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:13967. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): This is Part 2 of the Telecommunications (Interception Capability and Security) Bill. We are in the Committee stage of the bill and we are now talking about Part 2. This is the part of the bill that I would describe as being the “tying itself up in knots” part. This is the part of the bill where essentially the discussion that was happening in Part 1 takes effect around how those definitions play out particularly with regard to the service providers.The service providers for the sake of anybody listening in are the organisations and companies that are becoming more and more prevalent in our lives otherwise known as the over-the-top providers such as theFacebooks theGoogles theMicrosofts and other such entities. They are mainly entities that have a base in another country rather than in our own country. These are the big organisations that are enabling us to communicate in all kinds of different ways. How the provisions of this bill relate to those service providers is very important. As we discussed in the debate on the previous part of the bill the definition of “service provider” is so broad and so encompassing that it does provide a potential conflict with international law how this generally plays out and the service providers’ ability to provide what is called the “duty to assist” our surveillance agencies.I just want to put on the record that although Labour is opposed to this bill in its entirety we are not at all opposed to the modernisation of the legislation. We are not opposed to the provisions that existed in the previous legislation that put a duty to assist on organisations—a duty to assist the surveillance authorities when there was cause to do so. The problem that we have with this part of the bill—well there are several problems.I think that clause 35 is probably the most significant part of Part 2 of the bill. It gives a deem-in provision to the Minister in the chair at the moment the Minister for Communications and Information Technology and extraordinary unheard-of powers that we have not seen in this country before where a Minister gets to have for whatever reason the power to decide whether a service provider can be deemed in to become a network operator. A service provider just so that everybody knows has to have a duty to assist. That is fair enough. There is no issue with that. But the ability to deem in that service provider—such as Google such as Microsoft such as Facebook—to become a network operator would mean that it would then come under the provisions in Part 3 which are much much stronger. That then means that it becomes essentially an organisation that our surveillance agencies can have an enormous amount of power over. The conflict in law is actually really important.Again just so that everybody knows in her last-minute Supplementary Order Paper 366 which was brought before the Committee the Minister deleted clause 39 which is in Part 2—the reseller clause. That will have some beneficial effect I suppose for some of our internal telecommunications organisations. There will be a bit more of a fairplaying field for them when it comes to making their products available to the New Zealand public and the onerous conditions that could have been put on them through this bill.We are very dubious about the assurances that have been given by officials during the passage of this bill through the Law and Order Committee that the Telecommunications (Interception Capability and Security) Bill could require non - New Zealand service providers to provide access to customer data to the New Zealand Government. That is at odds with the providers’ own domestic legal obligations. The point that is being made here and that certainly has been made very publicly in the last week by these organisations—and you know this is not about getting in behind them and thinking that they are wonderful—is why is it that there should be a piece of legislation going through this Parliament when there is a question mark over whether it is in direct conflict with international law? That is just simply not good enough. The warnings were given. The submissions were made. They were made very powerfully but for some reason they have been ignored.Secondly for this part of the bill—and I know there will be more discussion by my colleagues around this and this goes directly to the amendment in Labour’s Supplementary Order Paper 370—after clause 35 Labour has put forward an amendment that creates a technical advisory board which is a check and balance. That is the other major issue with this bill—again there are many—there are no checks and balances. When we are talking about privacy we are talking about the rights of citizens and not just citizens but companies and their ability to innovate their ability to control their own destinies and their ability to go about their business in a context where security for the country for the bigger-picture interest is brought into balance. Unfortunately that balance has been tipped. One of the problems is that we do not have enough checks and balances in this law.We contend that there should be a technical advisory board established as was recommended by many of the submitters. The submitters included the Telecommunications Carrier Forum the peak body group for all of the major telecommunications companies in New Zealand. The forum said that there needed to be a technical advisory board such as there is under legislation in the UK which is essentially a panel that is set up to provide advice. It provides advice before decisions are made by the Minister on whether or not there should be interception undertaken and it should have an independent chair.As I said in the second reading debate on this bill New Zealand is a small stable peaceful democracy. We take really seriously in this country what those principles actually mean and how they are reflected in law and in regulation. This piece of legislation before us today tips that balance. It tips the balance in favour of State surveillance and secrecy without checks and balances.I would like to hear directly from the Minister who still has not got to her feet yet in this debate. She still has not got to her feet—Grant Robertson: An hour and a half she’s had.CLARE CURRAN: —after the 2 hours pretty much that we have been here. She still has not got to her feet. One of the reasons why is that she—I am starting to ask myself whether she just does not understand the legislation that is before her does not understand the impact of it has not listened to the community and has not listened to the industry. Certainly she is not taking any heed of what the implications are of her Draconian piece of legislation which is before us today. She shakes her head. Unfortunately I have come to the conclusion that she actually does not understand it because otherwise we would actually be hearing from her as to what the implicationsare. Why is it that a technical advisory board could not be put in as a check and balance to provide the public with an assurance?