Curran Clare: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeCurran Clare: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 16 October 2013. Volume:694;Page:13973. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): The Minister for Communications and Information Technology does not understand her own bill the Telecommunications (Interception Capability and Security) Bill. She does not understand the impact of it or she has got her fingers in her ears. I will just to talk about the response from industry.NZRise is a credible organisation that represents New Zealand tech-based industries—New Zealand Kiwi companies. Google Facebook Yahoo! and Microsoft represent a group of international service providers and all of them are actively opposing the key measures in this bill that we are talking about today. What they say is that as currently drafted this bill would impose in Part 2 a duty to assist on service providers and empower the Government to impose additional—not what the Minister just said but additional—interception obligations on a service provider by deeming them in to be a network operator for certain purposes. That is the difference in this part of the bill. Clause 35 in this part of the bill provides unprecedented powers to a Minister to decide whether a service provider which is the over-the-top provider such as theGoogles or theFacebooks etc. can be deemed in to become a network operator. In other words they get treated just the same as organisations such as the telecommunications companies in Part 3 of this bill. It is the Minister who gets to decide that on the recommendation of the Government Communications Security Bureau (GCSB) with no checks and balances.The issue in this bill is that there are not the checks and balances. There is a shadowy situation being set up for recommendations to be made on national security including something called economic well-being which is not defined and huge powers discretionary powers being given to a Minister to make those decisions. This is not the New Zealand way of doing things. The New Zealand way of doing things is where you put into legislation measures that ensure that dodgy decisions cannot be made. We have no guarantee in this legislation that a Minister based on a recommendation that cannot be made public will not make a questionable decision that cannot be challenged or if it is challenged it is through a judicial review.The big issue for the New Zealand - based companies is that the smaller tech-based companies such as our emerging innovative companies are concerned that they are going to get caught up in this legislation and be caught up in being defined as the traditional telecommunications companies are and those smaller companies do not have the resources or the means to question to provide a push-back or to have the kind of dialogue that may need to be had which their bigger brother organisations such as the Telecoms theVodafones etc. of the world could do. They do not have the means to do that and so there is no check and balance for them. Those are the New Zealand - based tech companies and they have written as a group. Every member of Parliament in this House will have received in the last few days a letter saying: “Please do not broaden the definition of ‘network operator’ in this legislation to include us.”The Minister shakes her head—the Minister shakes her head. Well Minister you have heard it said because there are cross-references in this legislation to definitions that do provide an enormous encompassing. Yes they do. So as with the GCSB legislation everybody else in the country is wrong except for the Minister. Is that right? Everybody else in the country is wrong! Yet the evidence could not be given to the Law and Order Committee on these matters properly. The Minister referenced tens of millions of dollars that are somehow going to be saved. In the regulatory impact statement provided on this legislation all of that information was redacted. We were not allowed to hear that information.In the first version of the bill clause 24(6) would have extended the application of the duty to assist to global service providers. This was a hotly debated part of the bill and it was clearly an issue. Eventually there was a decision to delete that clause which would have helped but the fact is that along with that went an expanding of the definition of “service provider” which meant that that conflict in international law which we have talked about several times tonight in this debate has been expanded. So every time “service provider” appears in this piece of legislation as set out in clause 3 it “(a) means any person who from within or outside New Zealand provides or makes available in New Zealand a telecommunications service to an end-user (whether or not as part of a business undertaking and regardless of the nature of that business undertaking); but (b) does not include a network operator”. That is the difference between the two definitions but the fact is that it is still an extremely broad definition and clause 35 of this bill means that the Minister on the recommendation of the GCSB and without a check and balance can deem in one of those service providers and make it a network operator. You deny in this Chamber tonight Minister that that is a wrong interpretation. That is a true interpretation.So that gives the Minister enormous unprecedented powers. How are those powers reflected in the existing legislation? This is a new provision and it is a provision that has been hotly contested by as I have said the international organisations—theGooglesFacebooks Yahoos! andMicrosofts of the world—who argue that this puts them in a direct conflict of law which makes our law look very foolish to the rest of the world. And for the New Zealand - based technology companies that definition of “networkoperator” draws them in in a way that is unprecedented in terms of the potential conditions that are going to be imposed on them by surveillance agencies and that will be the stifling of innovation in this country. What is missing is a check and balance from another entity that provides some balance and provides some good advice to the Minister and recourse for those smaller companies in terms of pushing back against those decisions over which they have no control. I would like the Minister to get up again and tell me how those organisations are supposed to operate under this legislation as it is put before us tonight.