The safe harbour provisions in the Harmful Digital Communications Bill are a serious threat to online freedom of speech in New Zealand.
How it works
Anyone can complain to an online content host (someone who has control over a website) that some material submitted by an external user on their site is unlawful, harmful or otherwise objectionable. The online content host must then make a choice:
- Remove the content and thereby qualify for immunity from civil or criminal action.
- Leave the content up and be exposed to civil or criminal liability.
The content host has to make its own determination about whether a piece of given content is unlawful (which may be very difficult when it comes to subjective issues such as defamation and impossible to determine when it concerns legal suppression), harmful or "otherwise objectionable".
Furthermore, there is:
- No oversight of the process from any judicial or other agency.
- No requirement for the content host to tell the person who originally posted the content that it has been deleted.
- No provision for any appeal by the content host or the person who originally posted the material.
- No penalty for people making false or unreasonable claims.
We can safely assume that most content hosts will tend to play it safe, especially if they're large corporates with risk-averse legal teams, and will take down material when requested. They have nothing to gain and plenty to lose by leaving complained about material online.
Serious ramifications for freedom of speech
Don't like what someone has said about you online? Send in a complaint and wait for it to be taken down.
This applies to comments on blogs, forums on auction sites, user-supplied content on news media sites, etc, etc. These are exactly the places where a lot of important speech occurs including discussions about politics and the issues of the day. The debates can often be heated, and some sites are well known for encouraging intemperate speech, but these discussions are becoming and increasingly important part of our national discourse.
This law will make it too easy for someone to stop arguing and start making complaints, thereby suppressing the freedom of expression of those they disagree with.
The jurisdiction problem
Of course, this will only apply to websites that are controlled by people who have a legal presence in New Zealand. Overseas websites will continue to maintain their own rules and ignore New Zealand law and standards of online behaviour.
As currently written, these safe harbour provisions are just a bad idea. They're too open to abuse and we believe they're more likely to be used to suppress acceptable speech than to eliminate harmful or "otherwise objectionable" speech. As a very minimum, the complaint should have to be approved by the Approved Agency referred to in the other parts of the Bill.
That said, the whole idea of removing "otherwise objectionable" speech is also quite worrying. The Harmful Digital Communications Bill already has an expansive set of rules about what sort of harmful speech shouldn't be allowed online and this "otherwise objectionable" seems to extend it even further. One of the principles we stand up for here is that civil liberties such as freedom of expression are as important online as they are offline, and this law goes far beyond anything in the offline world.
We hope to have more comment and analysis on other aspects of the Harmful Digital Communications Bill soon.
The TICS Bill (Telecommunications Interception Capability and Security), a partner to the GCSB Bill that has already been passed, is progressing through Parliament. See our round-up of articles about the Bill.
The Bill has been modified twice:
- The Bill as reported back (PDF) by the Law & Order Select Committee on 19/9/2013.
- A supplementary order paper added by the government on 15/10/2013.
The government has also provided two further documents:
- A comparison of the original 2004 TICA law and the TICS Bill (PDF).
- An infographic showing how law enforcement interacts with the interception requirements.
As reported back by the select committee
The Law & Order Select Committee made a number of minor changes to the Bill. Many of the changes are tweaks to the drafting that have no substantive effect, while others are minor technical changes to improve clarity or streamline procedures.
Even those that do attempt to make changes are fairly weak. E.g. the Director of the GCSB will now have the duty to make decisions about network security "as soon as practicable".
There are no substantive changes worth reporting.
Supplementary order paper 366
As reported in the press release from Amy Adams, the SOP makes the following changes:
- Clause 39, allowing the Minister to forbid the resale of a foreign service that doesn't allow interception, has been removed. This is a good change as the clause was basically unusable - no one really thought that the Minister was going to, for example, ban the sale of Apple products in NZ.
- The GCSB's oversight of network providers has been further cleaned up in an attempt to make it workable, and the Minister can now make regulations about the timeframes for decisions.
