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:13948. Text is incorporated into the Bound Volume.]GRANT ROBERTSON (Labour—Wellington Central): I was momentarily distracted by some news about one of our parliamentary colleagues Mr Banks that I am sure another colleague will confirm shortly but it seems he may have seen the light for once. I want to speak on Part 1 of the Telecommunications (Interception Capability and Security) Bill.Hon Trevor Mallard: He’s got the message unlike John Key.GRANT ROBERTSON: Yes that is right Mr Mallard. I want to carry on from where my colleague Clare Curran left off and talk particularly about a variety of matters within the interpretation clause which is clause 3 of the bill. But before I do that I want to set the context for those interpretations. That is provided by the purpose clause which is clause 5 of the bill. The purpose of the bill in relation to interception capability is to “ensure that surveillance agencies are able to effectively carry out the lawful interception of telecommunications under an interception warrant or any other lawful interception authority;”. That is the first purpose of this bill.That may sound innocuous to people listening to the House today but the reality is—Hon Amy Adams: It is.GRANT ROBERTSON: The Minister for Communications and Information Technology says quietly under her breath that it is innocuous except it is not. It is not innocuous because of legislation that has previously been passed in this House and that is the Government Communications Security Bureau (GCSB) legislation. It is worth in the context of Part 1 traversing the fact that the surveillance agencies that have been referred to—just for the benefit of the Committee John Banks has resigned as a Minister but he is still the MP for Epsom. So I am sure the people of Epsom are very grateful for that.The purpose of the bill it says in clause 5(a) is to ensure that surveillance agencies such as the GCSB can carry out the interception that they are entitled to do under law. That right of the GCSB was vastly expanded under the GCSB legislation. It is not right to simply say that this is an innocuous provision as the Minister has tried to claim when in reality the very surveillance agencies that are covered by this legislation have had their powers expanded. The way in which those powers have been expanded primarily relates to their ability to spy on New Zealanders. The GCSB legislation also expanded the ways in which that surveillance could take place.But it is essential to note that one of the main reasons that the Labour Party has a problem with this legislation is that it is legislation that operationalises the GCSB legislation. The widened powers the ability to spy on New Zealanders are given life in this bill. We believe that that legislation that was passed by this Parliament is deeply flawed and fails to strike the correct balance between protecting the security interests of New Zealand and giving New Zealanders the freedom to operate. That balance has been lost. It has now been totally lost from the intelligence agencies in New Zealand and here we have a bill that puts that into practice. That is why the purpose of this bill as stated in clause 5 is wrong.The purpose clause then goes on to talk about network operators and service providers having the “freedom to choose system design features and specifications that are appropriate for their own purposes.” Let us just read that again: “network operators and service providers have the freedom to choose system design features and specifications that are appropriate for their own purposes.” Well I am sorry to say thatthe bill does not achieve that purpose. All of the network operators and service providers who came to the Law and Order Committee said that that is the very thing they now will not be able to do because the Government is now going to be involved in the design of their networks. The Government is going to be able to have a say in how those networks operate. The Government is going to be able to monitor those networks. So clause 5(c) in Part 1 is completely impossible under the rest of this bill.It is not just Opposition politicians who are saying this. Members of Parliament have all received an open letter from theNZRise group. In that open letter the group is pleading with the Government: “Don’t rush this legislation through.” The Government has not thought it through properly. The service providers and the network operators whom this law affects are saying that they are not clear what it means. The lawyers whom those people have consulted are not clear what it means. The Minister keeps saying “Well we know what it means.” but the very people whom it affects are not able to interpret this law clearly.Those people are calling on the Government to say that this law does not reflect the purpose in clause 5. If the purpose is to allow network operators to have the freedom to choose system design features then that is exactly what the rest of the law should do but it does not. The purpose clause sounds good when you read it on a superficial level but in terms of clause 5(a) around surveillance agencies and clause 5(c) around network operators the rest of the bill fails to allow those purpose subclauses to come into action.I then want to refer back to the questions of who is a network operator and who is a service provider and that is dealt with for us in clause 3 of the bill. As my colleague Clare Curran has already made clear the definition of “network operator” is now potentially so broad as to include just about anybody. It could include your local school. I was down in the press gallery just a few minutes ago discussing the matter of John Banks and his political life. I looked around the Fairfax office—Hon Trevor Mallard: The life and death of John Banks.GRANT ROBERTSON: That is right—the very short political life remaining for John Banks. I looked around the Fairfax office and I said: “Well you’re a network operator I think. I’ve just had a look at the bill and you’re a network operator.”Hon Trevor Mallard: They get bugged anyway.GRANT ROBERTSON: That is true—that is true. In deference to some of the staff members in the Fairfax office they have already experienced what this bill is going to allow.Iain Lees-Galloway: Isn’t that how they lost the last Minister?GRANT ROBERTSON: It is how they lost Peter Dunne as well. In all seriousness they are potentially under the definition here a network operator. It is a farcical situation for a piece of legislation to come to this Committee with a definition of “network operator” that could take into account schools that could take into account offices. It is the kind of loose legislation that this Government unfortunately is renowned for and it should not be going through this Parliament.I refer again to the open letter fromNZRise. It has made I think a very interesting statement here. It said: “The Bill places onerous obligations upon network operators. That term is defined through a tangled web of definitions drawn from the Telecommunications Act and then amended.” I could not agree more with that statement. The letter goes on to say the “definition’s second limb specifies that a network operator is a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service.” If you then add in all of the other definitions it is essentially anybody who is supplying another person with the capability to provide goods services and equipment that enable or facilitate“the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign”. Just pausing there at that point—Hon Trevor Mallard: Well I am because my kids use the thing at home.GRANT ROBERTSON: Trevor Mallard is a network operator. That is a frightening thought for all of us. Trevor Mallard is a network operator. Under this bill we are potentially all network operators because of the “conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign”. If we enable that when a parent sets up a network inside their home for their children to be a part of they are now captured by this definition of “network operator” that is here. It is a farcical situation to have a definition like that.I am not suggesting necessarily that the Minister’s intention is to capture a family’s network at home but the bill is clearly poorly drafted in that regard. Or if it is not and it is the Minister’s intention then all of the fears that New Zealanders have about the expansion of powers of surveillance agencies have come to pass.So that is why we have Supplementary Order Paper 370 to revise the definition around “network operator”. We need to ensure that New Zealanders have the freedom to communicate with one another in the way that we do in the modern world. That means law that is appropriate and that balances the need for security and the freedoms and rights of New Zealanders. The definition of “network operator” that is contained within clause 3 of this bill is woefully inadequate it is far too broad it captures far too many New Zealanders it creates enormous uncertainty among the public and among the telecommunications industry and the Minister must change that definition.The other definitions that we have got particular concerns about within clause 3 include that of a “service provider”. There was in fact an addition in the Law and Order Committee to say that a service provider meant anyone from within or outside New Zealand providing or making available in New Zealand a telecommunications service. This is an enormously wide definition of what a service provider is taking in people not only in New Zealand but outside New Zealand. I am not even sure that the law can do this and I think that that clause should also be altered.