11 July 2004. Thanks to Tarn McDonald.
Research
Design and
Methodology
Difficulties
Encountered and Sources of
Error
International
Law Enforcement Telecommunications Seminar
(ILETS)
Ministry
of Commerce [Ministry of Economic
Development]
Cabinet
and the Social Policy Committee
(SOC)
Telecommunications
Network Operators and
ISPs
New
Zealand Security Intelligence Service
(NZSIS)
Conclusions
drawn from Policy Network
Analysis
Concerns
and Recommendations for Further
Research
Timeline
of events and legislation relevant to information privacy and
surveillance
This research investigates information privacy issues in
I first became interested in researching information privacy in
Preliminary research suggested that this legislation bore similarities to
numerous pieces of legislation enacted overseas, for instance the CALEA
(Communications Assistance for Law Enforcement) and USA PATRIOT (Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism) Acts in the United States, and the RIP (Regulation
of Investigatory Powers) Act in the United Kingdom. These acts had been strongly
criticized for their lack of regard for civil liberties in the context of
privacy issues by international civil liberties watchdogs and in the case
of the PATRIOT Act by the American Library Association (ALA).
The changing international climate in relation to security issues had provoked
both legislative change and public debate on privacy, security and surveillance
issues. Mainstream debate was polarised, with commentators tending either
to argue in favour of the increased need for surveillance as protection against
terrorism, or arguing that the right to privacy is fundamental and should
not be compromised. Librarians
were among those who defended the right to privacy in the
In the context of American Library Association’s concerns over the privacy implications of the PATRIOT Act in the United States, I sought to examine the implications of this Bill for privacy in New Zealand, not solely in the context of Libraries, as had been the case with the American Library Association, but in the broader context of the provision of information provision services in New Zealand.
Because this legislation directly involved ISPs, I elected to focus this
research in this area in order to determine the impact this legislation might
potentially have on information provision in
Since their arrival towards end of the 1980s ISPs have come to play a pivotal
role in controlling access to information for the increasing numbers of people
and organisations who rely on the Internet as an important tool for communication
and the provision of information.
Yet relatively little research has been undertaken which analyses
their role or places it in a socio-political context. The exponential growth
in recent years in the use of network and information technologies, in both
the public and private spheres, has led to a changed and increasingly important
role for those involved in the provision of telecommunication and network
services. This new role has resulted in a number of as yet unresolved conflicts
between the legal and social frameworks in existence prior to the rapid
introduction of these new technologies, and their application in a modern
context. The situation has been further complicated in
The main objective of this research was to examine the issue of information
privacy in
It is hoped that this study will prove useful for information professionals, and serve to foster debate in this area. Librarians and other information professionals must be aware of these changes as they will affect the roles and responsibilities of the profession as information provision moves from the use of print to digital resources, and librarians are increasingly required to confront legal and ethical issues on a regular basis. Unless the ethical and legal issues that the provision of digital information services raises are addressed and policies formulated, libraries increasingly run the risk of failing in their role. As information professionals and stakeholders in this debate, librarians and information professionals should be actively concerned with the development of information provision policy and the issues surrounding it, and consider becoming more actively involved in the policy making process.
An Internet Service Provider or
ISP is “an organization that
provides access to the Internet” (The Internet Glossary and Quick Reference
Guide 1998).
Telecommunications refers to all
forms of communications across a distance, including telephony and computer
networking. In the context of ISPs, the terms is used to refer to email,
Internet based activities and IP telephony.
Privacy is defined differently
by different groups, and as one of the goals of this research is to determine
how this concept is defined in order to uncover power structures in the policy
discourse, a definition will not be given.
Policy Networks are made up of
the systems of actors and structures that shape policy in a particular sector
or related to a particular issue. Marin and Mayntz (1991) state that Policy
Networks “are explicitly defined not only be their structure as
interorganizational arrangements, but also by their function – the
formulation and implementation of policy” (1991: 16).
Surveillance Agencies are Law
Enforcement Agencies granted powers of interception and surveillance. In
Privacy issues have become increasingly important as the volume of personal
information that is stored and transmitted electronically has increased (Marx
1999). Legislation enacted in various Western countries over the last 3 decades
(Bennet and Grant 1999) has sought to protect the rights of citizens to privacy,
while at the same time the surveillance capabilities of modern technology
and socio-political trends have resulted in an increasing body of legislation
that seeks to define the state’s right to surveillance, usually for
the purpose of investigation by the police, intelligence services or other
state agencies. There are in essence two conflicting positions, one seeking
to protect the right of citizens to privacy and one arguing for increased
state powers of surveillance in order to protect society from internal and
external threats. The events of
This research addresses privacy issues in the context of law enforcement
and electronic surveillance, though this is only one aspect of the privacy
debate. This review looks at the literature produced on the subject of privacy
in the context of telecommunications, focusing on material produced in
Little has been produced in terms of independent academic research into privacy
and telecommunications in
In 1992 the Ministry of Commerce released a report entitled
Telecommunications and Privacy Issues
(Longman Associates 1992). The stated purpose of the report is “to identify
the personal privacy implications associated with telecommunications and
to provide a methodology for analyzing the resulting issues”. It discusses
what privacy means in a legalistic framework and situates the debate on privacy
in the context of international law as well as analysing technical
considerations.
While covering the historical situation in this area in detail up until 1992,
the fact that it was produced prior to the explosion in the growth of the
Internet and the appearance of the World Wide Web detracts from the use of
the research in considering Internet privacy issues. It is stated that
“most of the activities outlined in this report on the telecommunications
industry do not necessarily infringe individual privacy at the present time;
but they have the potential to do so in the future” (pp. 10-11).
In February 2002 the Law Commission published a report entitled “Electronic
Technology and Police Investigations: Some issues”. This report places
New Zealand legislation in the context of that of other countries and raises
the issues of the cost of furnishing assistance to ISPs to provide interception
services, as well as whether ISPs in New Zealand should be subjected to a
duty to modify their current systems to enable them to comply effectively
with government interception requirements (as is proposed in the
Telecommunications (Interception Capability) Bill). It provides useful material
on the government’s development of privacy
policy and refers to a decision
of the cabinet policy committee on 12 December 2001 to legislate to “impose
a ‘duty to assist’ on all telecommunications service providers
to provide reasonable assistance to Police, Government Communications Security
Bureau and Security Intelligence Service in executing an interception warrant,
within their technical capacity and on a cost recovery basis” (p. 13).
It also states that “The
Cabinet Policy Committee on 12 December 2001 agreed on a policy for the
imposition of interception capability requirements and the incidence of the
cost and there is no point in the Law Commission discussing the matter
further” (2002:15).” The study also concludes that with regard
to the interception of communications “there are no bill of rights
implications” (p. 18). The value of this research lies in these insights
and its situating of policy change in an international context.
The Office of the Privacy Commissioner has produced a number of reports related
to Information Privacy and Surveillance issues, including a report on the
Telecommunications (Interception Capability) Bill and the Crimes Amendment
Act (no.6). The Office of the Privacy Commissioner has also recently authored
a Telecommunications Privacy Code,
the development of which would be worthy of study in its own
right.
The Internet Society of New Zealand (Internet New
A small body of material, mostly in the form of newspaper articles and press
releases, existed in relation to the Telecommunications (Interception Capability)
Bill. However, due to the stage in the legislative process at which this
bill was situated, little had been written specifically on this. In the course
of researching the bill, it was discovered that a related piece of legislation,
the Crimes Amendment Bill (No.6) was currently progressing through Parliament.
Initially read in 1999, the Crimes Amendment Bill (no.6) included a number
of updates to the Crimes Act 1961, including a number of new offences relating
to computer crime. On
A number of articles on the Crimes Amendment Act (No.6) and SOP 85 appeared
in major newspapers and computer news websites. Hager (2000) has written
the only comprehensive account of the genesis of the Crimes Amendment Act
(No.6) SOP 85, and linked the origins of the Act to an international lobby
group called ILETS (International Law Enforcement Telecommunications Seminar).
He also mentions in this article the possibility of changes being made to
the Telecommunications Act. Brislen also discusses ILETS in a 1999 article
discussing the attempts of this group to lobby the New Zealand Government
through the New Zealand Police. A brief article appeared in PC World (Palmer
2002: 18) earlier this year which describes the role ISPs would play in the
interception of communications should the Telecommunications (Interception
Capability) Bill come into force.
Much of the material produced in relation to the Crimes Amendment Act (No.6)
and SOP 85 was in the form of reports for the purpose of developing and
influencing policy and legislation. Little research, save that of Hager,
has been undertaken which attempts to analyse the networks that led to the
development of this legislation in
Akdeniz (2000) describes the interaction between the UK Government, ISPs
and the association of Chief Police Officers (ACPO) in the development of
ISP interception policies and systems in the late 90s in the
Does your organisation take part in
the Association of Chief Police Officers, Internet Service Providers &
Government Forum or has it been aware of such discussions?
What sort of monitoring or backup systems
are used and for how long do you keep personal data (as explained above)?
Is [insert name of the ISP] capable of actively monitoring all IP traffic
from a particular user and if this is done for what purposes? (Bohm and
Akdeniz 1998)
This research provides useful background material detailing the role of ISPs
in
While very little work has been done that attempts to analyse the power
structures and social constructions that determine the nature and terms of
the privacy debate (what Shields refers to as
critical policy analysis), analyses of other areas illustrate
the potential of using this perspective to examine power structures and
discursive practices.