- The press release says "it is also proposed to narrow the scope of the matters that must be notified to the GCSB, reducing compliance costs for network operators". The words "any change" have now been replaced by "any change to the architecture", which would mean that minor changes would not have to be notified. However, the word "acquisition" has been added alongside procurement, thus extending the scope to systems that have not been through the normal procurement process (i.e. developed in-house or using free software).
- Adds an additional step before the Minister can make a direction to a network provider about how they should run their business. The Commissioner of Security Warrants will now be required to carry out their own analysis of the GCSB's risk assessment. The Minister will also have to take into account any cost or competition implications for the network provider.
- Acknowledges that some foreign-based service providers will not be able to provide assistance as required in clause 24 due to their own laws.
Tech Liberty comment
The changes to the Bill are largely tweaks designed to improve how the bill works rather than the product of any rethinking of what the government should or shouldn't be doing. Even the removal of section 39, which allowed the minister to ban the resale of foreign services, is fairly irrelevant as that part of the law was unworkable anyway.
There is no evidence that the revelations about the extent of government spying in our intelligence allies, the USA and UK, have had any impact on the TICS Bill which is still mainly concerned about making sure that all electronic communications in New Zealand can be exposed to government scrutiny.
The government is also still pressing on with their intention of giving the GCSB overarching control of New Zealand's voice and data networks. Again there have been some minor changes and shifts in emphasis, but network providers will still be obliged to get GCSB permission to expand or modify their communications infrastructure. The government claims that this is about improving security but it is also clearly about maintaining the ability of the Police, SIS and GCSB to spy on New Zealanders. How the GCSB will handle the tension between surveillance and security is yet to be seen.
One interesting element that hasn't changed is section 10(3) which obliges a network provider to decrypt a telecommunication where the network operator has provided that encryption. A number of submitters said that this was unclear - what about services such as Mega or LastPass that provide the encryption but don't have access to the key as it chosen by the user? The clause could be read to say that this was no defence and that the network operators would have to engineer in security backdoors or risk being fined. The government's decision not to clarify this would seem to indicate that this is the intention.
We believe that changes in technology mean we need to rethink surveillance, search warrants and interception. We also fear that the cold war heritage of our security services unreasonably influences their thinking and their operations.
We support the idea of an inquiry into our intelligence services to ensure that what they do and how they do it are in the best interests of New Zealanders. We also support the idea that just because something is technically possible, it doesn't necessarily mean that we should do it. There needs to be limits on surveillance to protect important rights, such as freedom of expression and freedom of association.
We have started our own project to develop a set of suitable laws and safeguards for surveillance and spying in New Zealand. Informed by the principles at Necessary and Proportionate, we want to come up with some solutions to the hard questions that we're all being confronted with. Please contact us if you'd like to be involved in this effort.
The GCSB Bill has now been passed by Parliament.
Next up is the Telecommunications (Interception Capability and Security) Bill also know as the TICS Bill. This is an update of the Telecommunications (Interception Capability) Act (2004) that forced communications providers (ISPs, telcos, data networks, etc) to provide "lawful intercept" capabilities so that the Police, SIS and GCSB could access communications once they had a suitable warrant. The new bill expands and clarifies these requirements.
However, the addition of the word "security" is the key to what has changed. The new bill now gives the GCSB sweeping powers of oversight and control over the design, deployment and operation of all data and telecommunications networks run by network providers in New Zealand. The stated reasons are to both protect New Zealand's infrastructure and to ensure that surveillance agencies can spy on traffic when required. As part of this, the GCSB will have the power to stop network providers from reselling overseas services that do not provide these capabilities.
The bill has passed the first reading and is expected to be reported back from the Law & Order Select Committee on the 20th of September.
Tech Liberty articles
We've written about this bill and also made a written and oral submission to the Law and Order Select Committee. Here's a list of our articles in publication order:
- Govt proposes GCSB control over NZ communications in new TICS Bill
- Does the TICS Bill really give the GCSB control and oversight of NZ telecommunications?
- GCSB’s new powers for wide-spread spying on New Zealanders
- Will the GCSB ban Apple from New Zealand?
- Tech Liberty written submission
- Tech Liberty oral submission
Other articles worth reading
- Submissions to the Law & Order Select Committee.
