It started with a Tweet from Steve Cotter, CEO of REANNZ:
Trying to do the same in NZ, but govt's TICSA legislation makes deploying SDN/NFV in backbone networks challenging http://t.co/91MUpxfOnw
— Steve Cotter (@SteveCotter) February 22, 2015
Before we go any further let's unpack some of those acronyms and add one more:
- REANNZ - "REANNZ is the Crown-owned company that owns and operates New Zealand's high capacity, high performance advanced network... in order to 'establish and operate the Advanced Network in order to promote education, research and innovation for the benefit of New Zealand'."
- TICSA - The Telecommunications Interception Capability and Security Act passed by the National Government alongside the GCSB Act in 2013. It gives the GCSB oversight and control of New Zealand's data and voice communications networks. See our articles for more.
- SDN/NFV - Software Defined Networking and Network Functions Virtualization. Two up and coming methods of controlling complex networks, REANNZ has been doing useful work testing and developing SDN.
- NCSC - the National Cyber Security Centre - the people at the GCSB responsible for enforcing the 'security' part of the TICSA law.
So this is a statement by the CEO of a government owned company whose purpose is to "establish and operate the Advanced Network in order to promote education, research and innovation for the benefit of New Zealand" saying that they can't do the research and development work they need to do because the bureaucrats in the NCSC at the GCSB are holding them back.
Apparently the NCSC were willing to help, but the law was inflexible enough that making any significant change - like you might want to do quite frequently on an experimental network - was going to require the full notification and authorisation procedure. When asked for an exemption the reply was that this would be extremely unlikely to be granted.
But wait, there's more
Apparently Google has also been involved with research and development into SDN in New Zealand. We've been told by multiple sources that they were so annoyed by the TICSA's requirements and the NCSC's administration of them that they have closed the New Zealand section of this project and redeployed the hardware to Australia and the USA. This can only be seen as a loss to New Zealand.
This is a problem
We think it's a real worry that companies like Google and REANNZ, who are both pushing the boundaries of network research, are giving up in New Zealand due to the constraints imposed by government legislation.
It's exactly the sort of thing we worried about in our submission to the government about the TICS Bill:
It will introduce a layer of unnecessary bureaucracy and slow down development of services. It will lead to network operators making “safe” choices that they know will be accepted by the GCSB rather than making the best decisions.
Some people have suggested that these companies, REANNZ and Google, just needed to work harder to jump through the NCSC's hoops. The reality is that they obviously thought that this was not worth the effort and they abandoned the work. How many other companies in New Zealand are experiencing these exact same problems and deciding to just give up... or spend their research dollars in countries with a friendlier environment?
We stand by our original position that a spy agency can't intercept traffic on one hand and then provide security advice on the other. We don't believe that New Zealand's national security is enhanced by giving the GCSB more control of our telecommunications networks than any other spy agency has in any other comparable country. We don't believe that network operators should have to answer to a layer of micro-managing government bureaucracy to run their businesses. We think that this is in direct contravention of the GCSB's statutory objective of contributing to the economic well-being of New Zealand.
The TICS Act is proving to be a brake on innovation. It needs to be changed.
More on the story from Juha Saarinen at the NZ Herald.
- Can the Police also search your mobile phone or other smart device if you're arrested?
- Can the Police force you to unlock it if it is secured by a password or fingerprint?
We asked the Police and while the answers aren't as in-depth as we'd like, we thought we'd share what we got combined with our own analysis.
Firstly, if the Police can legally search you (they have a warrant, you're in the vicinity of a legal search being executed, you're suspected of being involved in certain classes of crime, etc), section 125(1)(l) of the Search & Surveillance Act explicitly allows them to search your phone or other data device.
Furthermore, section 130 of that Act can be used to compel assistance (i.e. you must unlock it) if they are doing a legal search. Note that the "no self incrimination" clause is generally understood to refer to the information used to unlock, not the information that is revealed by being unlocked.
The Police also have access to a range of tools used to access the information on such devices. In 2013 the Police Electronic Crime Group searched 1309 mobile phones and other devices. This number doesn't include any searches at the District level (stats are not recorded) or by officers on the street persuading people to let them examine their phone.
Secondly, section 88 allows the Police to do a warrantless search of someone who has been arrested if they have reasonable grounds to believe that they have a thing that may be used to harm someone, be used to escape, or may contain "evidential material relating to the offence in respect of which the arrest is made".
It would seem that this clause would allow the Police a large amount of leeway to come up with some vaguely plausible explanation as to why they need to search your digital device if you're arrested. e.g. they could require the information on it to track your movements or who you communicated with before you were arrested.
From our brief analysis, supported by the information from the Police, it seems that the NZ Police can upon arrest:
- Search your mobile phone or other electronic device if they can formulate a plausible reason to do so.
- Oblige you to unlock it.
Does anyone have a counter view?
How long can the Police hold the data for?
Who can they share the data with?
What limits as to reasonableness will the judiciary impose when it comes up in court?
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.
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.
Text of our submission to the Law and Order Select Committee re the Telecommunications (Interception Capability & Security) Bill.
I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.
In general we support the ability of the government to have interception capabilities on telecommunications where possible, when those interception capabilities have suitable oversight and control. However we fear that technological development is slowly making this lawful intercept regime increasingly irrelevant.
We’ll be addressing this and some other elements of the first two parts of the bill, before talking about the proposal to make the GCSB responsible for cyber security in New Zealand.
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.
We've been keeping track of the Police use of new surveillance and tracking technology. We asked them what they've been doing with drones and here are the more interesting/informative answers (Police letter, 19th February 2013):
- The Police currently have one aerial drone.
- They don't have a specific budget for it and claim not to know how much they've spent on it so far.
- They say that they can use it for tracking people and cars but promise to do it in accordance with the Search & Surveillance Act. We note that our interpretation of this says that they need a tracking warrant to use an electronic tracking system but we don't know if the Police agree with this.
- The Police believe that their current policy concerning video recording operations and events also covers their use of drones.
- The Police have been contacted by the Privacy Commissioner re their use of drones and will be meeting with them soon.
- The Police expect their drone trials to finish by the end of 2013.
You may also wish to read this article about drones by David Beatson at NZ Pundit.
We're going to be following up to get more information. If there's any questions you want asked, please leave them in the comments.
One of the most common topics of the emails we receive at Tech Liberty is the placement of video cameras. People worry about them where they work, in the street, and on their neighbour's properties.
This guest post is from Yuri Wierda, a licensed security consultant, and he's concerned about the increasing popularity of security cameras in public toilets:
I have personally refused to install cameras in toilets and have talked a few clients out of doing it. I believe cameras in toilets are immoral and may be illegal. Part of my responsibility when advising people on security is ensuring that they themselves don't break the law.
The argument for cameras in toilets has been that it reduces vandalism.
While there may be signs advising people that there is a camera I do not believe that it justifies it or complies legally. There are several situations where signs will not provide informed consent.
- Someone may get changed in the toilet and not see the sign.
- Someone may be blind or illiterate.
- Someone may be intellectually disabled.
- Children may be visiting the toilet unaccompanied.
This creates several privacy and legal issues:
- The intellectually disabled and children CANNOT legally provide consent to being filmed in the nude or partly clothed. Toilets are places where people adjust their clothing and may be partially clothed. Children and intellectually disabled people will not expect there to be a camera filming them. Filming such an event is illegal (s216G to s216N of the Crimes Act) and potentially can (and should) result in serious criminal charges.
- People who have not seen the sign or were unable to read it cannot provide informed consent.
I am appalled that the police has provided advice that it is not illegal.