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Revealed: govt plans secret orders to service providers once spy bill becomes law

[Since the the first draft of the legislation, we have known the TICS Bill - the companion legislation to the GCSB Bill - makes it mandatory for telecommunications network operators (e.g. Telecom, Vodafone, 2degrees) to make their networks interceptable. The Bill leaves it to the ICT Minister's discretion whether this provision is extended to cover service providers - defined as companies that provide a telecommunications service, but that do not operate a network. Examples of service providers include the likes of Microsoft with its Skype service, Google with Talk and Hangouts and Apple's FaceTime and iMessage. Almost any online service is on the table - Editor]

The government is planning to issue secret orders to service providers when the Telecommunications (Interception Capability and Security) Bill ("TICS Bill") becomes law to force them to create interception capability for surveillance agencies. This has been approved by cabinet and is therefore official government policy.

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What's not clear is if the mechanism of a Ministerial directive will also be used to gag the service provider? Or is the secrecy merely a guise to allow compliant service providers to pretend they haven't been forced to create a backdoor for the government?

Either way, the impact on New Zealand online service providers, and New Zealand as a country, could be truly devastating.

In response to a request under the Official Information Act in my personal capacity, I received nine documents and merged them into one. The combined document can be viewed or downloaded from Scribd.

I was expecting the documents to be heavily redacted and information narrowly limited to the scope of my request. That they are. What I wasn't expecting was something that, as far as I know, has never been publicly disclosed or discussed before.

Para 104 of the December 2012 "Technical Paper:  Telecommunications Interception Capability and Network Security" by MBIE (page 19 of the combined document); para 109 of the paper to the Cabinet Committee on Domestic and External Security Coordination (page 62); and para 37 of the Cabinet paper (page 74) all confirm the same thing:

A Ministerial directive will be used to secretly/confidentially impose an obligation to create interception capabilities by individually named service providers (referred to as "deem-in" but what I call a backdoor) "so as not to publicly announce a lack of capability in a particular service."

The Government is therefore going to be using secret orders to specific service providers directing the creation of interception capability, allowing real-time access by surveillance agencies

"Service providers" in the TICS Bill is very wide and includes every online service to end-users, including those that aren't normally considered a telecommunications service as such. The authorised surveillance agencies are the SIS, GCSB, NZ Police, and any  government department declared to be one for that purpose.

Coming across plans for secret Ministerial directives was completely unexpected.

I can see nothing in the TICS Bill that requires a service provider to keep a Ministerial directive secret.

If secrecy is compulsory, there needs to be some sort of gag order, otherwise the service provider could make the secret directive public.

Competitive disadvantage
The stated rationale of secrecy is to minimise competitive disadvantage to the directed service provider.

If the 'bad guys' know a particular service provider has been forced to provide the Government with a backdoor, they will simply use other providers of the same service. This defeats the very purpose of requiring the interception capability and puts the directed service provider at a commercial disadvantage. Actually, it is likely to ruin the service provider.

As the 'bad guys' move from service to service in response to the government's 'whack-a-mole' approach of progressively forcing more and more service providers to create backdoors, the whole exercise become self-defeating.

The government's use of secret Ministerial directives seems a way to counter this by not letting people know which service provider has been forced to create a backdoor.

However, the consequences of this approach are very damaging and dangerous- when you don't know who to trust, you trust no one. There will be a loss of confidence across all service providers in New Zealand. A lack of information is quickly filled by rumour and FUD (fear, uncertainty and doubt).

As an example of just how bad the consequences are, consider how there is now a loss of trust in all US-based online service providers from Snowden's revelations. While there may be debate about the exact nature of the backdoor, there is no doubt that 9 online companies - Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple- do provide the US Government with secret, lawful access. Gag orders makes things worse- two email providers facing actual or potential secret orders have shut down but are unable to provide any real information, stoking FUD.

As a consequence of the loss of trust, The Information Technology & Innovation Foundation (ITIF) has projected a $35 billion loss to US cloud companies. A Forrester analyst projects global losses at $180 billion. Meanwhile, European companies are likely to get an advantage over New Zealand and US companies, including a greater push to keep things within Europe.

Official government policy
Examples from around the world show just how corrosive secret spying capability orders and gag orders are to trustworthiness, both to the country and its online service providers. Secrecy also aids compliant online service providers, happy to go along with the Government without insisting on a warrant, protected by the Principle 11 exceptions in the Privacy Act. A real corporate-government surveillance partnership.

Secret orders, secret compliance, secret evidence in courts... we just need secret courts to complete New Zealand's descent into a totalitarian state.

People will quickly figure out that they have no way of knowing which particular service provider has or hasn't given the government a backdoor. The logical approach would be to assume that all service providers are compromised.

Which business is going to take the risk that their, say, Board papers or accounts, are secretly available in real-time to the NZ Police, SIS, GCSB, and the Five Eyes partners? In particular, overseas businesses will be spooked from doing business with any New Zealand based online service provider. They will know that warrants can be issued to safeguard New Zealand's economic well-being just as easily as they are for national security and law enforcement.

Will this strengthen the case for the likes of Google and Microsoft to pull out of New Zealand rather than risk getting a secret directive for a backdoor from the ICT Minister?

Will New Zealand cloud companies decide to move out to more democratic countries?

In the name of protecting online service providers from competitive disadvantage, the Government could well ruin the entire New Zealand online services industry. The economic impact on New Zealand online service providers and the country's international standing could be truly devastating.

Rather than seize the moment to be a global leader in enacting sensible, proportionate and effective laws, the Government is making laws 'just in case' they are required in the future, with no evidence that service providers are part of the problem. I hope others will join me in calling for the Government to not go down this path. Once trust is lost, getting it back is going to be difficult if not impossible.