Drawing on the work of Scheurich,
Jones et al. (1998) argue that “despite the increasing proliferation
of policy texts, there does not seem to be a great deal of attention paid
to language as the ‘stuff’ of which those texts are made”
(p.150). A textual approach is also pursued by Mukherjee (2000), who analysed
the language and discursive contexts of Caller ID proceedings in the
More recent literature has addressed the trends that have arisen since September
11. For instance Nelson (2002) writes that “the events of September
11 upset the balance between the spheres of individual privacy and the common
good in a unique way. The rhetoric of the common good and the necessity of
surveillance and information gathering coincide in legislative efforts to
deter and punish terrorism. Because of the events of September 11, new
technology, including innovations such as FaceIt and Carnivore software (Kerr
2000), has been subsumed by a new rhetoric. No longer is new technology
necessarily viewed as a threat to individual privacy; rather, it is perceived
as serving the common good and protecting freedom as reflected in legislative
reactions such as the USA PATRIOT Act.” Nelson goes on to argue that:
“More problematic, the rhetoric of technology after September 11 seeks
to persuade us that technology is universal in its invasion and objective
in its application. In short, the rhetoric of public policy after September
11 encourages us to believe that the preservation of freedom and the common
good requires our universal acquiescence to technological invasions of privacy.
Although surveillance is a useful and necessary aspect of criminal investigation,
new developments in surveillance technology, as well as novel justifications
of it, pose a unique public policy concern.”
In summary, there exists a wealth of material dealing with the legal and
ethical implications of new surveillance legislation in
The original goal of this project was to address the lack of research into
the political structures and policy networks that have been and are important
in the development of surveillance legislation by analysing the role ISPs
had played in policy networks in
How have ISPs influenced and been
influenced by privacy policy networks in
The privacy policy network referred to in the above question refers to networks
of organisations involved in the development of public policy and legislation
with privacy implications. In the case of this research, the focus has been
on privacy of communications and surveillance, rather than any other privacy
networks which ISPs have also been involved in (e.g. concerning Spam). Due
to the exploratory nature of the research, a hypothesis was not formulated.
The original intent was to limit the research to the national networks, and
consider broader global forces which have impacted upon the development of
policy to a much lesser extent.
The research question formulated above suggests a number of sub-problems
which were also to be investigated during the research process:
i.
What influence does Government, the Office
of the Privacy Commissioner and the New Zealand Internet Society have on
policies affecting ISPs?
ii.
What influence do ISPs have on the shaping
of Public Policy?
iii.
Who are the key players involved in privacy
policy networks?
iv.
What other actors are involved in privacy
policy networks?
v.
What communication channels are involved in
privacy policy networks?
vi.
What consultation processes are
involved?
vii. How do different actors define privacy?
The main objectives of the research were identified as:
·
To determine what roles different organisations
have played in the development of public policy relating to Internet privacy
issues in
·
To identify how these organizations define
privacy, and how this definition relates to other organisational
perspectives.
The framework adopted in this research was based on two main paradigms: policy
network theory and critical policy analysis informed by the work of Michel
Foucault. Policy network theory was used to describe and analyse the networks
of communication and influence that have influenced recent developments in
surveillance legislation in
Policy network theory has its origins in French structuralism though it shares
some theoretical assumptions with systems theory and cybernetics (Kenis and
Schneider 1991). It attempts to understand policy development processes through
analysis of the inter-organisational networks of actors that shape policy,
rather than through the analysis of independent hierarchies, an approach
which was previously the dominant model in policy analysis and research.
Marin and Mayntz (1991) offer a definition of policy networks which states
that a policy network possesses the following properties:
“being anchored in policy sectors; requiring collective action; composed
of corporate actors; structured as inter-organisational relations; predominantly
informal and horizontal, but not without asymmetric interdependencies, which
means power relations; functionally defined by the formulation and implementation
of policy; without stable central or hegemonic actors; involving not too
many participants; and characterized by strategic interaction and a predominance
of antagonistic cooperation or mixed-motive games” (1991: 18)
Kenis and Schneider (1991) argue that a “decentralized concept of social
organization and governance” is essential to the policy network perspective.
A policy network may be centred on a sector, such as telecommunications,
or an issue, such as privacy in telecommunications. The actors that constitute
the policy network will include members of the private and public sectors.
Public interest groups may play a role: Dense (1997), for instance, has described
the involvement of advocacy groups in
Policy network theory is used in this research project to build an historical
and contextual picture of the development of surveillance legislation in
a concrete organisational, cultural, and political context. Its use allows
the development of an understanding of key players in networks, and their
interactions, both formal and informal.
Coupled with a concrete analysis of the specific structures through which
legislation is developed is a critical analysis of the power structures and
discourses which shape the development of policy and a study of the broader
context in which these structures exist. In order to perform a critical
examination of policy networks, an approach is utilised which employs the
theoretical paradigm of critical policy analysis.
Critical policy analysis may be described as policy analysis informed by
post-structuralism and critical theory. Critical policy analysis is used
to analyse the power structures and social constructions that determine the
nature and terms of the privacy debate, and a post-structuralist theoretical
framework will be employed to analyse the power relationships and discursive
practices which are present in the legislative development process. Policy
network theory provides a structural analysis of policy processes in the
telecommunications industry; critical policy analysis will provide a
post-structuralist critique of this analysis.
Jones et al. (1998) argue that critical policy analysis should analyse textual
practices, as authors such as Mukherjee (2000) have later done. Mukherjee
found that “attention to names, frames, and arguments revealed how political
language worked to harness a specific knowledge of telecommunications privacy
concerns, and to legitimize particular privacy claims over others.”
This textual approach is used to provide a meta-analysis of the data collected
through the research.
Howarth (1998) argues that “although discourse theorists acknowledge
the centrality of theoretical frameworks in determining their objects and
methods of research, they are concerned to avoid theoretical concepts subsuming
the empirical cases they are investigating”. This idea, drawn from the
work of a number of post-structuralist thinkers including Foucault, will
be used to guide the research.
As part of this critical policy analysis ideas drawn from Foucault’s
work on surveillance are used; the structural elements in Foucauldian thought
lend themselves readily to integration into a policy network approach. One
of the key ideas developed by Foucault is that of panopticism. Foucault
identifies the panopticon as a key theoretical figure whose appearance in
1787 marked the arrival of a new technique of power, and a new system of
social control. The Panopticon, an architectural model designed by Jeremy
Bentham, was devised as a new method of controlling prison populations through
a system of physical observation dependent upon this architectural
model.
The panopticon is an annular prison building, composed of 2 functional parts
– center, and periphery. Inmates are housed in the periphery, in individual
cells which are separated from each other and have windows facing out from
the periphery and into the center. At the center lies an observation tower,
from which guards can watch the activities of inmates through the windows
facing towards the tower, lit up by light from the outer windows. The key
to this technique of control lies in the fact that prisoners cannot see into
the central observation tower and thus cannot know at any time whether or
not they are being watched, which leads to a new kind of discipline dependent
upon the visibility of the subject and the invisibility of the
controller:
“Each individual, in his place, is securely confined to a cell from
which he is seen from the front by the supervisor; but the side walls prevent
him from coming into contact with his companions. He is seen, but he does
not see; he is the object of information, never a subject in communication.
The arrangement of his room, opposite the central tower, imposes on him an
axial visibility; but the divisions of the ring, those separated cells, imply
a lateral invisibility. And this invisibility is a guarantee of order. If
the inmates are convicts, there is no danger of a plot, an attempt at collective
escape, the planning of new crimes for the future, bad reciprocal influences;
if they are patients, there is no danger of contagion; if they are madmen
there is no risk of their committing violence upon one another; if they are
schoolchildren, there is no copying, no noise, no chatter, no waste of time;
if they are workers, there are no disorders, no theft, no coalitions, none
of the distractions that slow down the rate of work, make it less perfect
or cause accidents” (Foucault 1977, 200).
This technique of control, Foucault argues, becomes a form exhibited in other
environments beyond the prison: schools, hospitals, factories, and in fact
throughout the fabric of society itself. Power is thus “visible and
unverifiable”. One knows one may be being watched, but one never knows
at any given moment whether one is. This theory is used to provide a critical
analysis of the networks described in the earlier phase of the
research.
When this research was begun, it was initially intended that the
Telecommunications (Interception Capability) Bill would provide an organising
theme around which to base a study into the role of ISPs in privacy policy
networks. However, preliminary research into the Telecommunications (Interception
Capability) Bill revealed that little material was available in terms of
documentation, due to the early stage in the legislative process at which
it was situated. It had originally been hoped that documentation related
to this bill would provide useful information regarding potential subjects
to participate in this study; this was not the case. However a related piece
of legislation, Crimes Amendment Bill (No.6) and SOP 85, was discovered which
also dealt with the issue of electronic surveillance. This bill had already
been through the Select Committee stage of the legislative process and
submissions had been received on it. These submissions provided a list of
interested groups and individuals who had been actively involved in the
legislative process, and thus were identified as participants in the privacy
policy network which I was researching. Other participants were identified
through a consideration of key documents, and as an ongoing process as the
research developed and more information became available. Subjects were selected
based on whether they had played a significant role in policy networks or
had possessed significant knowledge of these networks. Interviewing was selected
as the method of research because it would allow the subjects more freedom
to express their experiences and knowledge than a survey, and it was anticipated
that this method would provide a higher quantity and quality of
data.
In order to develop a picture of ISPs involvement in this network, a research
process was developed which examined the passage of these two bills through
parliament. The methods adopted to examine this progress constituted a
combination of the examination of key documents, mostly in the form of reports
and submissions, and interviews with informants involved in the legislation
at various contact points.
