Response to the ICT Minister on TICS Bill

ICT Minister Amy Adams did a superb political job on Q+A this morning in “forcefully defending” the TICS Bill. She successfully pushed the TICS Bill out of mainstream Kiwi concerns to the ‘sweaty T-shirt brigade’ (aka the ICT community).

That doesn’t mean she was right. The truth was collateral damage. It doesn’t mean that the TICS Bill isn’t likely to come with an opportunity cost tag of billions for New Zealand in the long term.

This is my attempt to respond to what the Minister said. Sadly, it will interest only those who really care about our digital future. For the political pundits, I’ll save you time and acknowledge upfront that the ICT Minister ‘won’ Q+A. A worthy reprise to The Boss on the GCSB Bill.

“Misinformed”

As expected, the Minister used this Government’s stock response to people who disagree with it- they are misinformed (or, worse, ‘politically motivated’, but I’ll not digress down that path).

I’ve been on the other side- explaining and defending a Bill. I fully appreciate how the Minister and policy makers look at a Bill through the lens of what they intended the words to say. Everyone else- from impacted businesses to courts who will interpret the law- read what the words actually say and, perhaps even more importantly, what they don’t say. Often, this frustrates people pushing through a Bill and ‘misinformed’ is the label that comes naturally.

But, in this particular case of the TICS Bill, there is more to it. The Government has failed to explain the Bill in detail and engage in debate, both in its media releases and in the House. From the outside, it looks as if the Government has been very deliberate in trying to engineer the very thing that it is now accusing people of- a lack of information and understanding.

There was zero consultation with service providers in developing the Bill. In fact, I had to put in a request under the Official Information Act to dig out what the Government should have made public in the first place- that it intended to issue secret Ministerial orders to the service providers it picks on individually.

Who then is responsible for misinformation, assuming that is actually the case?

Further, I neither accept that label personally nor think it is fair to the people who have spent many, many hours analysing the Bill. That the result of such analysis is well-founded criticism of the Bill and a real worry for New Zealand’s digital future does not make us misinformed.

“No backdoors”

The Minister several times, clearly and forcefully, asserted that the TICS Bill will not lead to the creation of backdoors. To say that I was astounded is an understatement. The whole point of the TICS Bill is to lawfully create backdoors or, more precisely, to continue those already in the telco networks and, in the future, force creation in select service providers’ systems.

The Bill itself is crystal clear about this. A means to provide surveillance agencies with secret, direct access to the whole of a network’s traffic in real-time, bypassing normal security and access requirements- that is precisely what a backdoor is.

How can one then reconcile the Minster’s assertions with the very intent of the Bill? The only rational explanation I’ve come up with is that her definition of a backdoor, admittedly a term not used in the Bill or exactly defined, differs from that commonly accepted. In that case, the assertion that the TICS Bill will not require creation of backdoors is a lesson from a master of spin.

It does not, however, change the fact that the TICS Bill is exactly about creating lawful backdoors (or whatever the Minister wants to call it).

Only “real-time”

The Minister stated that only real-time data will be collected under the TICS Bill. Section 10(1)(e) calls for real-time, or near real-time, interception capability. Nothing in the Bill however limits the data collected to only real-time data.

In any case, taking the Minister at her word, this opens up a very interesting issue.

It will probably come as news to both telcos and surveillance agencies that the Government has no requirement, or even expectation, that telcos will store call details, emails, text messages, Internet history, and metadata to be able to respond to requests for information, warrants, and court proceedings.

If there is no need for telcos and ISPs to store call and Internet information for surveillance purposes, this means that under Principle 9 of the Privacy Act, they must immediately delete personal information as soon as it is not operationally required. I am not aware of any other law that requires retention of history and stored data solely for surveillance and law enforcement purposes.

Forcing telcos and ISPs to retain call and Internet data only for as long as they require it for operational purposes could turn out to be a nice, unexpected bonus from the TICS Bill.

Mostly Police

Another assertion that I heard for the first time about the TICS Bill in Q+A was that most interception activities will be carried out by NZ Police. I assume this means from a volume perspective and not necessarily from an impact one.

Let’s hope that the Intelligence and Security Committee keeps an eye on that for us.

Why does the TICS Bill provide for Cabinet to allow any government department to join the SIS, GCSB and NZ Police in undertaking lawful interception? I suspect that’s part of the ‘just in case’ it is required in the future at the discretion of the Minister and Cabinet, the hallmark of this Bill.

Secret Ministerial orders

The Minister finally acknowledged that a secret Ministerial order could be used to ‘deem in’ individual service providers. Interestingly, she mentioned that use of secrecy is optional- that certainly was not the Cabinet decision. It is not clear on what basis the Minister will decide to use secrecy or not in a particular case- probably just another example of complete Ministerial discretion.

“Chucking huge figures around”

The Q+A interview re-confirmed that the Government’s view of the TICS Bill is very narrow, restricted mostly to the viewpoint of surveillance agencies. The Bill reflects some concerns of the big telcos but no one else.

Despite the Minister’s sabre rattling at Google and Microsoft, it’s difficult to imagine any government actually pushing so hard that they withdraw from New Zealand. No doubt secrecy will help in cutting deals.

I maintain that secrecy is the biggest issue and will cost the New Zealand ICT industry billions in lost opportunities over the next few years. This is over and above the direct costs and chilling of innovation. That’s a perspective a supposedly business-friendly Government should be able to appreciate.

The impact on New Zealand’s digital future will play out slowly, far too slowly for the political cycle. So, as far as the Government is concerned, the TICS Bill is now just a ‘sweaty T-shirt brigade’ sideshow.

This is just technical legislation. Nothing to see here folks, move along.

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