those obligations so they will be faced with either being in breach or curtailing their activities. This is unacceptable. It is unacceptable that a bill should have gone through a select committee process and that the Minister for Communications andInformation Technology and the National-dominated committee should have ignored all of the advice and all of the submissions on this particular issue. If for no other reason this is a reason to oppose this bill.