Data collection was divided into three phases:
Table 1: Data Collection
Schedule
Phase One |
Preliminary Data Collection |
Collection and analysis of available documentation, including select committee
submissions and reports.
Consultation with actors. Development of a list of interview
subjects.
|
Phase Two
|
Primary Data Collection
|
Conduction of interviews prepared for using material gathered in phase
one.
|
Phase Three
|
Follow-up Data collection and Analysis
|
Further data collection in the form of documents and analysis of collected
data.
|
Phase one involved the selection of interview participants and contacting
and corresponding with them. Participants were chosen from both the public
and private sectors, and an attempt was to select a sample representative
of the involvement of groups situated at various points in the political
spectrum. Preliminary research was conducted where possible by examining
parliamentary documents relating to the Crimes Amendment Act (No.6) and SOP
85.
An initial strategy for each interview was developed by examining the
documentation researched in phase one and the interviews themselves were
carried out in phase two. Each interview was recorded and subsequently
transcribed. Interviews were loosely structured, but were focused upon obtaining
information relating to the role the participant’s organisation had
played or was playing in the passage of the legislation concerned. Participants
were also invited to comment on their perceived understanding of the policy
networks involved, and who they identified as key players. Information gathered
earlier in this phase from participants such as Bott was used to identify
other potential participants whose role was not apparent from initial
consideration of documents.
Questions that were asked of all participants included:
·
What is the interviewee’s position within
the organisation?
·
What are his/her responsibilities and roles
within the organisation?
·
What part has he/she played on committees,
and to what extent has he/she played a role in the development of
submissions?
·
What role has the organisation played in the
passage of the Crimes Amendment Act (No.6) SOP 85 and the Telecommunications
(Interception Capability) Bill?
·
What role have ISPs played in this same
process?
·
What consultation processes has the organisation
been involved in?
·
How has this role changed over
time?
·
Who do you identify as key players in the
development of the Crimes Amendment Act (No.6) SOP 85 and the Telecommunications
(Interception Capability) Bill?
·
What roles have these key players
played?
·
How is privacy defined or viewed by your
organisation?
Initial questions were aimed at ascertaining the individual’s role within
the organisation, and subsequent questions at determining the
organisation’s role within the network as a whole. Participants were
encouraged to describe their perception of the policy networks involved,
but also to provide information to substantiate these perceptions based on
the interactions between groups that they had personally been involved in
or observed. Though the above questions were asked to all participants, some
were also tailored to elicit information from participants that would confirm
(or contradict) information obtained from documents of other interview subjects.
As the project developed, so did the questions being put to participants.
Thus it was only possible, for instance, to ask participants whether they
had been involved with or knew of the existence of ILETS later in the project.
Phase three involved the analysis of data according to the theoretical
perspectives outlined above. In the course of carrying out the interviews
I received a number of documents from
Because the focus of the research is in itself concerned with a problem with
ethical dimensions, particular care was necessary in the undertaking of the
project. Interviews were not anonymous, and responses have been attributed
to participants. Consent forms were used to explicitly state this, and verbal
clarification occurred before each interview. An open dialogue with participants
was fostered, so that they understood the research process and their role
in it.
A difficulty encountered in this initial selection phase involved the willingness
of those critical of the bill to speak out against it, countered by a reluctance
by many of those involved in creating and developing the bills to speak out
in defence of them. A number of key players either declined to be interviewed,
failed to respond to correspondence, or denied involvement. The Officer of
the Privacy Commissioner declined to participate in the study, though employees
provided useful advice in terms of the involvement of the organisation in
the process as a whole. Paul Swain failed to respond to correspondence, and
later staff communicated that he had not played an important role in the
legislative process. The New Zealand Security Intelligence Service (NZSIS)
failed to respond to written correspondence, and contact by telephone proved
similarly fruitless. In a number of cases (including the Law Commission and
some ISPs) key individuals who had a strong involvement in the policy process
had subsequently left the organisation, and little institutional knowledge
of involvement was retained. Identifying participants was also complicated
by the time period involved, the change in government in 1999, and the difficulty
of identifying individuals within organisations who were qualified to talk
on the material being researched.
Because of the fact that organisations were being studied, and that respondents
were individual actors, a degree of discrepancy between the individual’s
perspective and that of the organisation is to be expected. A further difficulty
that occurred was of organisations being required to tell a particular side
of a story, and in some cases only having knowledge of the network as it
affected them.
Obtaining a representative sample proved difficult, and making contact with
individuals within ISPs proved impossible. Documentation proved more useful
in obtaining data relating to the involvement of ISPs themselves, and to
the involvement of other participants in the network.
Following Dorner (2000), analysis has focused on identifying and
describing:
·
The types of communication (formal, informal)
engaged in by network entities
·
Core organisations within the
network
·
Structures and channels of communication in
use in the network.
Data has been collected from two main sources; from interviews and from key
documents. Additional information was been provided by key
informants.
Possible core organisations were initially identified by listing organisations
that were described as playing a key role in the policy process by more than
one participant. Documentation was then utilised to confirm statements as
to the importance of core organisations given by participants. The analysis
below thus provides an outline of the participants’ understanding of
the core organisations involved in the network, followed by a comparison
of this data with that collected from documents.
Information gathered in interviews related mostly to the identification of
core organisations, and a much lesser volume of information was gathered
which related to the types of communication engaged in, and the structures
and channels of communication used. Documentation provided more information
about consultations and meetings that occurred throughout the policy process
than the interviews themselves.
Interviews were conducted with the following participants:
·
David Farrar – Secretary, Internet
·
Michael Bott – Chairperson
·
Keith Locke – Green MP, Member of the
Foreign Affairs and Defence & Trade Select Committees.
·
Hugh Wolfensohn - Director of Strategic Policy
and Corporate Services, Government Communications Security Bureau
(GCSB)
·
Nick Hager – Researcher
·
W J Peoples – Crime Policy and Projects
Officer, NZ Police
What follows is a summary of the key points made and views held by interview
subjects.
Keith Locke played the role of non-voting
member on the Law and Order Select Committee, as well as being involved in
liaising with civil liberty networks.
Locke was critical of the legislation and the parliamentary processes surrounding
its passage. He noted that a large number of submissions had been made in
regard to Crimes Amendment Act (No.6) and SOP 85, and that these were
overwhelmingly critical, largely with regard to the implications of the bill
for privacy in
Locke identified the Police as the key players in the shaping of these two
pieces of legislation, and brought up their attendance at International Law
Enforcement Telecommunications Seminar (ILETS) conferences. In terms of
international influence, Locke mentioned the overseas counterparts of
He indicated that ISPs were not involved to a great degree in the whole process,
and were largely accommodating of police requirements, though some questions
of cost were raised. Only one Auckland ISP (plaNet) was seriously concerned
about the legislation.
Locke spoke of a lack of public awareness on these and other civil liberties
issues in general, and of the small number of people involved in civil liberty
causes. He argued that when people were made aware of these issues they were
generally quite concerned. Locke viewed privacy as a right, which would be
seriously undermined by this legislation, and argued that the potential for
political abuse of this legislation was significant. Locke also viewed adequate
privacy safeguards as a being beneficial to
Michael Bott is chairperson for the
Bott stated that with regards to this legislation, the council operated as
a lobby group and liaised with media to some extent. The organisation’s
involvement with the legislation began when they were informed of the bill
by a government agency; subsequently they liaised with both GOVIS (the Government
Information Systems Managers' Forum), and the Department of Internal Affairs
on these matters.
Bott identified the
Bott spoke of the chilling effect that September 11 has had on human rights,
and of an ‘end justifying the means’ mentality which had led to
an erosion in basic human rights for the sake of security. He spoke of this
as a worldwide trend which has parallels with the world described in
Orwell’s 1984 where an offshore enemy is used to justify increasing
intrusions by and expansions of the power of the state.
Bott identified overseas trends as being more draconian, but was still highly
critical of current
For the Council, privacy was mostly viewed as a freedom of speech issue;
because whatever people say might be surveilled, people would become reluctant
to speak their mind. Bott also raised the issue of the importance of privacy
for businesses as well as individuals, partly as a means of addressing a
broader audience. The Council had previously been involved in Privacy legislation
issues for instance previous legislation for the bugging of prison inmates,
and DNA testing.
Wolfensohn stated that the GCSB’s involvement in the passage of the
Crimes Amendment Act (No.6) SOP 85 was in order to avoid limitations on their
operational capabilities that would have arisen had the bill come into force
prior to their being established on a statutory footing. He stated that the
GCSB act had been gestating since he had begun working at the organisation
in 1986, when he had been given responsibility for developing a draft piece
of legislation to place the GCSB on a statutory footing. He stated that this
process had been stalled by the lack of a sense of urgency and the low priority
of intelligence and security issues for politicians in successive governments
in relation to other legislation. According to Wolfensohn there was no direct
relationship between these pieces of legislation, other than the issue of
timing. He described the Telecommunications (Interception Capability) Bill
as another piece of the jigsaw puzzle which would allow police and security
intelligence services to work more closely with telecommunications service
providers in the execution of their lawful authority.
Liaison work for the GCSB act had been with the Ministry of Justice and that
the Department of the Prime Minister and Cabinet, and with the Ministry of
Defence, the Police and the NZSIS. For the Crimes Amendment Act (No.6) SOP
85, consultation was undertaken with the Police and the NZSIS. With regard
to the Telecommunications (Interception Capability) Bill, Wolfensohn described
their work as coat-tailing on the work of the police, who he identified as
the prime-movers on this piece of legislation. The Prime Minister, the Ministry
of Justice, ODESC (Officials Committee for Domestic and External Security
Co-ordination), and the Inspector-General of Intelligence and Security were
liaised with in the course of the development of this legislation. There
was no direct consultation with ISPs or any international agencies on this
particular issue, though he thought that the Ministry of Justice might have
consulted with other countries.