- The NBR's Chris Keall writes about TICS's protectionist twist.
- Vikram Kumar writes about secret Ministerial orders.
- Vikram Kumar, disappointed by telco submissions, asks whether ISPs should be privacy crusaders.
- Vikram Kumar - The duty to assist.
- Vikram Kumar - Service provider's view of the TICS Bill jackboot.
- Human Rights Commission's Report to the Prime Minister re the GCSB and TICS Bills (PDF).
- Internet NZ's submission to the Law & Order Select Committee and their prepared remarks for the oral submission.
- Ian Apperly writes about the cost of the TICS Bill to NZ's IT industry.
- Ian Apperly - Why the TICS Bill could put NZ ICT companies out of business.
- Microsoft's submission warns that the TICS Bill is a threat to the industry and may lead to a withdrawal of services.
- Paul Brislen - intercept bill takes a cavalier approach to privacy.
There's been a lot of confusion in the media recently about how much the GCSB will be able to spy on New Zealanders when the GCSB Bill passes.
When even Peter Dunne gets it badly wrong in the "Ask Me Anything" article he did in the National Business Review (see q4 from Rick Shera), claiming that they could only spy on NZers on behalf of the Police/SIS/NZDF, we thought we should clear some things up by looking at the legislation.
Spying on behalf
Firstly, everyone agrees that section 8C of the Bill will allow the GCSB to spy on New Zealanders on behalf of the SIS, Police or NZ Defence Force. This is the "giving assistance" part and it appears to be limited to only doing things that the original agency would have the legal authority to do.
Recent changes include more clarity about the GCSB's assistance being subject to the originating agency's oversight (e.g. the Independent Police Complaints Authority for work performed for the Police) and requiring any new agencies to be added by legislation rather than by an Order in Council.
GCSB spying on New Zealanders
The GCSB also has the power do its own spying on New Zealanders as part of its new cybersecurity purpose (defined in section 8A). "to do everything that is necessary or desirable to protect the security and integrity of the communications and information infrastructures".
The main interception powers are granted by section 15A and this makes it very clear that both interception warrants and access authorisations can be granted for the GCSB to spy on New Zealanders under purpose 8A (cybersecurity).
Interception warrants vs access authorisations
It's worth explaining the difference between interception warrants and access authorisations. An interception warrant (15A(1)(a)) is granted to spy on:
- one or more specific people or a class of person
- communications made in one or more specific places or classes of place
- communications sent from or to overseas
An access authorisation (15A(1)(b)) allows the GCSB to access a particular or class of "information infrastructure" which is further defined as "electromagnetic emissions, communications systems and networks, information technology systems and networks, and any communications carried on, contained in, or relating to those emissions, systems, or networks".
Therefore an interception warranted is targeted at a person or place (although the targeting can be very, very broad), whereas an access authorisation allows general access to all the information on a particular computer system, network or phone system, or a specified type of all of those systems.
The only difference between those granted for spying on foreigners and those for spying on New Zealanders, is that the ones targeting New Zealanders have to be signed off by the Commissioner of Security Warrants as well as the Prime Minister. The Commissioner is appointed by the Prime Minister.
Doesn't section 14 stop the GCSB spying on New Zealanders?
The new section 14 only stops the GCSB from spying on New Zealanders for purpose 8B (intelligence gathering and analysis). It does not apply to any surveillance done in relation to cybersecurity (purpose 8A) or done on behalf of other agencies (purpose 8C).
The new section 15C does stop the GCSB deliberately intercepting privileged communications (e.g. to your lawyer). However, see note below about incidentally gained intelligence.
Section 16 of the GCSB Act also allows certain forms of spying without a warrant or access authorisation. However, the bill adds section 16(1A) which says that this cannot be done for the purpose of intercepting the communications of New Zealanders. (See the notes below about metadata and incidentally gained intelligence.)
Putting it all together
So what does all this mean?
Most importantly it clearly shows that the GCSB can spy on New Zealanders for its own purposes without doing it on behalf of another agency.
