Alexander Marc: Telecommunications (Interception Capability) Bill — Second Reading Instruction to Committee In Committee Third Reading 
Alexander Marc: Telecommunications (Interception Capability) Bill — Second Reading Instruction to Committee In Committee Third Reading 
[Volume:616;Page:12297] 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future in support of the Telecommunications (Interception Capability) Bill at its third reading. This bill ensures that technology is not a barrier to effective national and international security standards. Amongst other things it essentially fixes a loophole in the Act passed in 1987 that allows for only voice messages to be intercepted by the authorities. This predated the widespread use of the Internet and email and so was grossly out of date. The bill places a legal obligation on network operators to have the technical capacity to intercept and monitor communications when an interception warrant is issued by the High Court and authorised by police the Government Communications Security Bureau or the Security Intelligence Service and has the agreement of the communications company. There is a process in place. 
Network operators will be required to have the capability to isolate and intercept communications authorised obtain relevant information about the cause intercept unobtrusively while protecting the privacy of other communications and obtain the information in a usable format. 
There will also be a legislative duty to assist all service providers to provide reasonable assistance to the surveillance agencies in executing an interception warrant within their technical capability and on a cost-recovery basis. Network providers have indicated some concerns over not being able to fully recover costs or compensation incurred with an interception warrant as their own staff may be required to provide technical assistance and that would take them away from their normal duties not to mention the use of premises and systems. The Government has indicated that it will pay for interception capabilities of existing fixed or mobile voice networks implemented within 18 months of the legislation being enacted not for Internet and email services at a cost of up to $3 million. This applies only to those networks in operation as at 12 November 2002 the day the bill was introduced. 
A 5-year phase-in period for other networks is aimed at helping to reduce the impact on the industry. If undertaken with general upgrades the transition time will allow network operators to continue to choose systems designs and specifications for their own purposes. Compliance costs have been estimated at $12 million over the next 5 years and a submission to the select committee from telecommunications companies although disputing the estimated cost of compliance upon further consultation with a number of other providers found that the original figure was confirmed as being reasonably accurate. 
The theory is that whenever a periodic upgrade occurs in the future the requirements established by this bill will be considered by providers as a matter of course. However if such requirements prove difficult to achieve then they might serve to inhibit the introduction of new technologies. The committee amended the bill to make it clear that network operators and service providers have the freedom to choose where and how they provide interception capability. 
 There are concerns that by creating higher barriers to entry to the industry this bill will impinge on product design development and innovation. Although this is addressed in clause 5 “Purpose” in the context of the New Zealand telecommunications environment competitors already find it difficult to compete with the monopolistic advantages held by Telecom New Zealand. In this respect the good news is that the US European countries and Australia are seeking international user requirements that would require interception capability to be a standard design feature of new technology and it is difficult for manufacturers to ignore the consumer muscle those markets can flex. 
It is worth remembering that the surveillance agency is liable to pay for the costs in each instance of assistance provided by a service provider. The select committee amended the bill to require surveillance agencies to pay the bill within 1 month rather than 2 months to lessen the financial burden on operators. The Law Commission initially suggested that those costs be recoverable through the District Courts but I am pleased to see that the onus to recover costs is clearly spelt out without the need for this kind of action. 
It is also relevant to point out that similar legislation in Australia under the Commonwealth Telecommunications Communications Act 1997 and in the United Kingdom under the Regulation of Investigatory Powers Act 2000 require network operators to cover the costs of ensuring ongoing interception capability. 
The select committee heard submissions in support of the bill from the Police Association and even representatives from the telecommunications companies that supported the intent of the bill recognising the need for interception capability to keep pace with technical advancements. United Future gave conditional support to this bill on first reading subject to scrutiny by select committee. It was our concern that this bill must not alter or increase powers of surveillance agencies at the expense of protecting individual human rights. In this legislation the High Court warrant is intended to allay concerns about protection of privacy. Because of the need for police to seek a warrant to gain access to a network each time the bill is not likely to encroach on existing privacy laws. We would be more concerned if surveillance agencies were continuously listening to communications traffic without needing warrants to do so. The interception capability requirements also specifically refer to privacy including the ability to exclude communications that are not authorised to be intercepted. 
Having said this the bill is clearly a response to the increasing threat of terrorism in the wake of September 11. In the case of the Bali bombing we have already witnessed the use of modern telecommunications by conspirators in the form of text messaging. This bill would bring us into line with the legal requirements for interception capability already in place in a number of countries including Australia the United Kingdom Germany and the Netherlands. But this bill avoids some of the draconian measures in some of those other laws such as the British Act for example which forces the surrender of encryption fees on threat of a 2-year jail sentence. Nevertheless passing the legislation adds further weight to our claims that we are contributing to the war on terror. 
Information is one our most powerful weapons in the fight against terrorism as we saw earlier this week in the pre-emptive raid carried out by authorities in the United Kingdom. There will be many conspiracy theorists and the Greens are amongst them I suspect who will see this bill as increasing the powers of police and other law enforcement and security agencies to undertake surveillance and this was reflected in some of the submissions to the committee as well. However the bill does not extend in any way their existing powers; it merely enables them to keep pace with future technological changes. 
I think members also need to keep the implications of this bill for domestic crime uppermost in their minds. This is something that I reiterated during the Committee stage. A member of the police electronic crimes unit described the current ability to access only some channels of communications used by criminals as being like police being allowed to breath-test only people driving white cars while people in coloured cars can simply get away. They are unable to capture evidence and bring it to the courts simply because they cannot get their hands on such evidence. 
Non-voice communications were not the only problems for police. In 2001 the Government signalled that it would require public telecommunications networks to be interception-capable but it emerged that Vodafone New Zealand did not have this capability and police said that their ability to combat crime was being seriously eroded because of that. The value of interception capability to police cannot be underestimated. Even without the ability to intercept Internet email and some voice traffic in the year to June 2000 police obtained 32 interception warrants and 132 people were prosecuted for crimes where evidence of intercepted communications was used. Most electronic crimes investigated are of the old-fashioned kind such as drugs fraud sexual offending and indecent publications but which have an electronic component. 
United Future welcomes the bill and supports it wholeheartedly and unreservedly in the fight against both the external threat to our security and the internal threat to our security from crime organisations.