He stated that post-September 11 and ‘the Bali tragedy’ that there
was an understanding by politicians of the importance of security issues
and the need for an agency like the GCSB, though also a belief that it ought
to be constrained so as not to negatively affect the privacy rights of New
Zealanders. He identified both a change in the international political
environment, and in public perceptions of this threat, which was now seen
as more real.
He was aware of the existence of ILETS but stated that the GCSB had had no
direct or indirect involvement with it. He was not aware of any relationship
between New Zealand Police or the NZSIS and ILETS. While he saw similarities
between the ILETS agenda and the changes made in
With regard to privacy, the new legislation was subject to scrutiny by the
Privacy Commissioner; furthermore, consultations had taken place with the
Ministry of Justice regarding the New Zealand Bill of Rights implications
of legislation.
Wolfensohn emphasised that the GCSB targeted foreign communications, though
should a New Zealander accidentally get caught up in an interception process
which is gathering foreign intelligence, there are strict guidelines as to
what is to be done. These are not a matter of internal policy, but are government
policy, though these are not explicitly stated in the new
legislation.
Wolfensohn agreed that there was room in the act for honouring international
intelligence agreements should they exist, but while he agreed that there
were international arrangements for the sharing of information between the
United States, United Kingdom, Australia, Canada and New Zealand, he stated
that there were no official agreements. According to Wolfensohn “there
is a full relationship between all five organizations within each of the
five countries but the details of that obviously are something that I
wouldn’t go into.”
David Farrar is Secretary of
InternetNZ
Farrar stated that membership of InternetNZ was open to all; however members
are often the de facto representatives of
ISPs. Because often no one employee
of an ISP was responsible for policy, or representative of that organisation,
employees of ISPs would often belong as individuals rather than as
representatives of ISPs. However these individuals did to an extent represent
the views of particular ISPs to the organisation. The organisation did not
see itself as an advocacy group for ISPs or its members, but for Internet
users and service providers in general.
Farrar described the process whereby InternetNZ would seek to influence
legislation by initially taking up quite a public campaign if they were critical
of a bill, utilising print and electronic media, and would get involved in
the legislative process quite early on in terms of engaging in discussions
with officials, government departments and MPs. The organisation would also
begin drafting a good select committee submission early on in the process.
However, once a bill reached the select committee stage, impact was limited
to making the Bill an effective way of doing what it was supposed to do,
rather than changing it radically.
Farrar raised two concerns that the organisation had had with the initial
draft of the bill: that quite innocent activities might be considered criminal
under the proposed legislation, and that the definitions used in the bill
were not technology neutral. Farrar was pleased at the success the society
had had in general in terms with lobbying the government. MPs on the select
committee had given the group extended hearings, and many of their suggestions
had been taken up.
He noted that there was initial public concern over the exemptions granted
to the NZSIS and the GCSB, but that InternetNZ had taken the position that
as long as their new powers remained equivalent to their existing powers
there was no undue cause for concern.
His understanding of the GCSB was that they were able to search international
traffic by keyword, though they were not supposed to target New Zealanders
in their intelligence gathering; however this did indicate that there was
a potential for a fairly blind interception system to be set up. This was
a broader issue, and InternetNZ focused on Internet issues where there was
a degree of consensus between stakeholders. Farrar raised the issue of keyword
searching, and noted that the select committee had stated that if these powers
were ever used by a surveillance agency, a case could be made to a judge
that this was not permissible.
In general the bill was viewed as positive step by ISPs who had previously
had no ability to deal with computer or cyber-crime. Cost had been an important
issue for ISPs. Privacy was also a concern, but members took a
‘pragmatic’ view, in that it was better to have a law with exemptions
for Police and security agencies, rather than no law at all. Farrar noted
that privacy was perceived as being more important for individuals than
organisations.
Farrar stated that InternetNZ had strong working relationships with their
overseas counterparts. Because of the global nature of the Internet, solutions
to many Internet issues required global solutions. However, recently enacted
overseas surveillance legislation was described as being fairly draconian,
and the potential for the impact of these laws on domestic legislation had
caused concern in the Internet community. The organisation maintained contact
with the Internet community in
Privacy issues were dealt with on a case by case basis, guided by the principle
that the Internet should be kept as open as possible.
Hager is a researcher who has written
about the GCSB, NZSIS, civil liberty, privacy and surveillance
issues.
Hager identified NZ Police, NZSIS and ILETS as key players in the network.
He was not sure what the institutional relationships were, but it seemed
that the Ministry of Justice and the Ministry of Economic Development were
promoting legislation on behalf of the New Zealand Police and the NZSIS.
The Police had started making approaches to the then National government
in the late 1990’s. Changes in government meant that sometimes legislation
was handed down without an awareness of its historical origin. Paul Swain
was identified as being heavily involved in the passage of both pieces of
legislation.
Hager argued that part of the strategy of the
Hager stated that there was no documented evidence of direct pressure being
put on
Hager believed that there was a good probability that the related pieces
of legislation had been split for tactical reasons into several different
bills, in order to hide the full implications of the legislation for civil
liberties. Unlike other countries such as the
Hager was critical of the argument that the new legislation was not an extension
of the existing powers of surveillance agencies, and merely updated their
powers to cope with new technology. Although on one level this was correct,
as it had previously been possible to intercept all telecommunications when
just telephones were used. However, the fact that technology was now so much
more a part of people’s lives meant that the impact of telecommunications
surveillance was much greater, and included new powers such as being able
to geographically locate a person through the use of mobile phone data. Hager
stated that “the potential to intercept all someone’s electronic
data in 2003 is a much, much larger intrusion into somebody’s life than
it was to intercept all of somebody’s electronic data and communications
25 years ago”.
Hager stated that the changes occurring in
Hager believed that the GCSB followed privacy requirements quite strictly
and was not likely to be a threat to New Zealanders’ privacy, though
its surveillance activities were a potential threat to the privacy and human
rights of citizens of other South Pacific countries.
Hager identified two main areas in which the legislation would have an impact:
upon the psychological climate of the country and upon the treatment of Middle
Eastern minority groups. He spoke of the powerful psychological effects that
the awareness of the potential for surveillance had on innocent citizens,
and gave the example of how it might affect a public servant who holds political
views. He believed that the main impact of surveillance on people’s
lives is the thought that it might be going on, and this was based on concerns
expressed to him by a number of people who were worried that they might be
surveilled for participation in political actions or for other reasons. Hager
himself did not think it likely that protest groups would themselves be targeted
under the current government.
For Hager, privacy was an important issue that went beyond law enforcement
issues and concepts of justice, and concerned ideas of personhood, the
relationship people have to other people and society, and the nature of public
and private space.
Peoples was the principle member of
NZ Police staff responsible for the development of the Crimes Amendment Act
no.6 (SOP 85) and the Telecommunications (Interception Capability) Bill.
From 1993 to 2000 he held the position of Legal Advisor, and is currently
the Crime Policy and Projects Officer for NZ Police.
Peoples stated that he became involved with the policy process in 1993 as
legal advisor for NZ Police. Prior to this time, Police were pursuing law
changes relating to interception, and were seeking to develop changes in
legislation in relation to the ability to obtain warrants and to interception
capability. Both items of legislation were seen as originating within NZ
Police, and stemmed from concerns that a vital component of police operations
would be seriously hampered without new legislation to cope with changes
in telecommunications technology. In 1995 (under the then National government)
the Ministry of Commerce led work on the development of an interception
capability bill. A draft of this bill was developed in 1997, but the change
in government meant that work on this bill was delayed for a number of years
before being adopted by the Ministry of Justice under Labour.
Peoples identified three law enforcement agencies (GCSB, SIS and NZ Police)
as having had input on the legislation, though NZ Police were identified
as being the central impetus behind it. The Ministry of Commerce and the
Minister of Communications were identified as having played an important
role under the National government, and the Ministry of Justice under the
Labour government. The Privacy Commissioner had also been involved, through
discussions with the Ministry of Justice. A fairly extensive consultation
process was undertaken between Police, the Ministry of Justice and
telecommunications industry representatives before the bills were introduced.
The key players from the telecommunications industry were identified as Telecom,
Vodafone and Telstra-clear. A number of smaller ISPs were identified as having
been involved to a lesser degree. The industry was not opposed to the legislation
and in principle agreed with NZ Police concerns. Problems raised by the industry
were of a more logistical nature. Meetings were formal and took place at
the Ministry of Justice, which coordinated the consultation process. This
process involved the discussion of the financial implications of the legislation,
as well as the technical implications and the different obligations for various
parts of the telecommunications industry.
ILETS was identified as playing more of a peripheral role in the development
of the legislation. Peoples described ILETS as a forum in which various
international law enforcement agencies could discuss and share ideas relevant
to interception and telecommunications issues. NZ Police had attended ILETS
two or three times, and the forum provided feedback on how different countries
were responding to similar problems. According to Peoples, NZ Police had
last attended ILETS when it was held in
The work of ILETS was seen as an attempt to provide guidance on the development
of legislation and technical standards, and to avoid gaps in international
legislation. ILETS weren’t able to dictate to
Privacy was considered a necessary and essential element of society, but
there were occasions when the concerns of law enforcement overrode an
individual’s right to privacy. Interception powers were not seen as
being extended by the law changes; rather, the changes were seen as necessary
to maintain existing powers.