We see that this has been deliberately set up to allow mass surveillance either now or in the future. For example, the GCSB could apply for an access authorisation for access to "New Zealand's mobile networks" and, after being signed off by the Prime Minister and the Commissioner for Security Warrants, they could then use that access authorisation to collect all phone calls, texts and data sent over the mobile networks.
This collected information could then be analysed and the resulting intelligence given to the Minister and any person, whether in New Zealand or overseas, authorised by the Minister (section 8A(c)).
In theory this activity would have to be done as part of their purpose to "protect the security and integrity of the communications and information infrastructures" but we see that this could be interpreted rather widely.
There are also a number of other issues around spying on New Zealanders that we haven't directly addressed in this article:
Metadata - There are a number of places in the bill that put limits on intercepting "private communications", but in the past the GCSB has interpreted that as only including the actual call, not the related data (e.g. when, who, how long, etc). Does this mean that the GCSB still thinks it can collect this metadata without a warrant or access authorisation? The bill is silent on this issue.
Incidentally gained intelligence - when the GCSB does collect information it shouldn't, it can still use that information if it would help prevent or detect serious crime, save lives, or be useful for the security or defence of New Zealand. This is a fairly large loophole in many of the limitations in the Bill.
Access authorisation for the GCSB - section 14 prohibits the GCSB from intercepting NZers private communications for purpose 8B intelligence gathering but they can do so for purpose 8A cybersecurity. Could the GCSB then obtain an access authorisation for access to its own database of already intercepted cybersecurity data for intelligence gathering purposes?
Sharing data overseas - how much of this data can be shared overseas? There appear to be no limits other than that the Minister must approve who it is shared with.
Collecting data from overseas - can the GCSB get data from overseas agencies (e.g. the NSA) that it couldn't legally intercept itself? Can it share data for the purpose of cybersecurity and then be given it back to be used for general intelligence?
What about data that New Zealanders store overseas? - are there different rules for information that New Zealanders store overseas with companies such as Google and Facebook?
Feedback and updates
Think we've got this wrong? Feel free to leave a comment with your interpretation. We'll make any necessary corrections or additions as required.
Text of Thomas Beagle's speech to the Urgent Public Meeting to Oppose the GCSB Bill held in Auckland, 25th July, 2013. (Or watch video of all of the speeches.)
I’m from Tech Liberty. We’re a group dedicated to defending civil liberties in the digital age. I want to start by explaining what that means in the context of this bill.
Dear Mr Key
This letter is partly in response to the findings of the Kitteridge report about the GCSB and their failures to follow the law, but is also mindful of the recent PRISM revelations about the actions of the NSA in the USA, as well as the mass spying revealed to have been carried out by the GCHQ in the United Kingdom. As disturbing as these revelations have been, we cannot help but be shocked that this surveillance was done in secret without the knowledge of the citizens of each country.
We assert that, as citizens of a democratic society, we have the right to know the methods that government agencies use to watch us. Without this knowledge we cannot assert our rights to put appropriate limits on their use.
Apple recently released a statement about their cooperation with law enforcement. It includes:
For example, conversations which take place over iMessage and FaceTime are protected by end-to-end encryption so no one but the sender and receiver can see or read them. Apple cannot decrypt that data.
[Update: see this discussion about whether this is entirely true.]
Does this mean that Apple will not be complying with New Zealand law?
There have recently been a number of revelations about the US government spying on its citizenry and other people around the world (a good summary). Many people have been shocked to find out the extent of the US's spying and access into theoretically private systems.
What many New Zealanders don't realise is that the NZ government is currently changing both the GCSB Act of 2003 and the Telecommunications Interception Capability Act of 2004 to allow similar levels of access to New Zealand communications for the GCSB (Government Communications Security Bureau).
The current TICA law already gives the GCSB, Police or SIS the technical capability to intercept all NZ communications if they have a valid warrant.
The GCSB can get warrants to spy on the communications of foreign people and organisations, although they can spy without a warrant if it doesn't require the installation of any device (e.g. wireless/satellite/radio/mobile).
TICS - Telecommunications Interception Capability and Security Bill
The new TICS Bill clarifies and expands on these interception capabilities. It also allows them to be extended to service providers (people who offer "goods, services, equipment, and facilities that enable or facilitate telecommunication") such as email providers, Trademe forums, Mega, etc.