In the course of conducting the interviews it became apparent that a number
of entities not identified in the course of preliminary investigations played
a much more significant role than had been previously imagined. In addition,
the role of ISPs and the degree of influence that they had had in the legislative
process appeared to be less significant than had been previously
anticipated.
All respondents situated the changes in a changing global environment that
was dominated by security issues. Respondents differed in their response
to this changing environment; some saw security issues as being more important
now, while others saw these changes as being used as justification for increased
state powers of surveillance.
The following entities were identified as significant by one or more of the
correspondents:
·
Department of Foreign Affairs
·
Department of Internal Affairs
·
GCSB
·
GOVIS
·
ILETS
·
Inspector-General of Intelligence and
Security
·
ISPs
·
IT Media
·
Law and Order Select Committee
·
Ministry of Commerce/ Ministry of Economic
Development
·
Ministry of Justice
·
NZ Police
·
NZSIS
·
ODESC
·
Privacy Commissioner
The following groups were identified as significant by more than one
correspondent:
·
ILETS
·
ISPs
·
Ministry of Justice
·
Ministry of Commerce
·
NZ Police
·
NZSIS
·
Privacy Commissioner
The degree of influence attributed to various agencies varied greatly across
the sample, however some points of agreement were found. Bott, Hager, Locke,
Peoples and Wolfensohn all identified the NZSIS as playing an important role
in the development of this legislation. Hager, Locke, Peoples and Wolfensohn
also identified the NZ Police as being key players. The Ministry of Commerce
was identified as a key player by Hager and Peoples. The Ministry of Justice
was identified as a key player by Farrar, Hager, Locke, Peoples and Wolfensohn.
ILETS was identified as a key player by Hager and Locke. ISPs were identified
as key players by Farrar and Peoples.
All participants emphasised the global nature of networks, and identified
the international counterparts of
Although ISPs were consulted at various stages in the process, little importance
was ascribed to their role in the legislative policy process by any of the
participants other than Farrar and Peoples. Locke engaged in dialogue with
one concerned ISP, plaNet. Hager stated that the nature of their involvement
was largely regarding the financial implications of the Telecommunications
(Interception Capability) Bill.
Information gathered from the participants suggested that a variety of channels
were available for communication within the policy network. Predominantly
these were part of the standard legislative process, and involved presentations
to the select committee, and consultation between the Government and the
various groups involved. International communication channels allowed
communication between
While the roles of the NZ Police and the NZSIS were described as important,
only Hager and Peoples (in the case of the Police only) were able to articulate
the importance of their role, due to their research and involvement in this
area.
Information provided by participants did not in general provide a detailed
view of the policy networks in itself, though it did provide an insight into
possible directions for further research.
The interview subjects all viewed the concept of privacy quite differently.
Locke was concerned that privacy as a civil liberty and a human right was
not given the same weight that justice was given in debates over the legislation.
For Bott, privacy was seen as being closely related to freedom of speech,
and civil liberties issue. Wolfensohn emphasised compliance with the New
Zealand Bill of Rghts, while Farrar emphasised the importance of openness
of the Internet. Farrar emphasised that most members of InternetNZ took a
pragmatic approach towards privacy issues, and noted that it was a more important
issues for individuals than organisations. Hager took a more philosophical
approach and argued for the importance of privacy in defining relationships
between people in a society, and for the understanding of subjectivity and
personhood. Peoples saw privacy as a necessary aspect of society, but not
as important as law enforcement in certain cases.
In parallel with the carrying out of interviews, an analysis of documents
generated in the course of the passage of the Crimes Amendment Act (No.6)
SOP 85 and the Telecommunications (Interception Capability) Bill was undertaken.
Most of these documents were provided by
Table 2: Progress of the Crimes Amendment Act (No.6) SOP 85 and the
Telecommunications (Interception Capability) Bill:
|
First |
Select Committee Report |
Second |
Third |
Assent |
Crimes Amendment Bill (No.6) |
|
|
|
|
2003 |
Telecommunications Interception Capability Bill |
|
|
|
|
|
The most interesting information provided by an analysis of the parliamentary
debates was with regard to the change in rhetoric that occurred subsequent
to
Keith Locke was critical of the bill and argued for the need for a clause
that an ombudsman should audit intercepts, though this was only supported
by Ron Mark (NZ First). The Greens were the only party to oppose this
bill.
Parliamentary debates relating to the GCSB Act also employed this ‘age
of terror’ rhetoric to justify the legislation, and in the second reading
Richard Prebble (ACT) argued that “in an age of international terrorism,
we need to know what those who think evil thoughts about this country and
our security systems and trade are doing. One way of doing that is to
electronically monitor them.”
The Telecommunications (Interception
Capability) Bill: Select Committee Report (2003) emphasises that the
legislation is similar to that which as been enacted in the
These debates did not yield any insight into the policy networks involved,
though they did reveal the extent to which international legislative developments
were used to justify changes to domestic policy, and the impact that
What follows is a description of organisations identified by participants
as important and an elaboration of their role in the policy network through
the use of data collected from key documents and interview answers.
ILETS was identified as playing an important role by Locke and Hager. It
was formed in 1993, and developed a role through the 90s as a key lobby group
influencing
An ILETS report from 1999 explains their goals and operating methods explicitly.
It states that ILETS
“is an annual gathering
of law enforcement and national security agencies from a number of countries
that provide for lawful telecommunications interception. The purpose of the
seminar is to provide a forum of cooperation where developments, issues,
problems and possible solutions in the area of lawful telecommunications
interception can be considered and addressed. These issues are looked at
in the framework of the national laws of the country of the agencies attending,
and with regard to the obligation to protect the human and civil rights of
the individual, including their rights to privacy. Recommendations emanating
from the seminar can then be put to the respective governments to whom the
agencies are ultimately responsible, for their consideration, and if accepted,
adoption and implementation. ILETS does not rely upon a resolution or directive
of any international organisation or group of countries for its
existence.”
The Dictionary of Computer Security (2003) states that ILETS is “thought
to be behind the growing worldwide tendency for governments to establish
'legal interception' of telecommunications.” It also states that “it
is generally believed that the National Security Association (NSA) has a
guiding but low key involvement”, a point also made by
The 1994 meeting of ILETS in
IUR 1.0 gives the broader objectives of the international requirements for
interception as:
·
To serve as a Harmonised set of international
interception requirements, which can be used in the development of national
policies;
·
To increase awareness of law enforcement’s
interception needs in many countries;
·
To provide guidance to telecommunications
network operators, service providers and manufacturers for meeting interception
obligations;
·
To stimulate the development of telecommunications
industry standards for fulfilling interception orders and to ensure that
technical standards do not frustrate interception orders.
(International Telecommunications Union 1999).
The IUR also outlines a number of technical requirements for interception.
The requirements proposed are recommended for use by law enforcement agencies,
national telecommunications authorities, national legislative bodies and
international standards organisations “in discussions with the
telecommunications industry on fulfilling interception orders” (ibid.)
The IUR was incorporated into an agreement known as the ‘MoU’
(Memorandum of Understanding) which was signed by the European Communities.
A declaration of support for the MoU was also signed by
ILETS employs an approach based on the development of technical standards
required for interception, and the development of legislation to support
these standards, an approach explicitly taken by New Zealand Police (see
below). Thus ILETS has engaged both with the Public and Private sectors in
its efforts to achieve its objectives, as the NZ Police and the NZSIS
have.
It is worth quoting in full the 1996 statement of Australian Attorney-General
Daryl Williams for the insights this yields into the process as a
whole:
“Having regard to the discussions that have taken place within the
International Law Enforcement Telecommunications Seminar concerning law
enforcement’s requirements for telecommunications interception, I have
taken note of the International User Requirements for the Lawful interception
of telecommunications as annexed hereto. I will endeavour to ensure that
the Requirements are taken into account in appropriate national policies
and recommend that they be used as a basis for discussion with the
telecommunications industry, standards bodies, telecom operators and others.
In view of the continuing evolution of telecommunications technology, I would
welcome further cooperation within the expert group in reviewing periodically
and updating the International User Requirements.”
(Australian Security Intelligence Organisation, Fax, 1996)
To assume that the same agreement transpired here would require a fallacious
jump in logic; however, upon consideration of documents available it quickly
becomes apparent that similar agreements were made in
According to the ILETS ’99 report, “Attendance at ILETS is by
invitation only. “ The report also states that “ILETS members shall
also have regard to whether it is in the overall interests of ILETS that
the agency be invited to attend”.
ILETS operates behind closed doors, and it is clearly its intention to be
as secretive as possible. In the ILETS ’99 report, it is stated that
with regard to communications with the media, it should be stressed that
“ILETS is not a formal group, and therefore there is no formal
membership.” It is also stated that “each country must observe
its own regulations, and there will be cases for which answers may be forwarded
to the national parliament. If such exposure happens, notification should
be sent to all members. The LAG [Legal Advisory Group] will publish a FAQ
and list of responses”. Documents are not to be released and guidelines
are not intended for public consumption. A decision to develop a
“chapeau” to “cover off the questions such as
accountability” is announced, and only this “chapeau” can
be used by members and their governments for publication.
A 1999 article by Paul Brislen includes the following comments by New Zealand
Police on the organisation: “It’s all supposed to be top secret.
I’m surprised you got hold of the name even.” No information about
the activities and meetings of ILETS since 1999 has been made publicly available,
through leaks or otherwise.
NZ Police were identified as being key players by Hager, Locke, Peoples and
Wolfensohn.