TICS continues the existing regime where these interception powers can only be accessed with a valid warrant, but keep reading for the new exceptions to this in the GCSB Bill.
Furthermore, the TICS Bill also creates a new role for the GCSB, ensuring the security of New Zealand's telecommunications infrastructure. This includes wide powers of oversight and control of how communications networks are managed and implemented in order to "protect New Zealand's national security or economic wellbeing".
GCSB - Government Communications Security Bureau and Related Legislation Amendment Bill
The new GCSB Bill gives the GCSB three purposes (we'll come back to these):
- 8A - Information assurance and cybersecurity. (Expanded from protecting government communications to a much wider responsibility for New Zealand's communications.)
- 8B - Intelligence gathering, analysis and sharing. (Similar to the existing law except that it adds "gathering information about information infrastructures" to the existing spying on foreign people/organisations.)
- 8C - Helping the Police, SIS and Defence Force by providing advice and assistance in helping them execute their own legally obtained warrants. (This is entirely new.)
The bill doesn't significantly change how the GCSB can apply for an interception or search warrant, but it does add a whole new class of "access authorisation". To quote section 15A(1)( b)
The Director may apply in writing to the Minister for the issue of an access authorisation authorising the accessing of 1 or more specified information infrastructures or classes of information infrastructures that the Bureau cannot otherwise lawfully access.
These authorisations are granted at the whim of the Minister (although see below) and are incredibly wide-ranging and open-ended. There are no recommendations of limits (other than what the Minister sees fit to impose) and there is no automatic expiry. And just in case you thought that the TICA/TICS law might provide some protection, the GCSB Bill goes on to add section 15A(5):
This section applies despite anything in any other Act.
Most importantly these new access authorisations can be used for purpose 8A (cybersecurity) as well as 8B (information gathering). As paragraph 36 of the Regulatory Impact Statement explains: "an amendment will also be required to allow the GCSB to see who (namely NZ individuals and companies) is being attacked". That is to say, the GCSB believes that it needs to be able spy on New Zealanders to maintain ther security. Based on what we know from recent reports in GCSB activities, we assume that the GCSB particularly intends to collect communications metadata (i.e. who speaks to who, when and how often but not what they say).
If you had any doubts about whether this applies to NZ communications, section 15B then further clarifies that for any access authorisations "for the purpose of intercepting the private communications of a New Zealand citizen or permanent resident of New Zealand under section 8A (cybersecurity)" the authorisation must be approved by the Commissioner of Security Warrants as well as the Minister.
And finally if you were hoping that section 14, which controls the ability of the GCSB to target New Zealanders would provide any protection, this only applies when the GCSB is performing duties under section 8B (intelligence gathering) and not section 8A (cybersecurity).
Putting it all together
The GCSB believes it needs to monitor the communications of New Zealanders in order to ensure that it can protect them from attacks.
TICA and TICS establish the technical capability for the GCSB to spy on any communications, subject to the limits in that law and the GCSB Act.
A section 15A(1)(b) access authorisation can give GCSB power to access any communications system it wants for the purpose of spying or information security, irrespective of any legal controls in any other law. This will allow it access to the facilities provided by TICS/TICA.
The GCSB will be spying on New Zealanders.
These new laws are not some minor adjustments to the work of the GCSB and how interception works. They are not just about letting the GCSB provide technical assistance to the Police, SIS and Defence Force.
While people in the USA are getting upset about the revelations of the extent of NSA spying there, these new laws give the GCSB far greater control of New Zealand communications networks, and practically unlimited capacity to intercept New Zealand communications.
These new laws are the point at which New Zealand switches from being a society that investigates "bad guys" subject to judicial oversight, to being a surveillance state where the government is always watching and recording everyone just in case they're thinking about doing anything wrong.
We don't want to live in that society. We believe that these new laws contravene the right in the NZ Bill of Rights to be free from unreasonable search and seizure, and will have a chilling effect on the rights to free expression and freedom of association.
We think that these laws need to be stopped.