According to Brislen (1999), ILETS was planning to lobby the
The ILETS ’99 report includes a membership requirement that “the
state of the invited agency shall also subscribe to the international user
requirements adopted by ILETS and take the necessary steps to implement
them.” As members of ILETS, this was the obligation placed upon the
NZ Police and the NZSIS.
It was not until 1996 that Police met with the Ministry of Commerce to begin
legislating for the requirements proposed by the IUR and the MoU. Internal
correspondence from 1996 October indicates that a meeting took place in June
regarding the interception of private communications in
“The New Zealand Police support a two tiered approach to the issue of
interception and technology. Initially, work has progressed with current
network operators, Telecom and Bellsouth [purchased in 1998 to become part
of Vodafone Group Plc], to ensure that their communication systems are able
to provide Police with an interception capability. Secondly, Police support
a legislative response which would see both the current and future network
operators being required to provide intercept capabilities.”
The report goes on to outline international developments in legislation in
the
An October 1996 fax to Police states that the ILETS Secretary made enquiries
to the New Zealand Police to ascertain their intentions with regard to the
MoU, and an individual within the New Zealand Police was instructed to and
did in fact reply that “New Zealand Police were currently working with
the Ministry of Commerce to obtain Government support for the MoU”.
In the interview conducted with Peoples, he stated that he was aware of the
existence of the MoU, but that it had never been signed up to by Police on
behalf of
The Police report also mentions that the possibility of introducing the
requirements in the form of a license was considered, but concludes that
“for the purpose of providing a standard which must be met by network
operators, legislation is required.” It goes on to state that “by
legislating for interception capabilities, New Zealand would be seen to meet
international expectations recognised throughout Europe, the United States,
Canada and Australia” (NZ Police 1996) and furthermore that New Zealand
would not be seen as a ‘weak link’ in terms of international
security.
In 1998 New Zealand Police handed out an ILETS survey to Telecommunications
network operators and ISPs, and asked for feedback on a number of technical
issues. An Fax from Police to Bellsouth from July 1998 states that the New
Zealand Police and the NZSIS are members of ILETS and states that at ILETS
1998 in Ottawa they “were asked to provide details of New Zealand
Telecommunications Service Providers Architectures” via an attached
questionnaire. A Fax from Police to Saturn Communications in October 1998
requests their co-operation in the completion of the same questionnaire,
which was to be sent on to the ILETS Secretariat.
As IUR 1.0 was adopted word for word by the EU,
“In respect of International User Requirements for Interception, we
are proposing to include in the amendment to the Telecommunications Act a
regulation making power – and to simply copy the IURs into the regulations.
This way they will be updated as and when they change”.
These regulation making powers did in fact become part of the Telecommunications
(Interception Capability) Bill, and although the select committee has recommended
some changes to this part of the bill (clause 28), even if these changes
are made a general regulation making power will remain. In the interview
undertaken with Peoples, he stated that there was an earlier attempt to tie
the IUR into the Telecommunications (Interception Capability) Bill through
the ‘regulation making power’ clause, but NZ Police later thought
that the legislation would be sufficient in itself without outlining any
specific technical requirements. The ‘regulation making power’
clause remained, as Police thought that if the situation changed in terms
of the requirements for interception, the situation would need to be
reconsidered.
The IUR is also referred to, somewhat obliquely, in the “Maintaining
Interception Capability” report (NZ Police,
1996). The report states that
“a standard set of requirements for law enforcement agencies to intercept
telecommunications have been developed. A number of overseas governments
have endorsed these standards as providing a guide when developing policy
or legislation on this issue.”
According to Hager (2000), Police initially denied the legislation had links
to FBI plans. Assistant Police Commissioner Paul Fitzharris later admitted,
in October 2000, that the “proposed legislative changes would bring
Internal correspondence indicates that SOP 85 was developed by Police and
the Ministry of Justice, with contact with the Ministry of Economic Development
and with some assistance from the GCSB (Email from
Morrell[3]
to Peoples, 2000). The increasing use of computers for communication and
crime, and the need to be able to collect and utilise electronic evidence
in order to be able to prosecute under the new crimes created under Crimes
Amendment Bill (No.6) were cited as reasons for the development of the SOP.
In a 1999 letter from Police Commissioner Peter Doone to the Minister of
Police, Doone states that “Because the crimes amendment bill is responding
directly to technological advances impacting on crime, Police believe this
is a most suitable legislative vehicle for the amendments to be contained
in”.
A letter from Peoples to the Ministry of Justice in February 1999 state that
‘with the emphasis on the privacy of the individual, organisations are
increasingly reluctant to provide Police with assistance to investigate crime
without being compelled to do so by law”. According to this correspondence,
Police were placed under significant time constraints when initially consulting
with Cabinet regarding the Crimes Amendment Bill (No.6), and this seems to
be the reason why it was necessary to include the results of later consultation
in a supplementary order paper. Issues of the global nature of offences and
the use of encryption were also discussed by Police and the Ministry of Justice
at this time, but remained unresolved.
An email from Peoples to Kerr in 2000 states that the changes contained within
this the Telecommunications (Interception Capability) Bill were previously
agreed to by Cabinet, but did not receive sufficient support in 1999 for
introduction. At the time of this correspondence, the Ministry of Commerce
were attempting to have this bill placed back on the legislative agenda through
contact with the Cabinet Legislation Committee.
The “Maintaining Interception Capabilities” report (NZ Police
1996) states that police had
spent an undisclosed figure upgrading the interception capability of
Telecom’s network. Another Police report from 2000 states that:
“Currently, the principal concern for Police is the escalating cost
of obtaining information from telecommunication companies. Charges levelled
by Telecom for information provided pursuant to search warrant amounts to
$0.5m. Vodafone have begun to charge Police for information obtained under
search warrant basing their costs on an estimated annual figure of between
$800k – 1m.” An email
in April 2000 from Peoples to Morrell mentions that Vodafone was charging
this figure for a service provided by 1 fulltime and 1 part-time staff member,
and argued that this cost should be shifted back to the private sector. This
same email mentions that at this time Police sought to involve Treasury and
Commerce in discussions regarding the legislation.
Police contact with Government to pursue the legislative approach outlined
above is confirmed through documentation from 1996, and occurred initially
through the then National government. Initial meetings occurred through the
Ministry of Commerce and began at least as early as June 1996, as at this
time they had already been considering the issues prior to this ‘Glass
Room’ meeting of the NZSIS and New Zealand
Police[4].
The Minister of Commerce at this time was John Luxton, who took over from
Philip Burson in a 1996 Cabinet re-shuffle. Luxton held this portfolio until
late 1998, when Max Bradford became Minister of Enterprise and Commerce,
though it is unclear who from the Ministry was involved during this
period.
A report from this ‘Glass Room’ meeting states that “the Ministry
of Commerce has been studying privacy issues related to interception powers
in the telecommunications context, and would wish to be consulted in the
development of the Police’s proposals” (Field 1996). Civil liberty
concerns were raised in response to the possibility of extending the range
of offences for which interception warrants might be obtained. The report
also proposed that an officials group be created with representatives from
the Police, Ministry of Justice, Commerce and the Office of the Privacy
Commissioner to produce a report on these issues.
The Ministry of Commerce was identified as a key player by Hager and Peoples,
and this document show that this Ministry was involved in the development
of interception legislation from an early stage. It certainly played a lesser
role later, as the Ministry of Justice became more involved.
The Ministry of Justice was identified as a key player by Farrar, Hager,
Locke, Peoples and Wolfensohn. The Ministry was involved from at least as
early as 1999, and was responsible for the both the Crimes Amendment Act
(No.6) SOP 85 and the Telecommunications (Interception Capability) Bill.
Paul Swain was Associate Minister of Justice, Minister of Commerce and Minister
of Communications from
A Cabinet Social Policy and Health Committee paper from July 2000 explains
that a decision was made in March 1999 by the then National Government to
create a number of new offences relating to computers under the Crimes Act.
These offences included the unauthorised access of computers (hacking), but
it was decided that before a decision was made more consideration was required.
The report also refers to a decision in April 2000 by the Ad Hoc Cabinet
Committee on Intelligence and Security (AIS) to include exemption provisions
for surveillance agencies with regard to the misuse of computers. The paper
proposed that a Supplementary Order Paper be created to cover the crime of
unauthorised access, to widen the definition of interception offences to
include electronic communication, and to provide exemptions to these offences
for surveillance agencies.
This document states that consultation was undertaken with: the New Zealand
Police, The NZSIS, the GCSB, the Serious Fraud Office, the Department of
Customs, the Department of Prime Minister and Cabinet, the Ministry of Economic
Development, the Department of Corrections, the Department of Internal Affairs,
the New Zealand Defence Force, and the Office of the Privacy Commissioner.
A number of other departments were informed and invited to comment, but did
not provide feedback.
Section 36 of the report deals with the privacy implications of the SOP,
and concludes that the proposal is satisfactory in this regard:
”The new offences of unauthorised access to a computer system and
intercepting non-oral private communications enhance protection of individual
privacy and are supported by the privacy commissioner. However, the exemptions
for law enforcement agency and intelligence organisations represent an inroad
into those new privacy protections and concern intrusive forms of investigation
and surveillance. The key law enforcement agency compliance issue is with
information privacy principle 4(concerning means of collection of personal
information which are unlawful, unfair or which unreasonably intrude upon
personal affairs). The proposals also have implications for agencies that
hold or receive data communications such as telecommunications network providers
and Internet service providers in terms of information privacy principle
11(disclosure of personal information). I am of the opinion that, given the
limits of the exemptions and the warrant processes, the proposals comply
with the principles”
A later Cabinet report from August 2000 states that the Ministry of Economic
Development initiated work in 1998 on making networks interception capable.
It also states that Police have funding set aside for upgrading technical
capabilities, and that the issue of making networks interception capable
would be addressed later in the year in the context of amendments to the
Telecommunications Act.
ISPs were identified as key players in the policy network by Peoples and
Farrar, though little information regarding their involvement was obtained.
The following information gathered during the consideration of key documents
has been provided in order to better describe their role in the development
of policy, what pressures they were subject to, and what channels of
communication they were involved in.
Communications between BellSouth (Vodafone) and the Ministry of Commerce
indicate their willingness in principle to see the proposed legislation go
forward as part of their duty as a “good corporate citizen”. (Toye
1998). However concerns were
raised regarding cost implications, as has been noted previously. Clear (now
Telstra-Clear) raised concerns in 1998 regarding the cost implications of
the legislation, technical issues, and the lack of time given to respond
to proposed changes. (Stone 1998). Telecom, as has already been noted, had
been made interception capable to some extent through police funding. Police
were keen to shift the cost of interception to the private sector (Peoples
1999), and ISPs were reluctant to accept this burden.
Another concern which ISPs raised with Police was that being seen to intercept
the communications of their own customers might prove to be bad for business.
However Police argued that “Legislation would remove the concern that
network operators have of being seen to assist the Police investigate their
own customers” (NZ Police 1996).
Although the response to comparable legislation overseas had seen some criticisms
made by ISPs (Brislen 1999; Campbell 1999) and Keith Mitchell, the chairman
of the London Internet exchange (LINX), had commented that the costs of such
a system would be astronomical, and that “this kind of monitoring approach
is based in a world view of telecoms operators which is both technically
and economically outdated” (Campbell 1999). New Zealand ISPs were not
as forthcoming with any comments or criticisms they may have had, aside from
Telecom, who had initially expressed concerns about the technical requirements
of interception, based on the volume of traffic (Brislen, 1999).
Little information was available which covered the relationship New Zealand
network operators have to the International Telecommunications Union (ITU),
though research showed that this group had been working with ILETS since
1995 (International Telecommunications Union 1999). This may have been another
channel through which New Zealand ISPs were influenced.
Another point worthy of discussion is the change in operating environment
created for surveillance agencies as previously state–owned
telecommunications operators became privatised. Previously when
telecommunications operators had been state owned, the interception process
had been somewhat simpler, but with the proliferation of service providers
for telecommunication and Internet services at the same time as the development
of new communication technologies, the job became more complex. An email
in 1999 from King to Toye stated that Maurice Williamson (Minister of
Communications) was concerned that an increasing proliferation of service
providers might lead to problems if the legislation weren’t acted upon
quickly.
As is standard procedure, the Privacy Commissioner was consulted at various
times throughout the development of the legislation on both a formal and
informal basis. Initial consultation began in 1996 and continued throughout
the progress of the bills.
A fax from the commissioner to Maurice Williamson (Minister of Communications)
in 1998 raises the fact that the Ministry of Commerce does not, according
to a cabinet paper, see any privacy concerns with the interception capability
legislation. The commissioner also felt that the timeframe he had been given
for consultation was far too short.
He criticised the report for stating that interception capability was standard
in developed countries, giving the example of five countries which had legislated
for it (United States, United Kingdom, Canada, Australia and Sweden) when
these were the only countries whose laws had been researched. He concluded
that the proposed laws did have adverse implications for privacy, and that
these implications had not been fully explored. He also argued for the need
for an independent auditing authority.
The Privacy Commissioner argued that the amendments introduced in SOP 85
both enhance and intrude into privacy.
He proposed the following amendments to the Crimes Amendment bill
(No.6) SOP 85:
(a) to create an interception register and have this audited by a suitable
independent body such as the Police Complaints Authority;
(b) to grant that independent body a power to require the Police, in exceptional
cases, to notify individuals whose communications have been intercepted of
the fact, at a suitable point after the interception or investigation is
completed;
(c) to establish a right to compensation for unlawful
interception.
The NZSIS was identified as a key player by Bott, Hager, Locke, Peoples and
Wolfensohn. The service is likely to have been involved in this network since
at least 1995, and may have attended ILETS ’95, though it is unclear
what
The Service’s budget for 2001/02 was increased by the government from
$12,000,000 to $13,518,000 in response to the events of
While one can conclude that the NZSIS is currently playing a more important
role than it has in recent years, it is difficult to determine whether this
led to it playing a greater part in the development of this legislation.
The lack of documentation available and the reluctance of the agency to grant
an interview has meant that assessing the real impact of the agency in the
network studied has been difficult. While documents show that the SIS has
been involved with ILETS and the service admits that it “has liaison
arrangements with a number of security intelligence organisations
overseas “(New Zealand Security Intelligence Service 2002), little
further information is available.
As with the NZSIS, the secretive nature of this organisation makes it difficult
to assess their overall influence in the progress of this legislation, though
it has certainly played at the very least a significant peripheral role,
if only terms of ensuring that adequate provisions were made to ensure that
GCSB surveillance capacities were not impaired by the new legislation. By
their own account meetings occurred between the GCSB and Police, the NZSIS,
the Ministry of Justice, ODESC and the DPMC.
The Inspector-General of Intelligence and Security was requested in 1996
by then Prime Minister Jim Bolger to address concerns that the GCSB intercepted
the private communications of New Zealanders. The Inspector-General’s
report concluded that these communications were not targeted, and when they
were accidentally intercepted, their identification was suppressed in final
reports disseminated by the GCSB (Greig 1998). Furthermore, Greig states
that “GCSB operations do not compromise the legitimate privacy interests
of New Zealanders”. Again in 1999 the then Prime Minister Jenny Shipley
requested that the Inspector-General of Intelligence and Security report
to her regarding: “the extent to which the GCSB’s collection and
reporting activities are driven by the foreign intelligence requirements
of the New Zealand Government;” and also “the agreements whereby
New Zealand’s SIGINT facilities are used to meet the intelligence
requirements of our intelligence
partners”. This was in response
to a number of concerns that had been raised in
Data collected from interviews and confirmed through documentation suggests
that the most important groups who played a role in the creation of the
considered legislation were:
·
ILETS
·
ISPs
·
Ministry of Commerce
·
Ministry of Justice
·
NZ Police
·
NZSIS
·
Privacy Commissioner
These organisations were identified as core organisations on the basis
that:
i.
they were identified as key players by at
least two of the interview participants, and
ii.
this information was corroborated by
documentation.
Individual ISPs identified as being important were named by Peoples as being
Telecom, Vodafone and Telstra-Clear, a fact confirmed in NZ Police
correspondence.
The following groups played an important but less significant
role:
·
Cabinet
·
GCSB
While the GCSB was named as a key player by a number of the interviewees,
insufficient documentation was obtained to enable the confirmation of the
extent of their involvement. While Cabinet clearly played an important role,
it was not identified as a key player in the policy network by any of the
interviewees. A number of other organisations were identified by interview
subjects as playing significant roles, but these were not identified as core
organisations according to the criteria given above. These other organisations
are:
·
Department of Foreign Affairs
·
Department of Internal Affairs
·
GOVIS
·
Inspector-general of Intelligence and
Security
·
IT Media
·
Law and Order Select Committee
·
Law Commission
·
ODESC
The role of
The role the United States has created for itself as an international police
force, and the degree of influence it holds both in economic and intelligence
circles would seem to suggest that discussions involving ILETS regarding
interception capabilities may have been to a large extent unilateral. It
remains a matter of some speculation as to the nature of this relationship,
and it is not a matter readily accessible to public scrutiny. Without doubt
Diplomatic pressure or influence may have played some role also, though it
is difficult to ascertain to what extent. A letter received by the New Zealand
Mission to the European Communities in 1996, which was subsequently forwarded
to New Zealand Police National Headquarters, the Ministry of Commerce and
the Ministry of Justice, outlines the adoption by the Council of the European
Union of the IUR and invites the recipients to “take note of this letter
for the purpose of your further discussions with the telecommunications industry,
standards bodies and telecommunications operators”.
One conclusion that may be drawn from this research is that the policy networks
that have been studied are essentially global in nature. These ‘global
policy networks’, which involved both private and public sector groups,
were identified as important by all of the interview subjects. For instance,
there exists a strong international network of privacy commissioners, which
was used extensively during the crisis provoked by legislation enacted
internationally subsequent to September 11 which was pushing in a direction
inimical to privacy. These global networks allowed international trends to
be identified by public sector, private sector, and civil liberty groups.
The public sector tended to use information provided through these networks
to justify policy in terms of it bringing New Zealand into line with
international trends. Civil liberty groups used these global communication
channels as an early warning system to identify international developments
in technology and legislation that were causing debate overseas with regard
to their implications for civil liberties.
The research tended to suggest that a number of policy networks were involved
in the development of this legislation, each possessing a global aspect.
These were the Governmental network, which included the Ministries of Justice
and Commerce, Cabinet, Parliament, and the various committees involved. Closely
related to this, but to some extent independent was the law enforcement and
intelligence network, which included Police, NZSIS and the GCSB. A network
of civil liberties groups concerned by the privacy implications raised by
the issues involved was also identified by this research, although this network
was much more loosely formed than the other two. Communication between groups
did occur however, and at least one public meeting was organised.
While ISPs have played a pivotal role, their relationship with each other
and other international groups (such as the ITU) has not been observed in
the context of this piece of research to describe them forming, in these
particular circumstances, a network of their own. To some extent they are
connected to each other through InternetNZ, though this is largely an informal
relationship; however this relationship did mean that they were well represented
in the policy process. Individual network operators/ISPs have however been
involved closely with the Police, in determining how interception capabilities
might best be implemented, and in discussions over cost.
The original research question which this project was to address was formulated
as:
How have ISPs influenced and been
influenced by privacy policy networks in
This network was defined as “the networks of organisations involved
in the development of public policy and legislation that has privacy
implications.” This network was further limited by the researcher to
that related to two specific pieces of legislation, the Crimes Amendment
Act (No.6) SOP 85, and the Telecommunications (Interception Capability) Bill.
This privacy policy network has been shown to have been composed of multifarious
networks, each with a global character. It has been shown that ISPs have
played a significant role in this network, though not a dominant one. In
terms of influences upon them, these have been shown to be significant, and
largely dominated by the interests of domestic and international law enforcement
groups, mediated through the New Zealand government. This impact may be measured
in terms of the cost of compliance with the new legislation.
The primary objective was to determine what roles different organisations
had played in the development of public policy relating to Internet privacy
issues with regard to electronic surveillance in New Zealand, and this was
adequately addressed by the research. The second objective of the research,
relating to how individual actors and organisations defined privacy, was
not satisfactorily answered. A small volume of data was collected with regard
to this question, although in retrospect the capacity of the project was
not large enough to address such a question in depth. It was initially intended
that the research would also address the future roles of organisations involved
in the policy networks as they saw them; however, this too proved to be beyond
the capacity of the project.
It was originally intended that the research would be limited to the study
of national networks, and the impact of global forces were to be considered
to a lesser extent. However, as the work progressed it became apparent that
it was impossible to study national networks in isolation, as they were so
much a part of global policy networks. In order to satisfy the primary objective
of the research, the scope was widened to include more research on the role
of the international organisation ILETS which had clearly played a significant
role in determining domestic policy and legislation.
The sub-problems which were identified in the initial research design were
given as follows:
i.
What influence does Government, the Office
of the Privacy Commissioner and the New Zealand Internet Society have on
policies affecting ISPs?
ii.
What influence do ISPs have on the shaping
of Public Policy?
iii.
Who are the key players involved in privacy
policy networks?
iv.
What other actors are involved in privacy
policy networks?
v.
What communication channels are involved in
privacy policy networks?
vi.
What consultation processes are
involved?
vii.
How do different actors define
privacy?
Questions (i) to (iv) have been addressed adequately by the research, as
is detailed above. Questions (v) and (vi) were addressed peripherally by
the research, but the volume of material gathered meant that these questions
were to a large extent beyond the capacity of the project. Data was also
collected relevant to question (vii), but again the scope of the project
had to be constrained in order to provide an adequate analysis of the data
yielded by questions (i) to (iv). Question (vii) could in itself generate
enough data for a separate research project. The small volume of data obtained
in interviews related to this question has been briefly summarised in the
Summary of Interviews section
above.
“And in order to be exercised, this power had to be given the instrument
of permanent, exhaustive, omnipresent surveillance, capable of making all
visible, as long as it could remain invisible. It had to be like a faceless
gaze that transformed the whole social body into a field of perception: thousand
of eyes posted everywhere, mobile attentions ever on the alert, a long
hierarchized network” (Foucault 1979, 214)
While policy network theory has been employed above to provide a structural
analysis of policy processes in the telecommunications industry, this critical
policy analysis provides a post-structuralist context for the above approach.
It constitutes an attempt to locate the structures observed in the policy
network analysis in a broader historical context, in order to analyse the
power structures present in the network that has been studied and the
implications of these. While acknowledging the reality of the network described
in the above analysis, it attempts to provide a further analysis of the
implications of the above conclusions and their implications for a conception
of power in contemporary society. Foucault’s description of the panoptic
mode of power provides the conceptual framework to go beyond a description
of the development of surveillance legislation in
When Foucault was writing, surveillance was to large extent localised and
constrained by institutional borders. The globalisation of society, the growth
of the Internet and the increasing reliance upon access to information and
the use of communication technologies in everyday life have led to the
development of a global information and communication system which is pervasive
throughout the developed countries. However, the concomitant growth in
surveillance technologies and increased international security concerns have
brought about a number of changes in the nature of surveillance, the role
it plays in everyday life and the impact it has upon privacy and
selfhood.
Law enforcement agencies have utilised concerns about paedophilia, computer
crime, international drug trafficking and terrorism to justify what is described
as an ‘extension of existing powers’. Government agencies, politicians
and police have repeatedly claimed that recent legislative changes to do
not alter their powers, but merely update them so as to make them applicable
in the modern age. While to some extent this is true, the ubiquity and
pervasiveness of information and communication technologies means that these
new powers are a much greater incursion on privacy than powers previously
held. The idea that legislation should be defined independently of technology,
that it should be ‘technology neutral’ was used to justify legislative
change by a number of politicians in Parliamentary debates, and by the NZ
Police. This idea has been addressed by Nelson (2002), who has argued that
since September 11 a new rhetoric has arisen in which surveillance technology
is viewed as necessary for the service of the common good and for the protection
of society rather than as a potential threat to society. She argues that
these new technologies and the rhetoric used to justify them present a
“unique public policy concern.” Although the scope of the project
meant that textual issues were not focused upon in the final analysis, further
research might pursue this angle in the way that Mukherjee has done, in order
to examine the assumptions and power relationships embedded in these discursive
practices (Mukherjee 2000).
The ability to amalgamate and analyse data collected from electronic surveillance
has also improved. In its most extreme form this can be seen in the now defunct
Total Information Awareness (TIA) program, which attempted to collate and
analyse electronic data on
The Council of Europe Convention on Cybercrime is currently playing an important
role in the development of legislation relating to electronic surveillance
and the Internet, and research into the effect and implications of this treaty
could provide further insights into global policy networks relating to the
Internet and privacy. Also, it may play more of a role in
Further research could also be conducted to determine the international impact
of ILETS in various counties, and into the study of the impact of September
11 upon legislation dealing with electronic surveillance in a global context.
The issue of encryption and whether encryption keys would need to be handed
over by ISPs or individual computer users who were being investigated was
debated by Police and the Ministry of Justice, and considered by the Law
and Order Select Committee. This issue has also been part of the
Counter-Terrorism Bill and the implications of this issue for privacy are
great. According to an EU STOA report, “between 1993 to 1998, the United
States conducted sustained diplomatic activity seeking to persuade EU nations
and the OECD to adopt their "key recovery" system”; in light of this
it will be interesting to see how this issue progresses. Hager stated that
the requirement to hand over encryption keys had been a contentious issue
with regard to the legislation being studied, and had been inserted into
and withdrawn from the proposed legislation a number of times. In a 1999
email from Peoples to Morrell, Peoples stated that police wished to continue
without legislating with regard to encryption, in order to avoid delaying
the passage of the legislation.
The two central concerns raised by this research were:
·
The degree of international influence on domestic
policy.
·
The lack of transparency in the process of
policy development.
As libraries play an increasingly important role in the provision of electronic
information, this legislation may become increasingly applicable in a library
context. If copyright violations become more of an issue in the digital library
environment legislation like the Crimes Amendment Act (No.6) SOP 85 might
be used to police these violations. This will mean that libraries may be
compelled to supply patron information to prosecutors. Comparable legislation
has been used in the
DPMC |
Department of Prime Minister and Cabinet |
GCSB |
Government Communications Security Bureau |
GOVIS |
Government Information Systems Managers' Forum |
ILETS |
International Law Enforcement Telecommunications Seminar |
IUR |
International User Requirements |
NSA |
National Security Agency |
NZSIS |
|
ODESC |
Officials Committee for Domestic and External Security Co-ordination |
PATRIOT Act |
Uniting and Strengthening
|
RIP Act |
Regulation of Investigatory Powers Act |
Word War 2 |
Establishment of Signals Intelligence operations |
1948 |
UKUSA Agreement |
1969 |
Security Intelligence Service Act |
1972 |
Preservation of Privacy Bill |
1973 |
Law revision Commission Report urges establishment of agency responsible for privacy and related issues |
1977 |
Government Communications Security Bureau Established |
1978 |
Misuse of Drugs Amendment Act |
1987 |
Crimes Act amended to allow for electronic interception of private communications relating to “organised Criminal Enterprise” |
1988 |
Information authority report proposes Official Information (privacy) Bill |
1990 |
|
1993 |
Privacy Act |
1996 |
Intelligence and Security Committee Act 1996 |
1997 |
Telecommunications Amendment Act |
1997 |
Harassment and Criminal Association Bill |
1999 |
|
1999 |
Crimes Amendment Bill (No. 6) |
2000 |
Supplementary Order Paper 85 added to Crimes Amendment Bill (No. 6) |
2003 |
Telecommunication Information Privacy Code released by Privacy Commissioner |
2003 |
Government Communications Security Bureau act places Government Communications Security Bureau on a statutory footing |
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[1] The Select Committee
report on the Telecommunications (Interception Capability) Bill (2003) defines
a network operator as “any person, company or business that owns, controls,
or operates a telecommunications network that can be used for public
communications”, and a service provider as “any person, company
or business that provides a public telecommunications service to an end
user”. Thus ISPs fall into the latter category, although in practice
in
[2]
[3] Vivienne Morrell, then Senior Policy Adviser, Criminal Justice Group, Ministry of Justice.
[4] According to Peoples, Police involvement with the Ministry of Commerce began in 1995.