Former State Services Commission strategy & innovation manager and InternetNZ chief executive Vikram Kumar is CEO of Mega. He wrote and researched this article in a personal capacity. He posts at Internet Ganesha.

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Comments and questions

Have you viewed NZOA yet...I can't remember if I have already posted it here...

At last very substantive criticism. I agree, including service providers under such a blanket definition with potentially unfettered real time access to unlimited government agencies is intolerable.

It cannot be allowed to pass.

The Washington Post has just reported that the National Security Agency broke privacy rules 2776 times in one year. If it happens there it will happen here

Not only that, the head of the NSA straight-out lied to congress, who were supposed to be providing oversight. Land of the free indeed.

Minor quibble, but James Clapper isn't the the head of the NSA, he's the Intelligence Director.

A person who is drowning will instinctively grab hold of any person nearby and clamp onto them to save themselves from drowning. It doesn't matter who it is, a rescuer, a parent, a sibling. The end is almost always the same - a double-drowning.

New Zealand is now in the unenviable position of having the United States clamped onto us in the desperate hope of saving itself from its own nightmares and folly.

The United States is a desperate, evil empire, that will use us until we are no longer of any use to anyone, and we are sent to the bottom. It doesn't have to be this way however. We are far enough away, and have enough experience defying the United States that we can say no if we wish.

Except we won't. Because our Prime Minister is a Wall Street Banker on a mission. And we are too slow and vacillating to save ourselves from this deadly embrace.

No wonder our "dear leader" has been looking increasingly embarrased of late.
Surely it is past time for him to come clean as to his true objective and tell us who is pulling his strings?

The plot thickens as more details come out!
Where is our Edward Snowden?-because we sure need him to keep us informed as to the plans of our government!

Has JK got a wish to lose the next election?
Because he's sure going about it the right way.
Cover ups and secret deals are not a good look.

Does there HAVE to be a next election? As we have no proper constitution is there actually a law that demands one or can they just be postponed indefinitely under some obscure regulation ? So if things got too difficult, could next year's election be stopped?

It beggars belief that current parliamentarians have so little sense of history (and our hard-won freedoms) that they are willing to pass this legislation so casually. Bugger the costs to the ICT industry - what about the kind of society our children and grandchildren must live in?

Our forefathers must be spinning in their graves.

If you google "Eric Holder visits New Zealand" and "Janet Napolitano, US Secretary of Homeland Security, visits NZ" you will see some curious timing to Key, John Key's timing of the GCSB Bill make-over . First you break the law ,then you change the law so you didn't then break the law !
Are we a country of Laws or men ?

Fishermen apparently.

This is really concerning. And if this legislation gets passed, expect over time it to me amended to increase its reach, via emergency sitting in Parliament. Once its in the flood gates are open to the State encroaching more and more into peoples lives.

When you think all Govt Depts' now share all information, and the Govt will be able to access your private communications; NZ is becoming a Police state.

Dean Pemberton, where are you?

Let the world know-- esp. the GCSB -- I have a life-sized,
reverentially-inspired mural of John Key on my garage door, with a halo-shaped Heart above his illustrious head. A scaled-down version is on my letterbox.
Every time, I answer the phone or go online, I vow to utter the incantation: "Hail John Key", three times. Maybe, even more (to be safe).

Vikram - sound like an opportune moment to launch the Mega TOR network for NZers!

Surely Mr donKEY is doing this under orders from his pals in the good ol'U S of A, there must be some juicy bonus in it for him(green cards for his family perhaps?). I'm sure he is worried about next election so he has to be thinking how he can fleece the country before he is out.

Tomorrow at 7pm opponents of the 1984 bill are meeting at the Auckland Town Hall.

Let right and left join hands in opposing this bill.

John Key said "Let them eat snapper", I say roll on the next election so we can get rid of this smiling assassin who has been trying to sell our freedom to the desperate and evil US government.
John Key must be sent back to Hawaii for good where he belongs.

JK never said that at all, he said 'I think they are more interested in snapper'; there have been 3000 e-mails to mP's relating to snapper quotas, and 154 relating to the GSCB.

and in news most Kiwis actually care about - The All Blacks won on the weekend and Fishing rights are under attack.

I think you all over estimate how the public view this.

The public do care, regardless of mainstream media claims on behalf of Key

That's like saying I'm from the Government, I'm here to help.

Ben Franklin was right.

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety".

Government agencies have repeatedly shown that they are neither competent nor trustworthy enough to be given these powers.

Thanks Vikram for investigative journalism going through source documents rather than a rehash of press releases. Microsoft NZ did signal this state of affairs a couple of weeks ago worried about huge costs to rebuild it's network in order to comply with government directives to enable snooping. The question needs to be asked "who isthis government really working for". No longer in the realm of the conspiracy theorist (a la Kim Dot Com and his comments around 5 eyes which is in fact true, no conspiracy there) mainstream media in the States and UK are all over similar types of legislation in their own countries. Do we really want our own little Patriot Act in NZ because that is the road we are heading down.

Rather than subscribing to the naïve mantra 'nothing to hide, nothing to fear'. I prefer to say nothing to hide so keep your nose out of my underwear drawer. I hope some overseas company can provide a service that will keep my data safe from scammers, crooks and thieves...and that includes our government.

Thanks Vikram for your investigative work.

The new wording around 'economic interests' in the GCSB BIll is another concern which seems to open up more than quarter of a million ordinary law-abiding New Zealanders to surveillance.

I had always assumed if I'm acting legally, there's nothing to worry about.

But the new 'economic interests' wording in the GCSB Bill seems to make many law-abiding New Zealanders a target for surveillance.

What are New Zealand's 'economic interests' when the current government is escalating oil exploration and coal mining?

Many of us know that much of our global reserves of coal and oil can not be safely extracted.

We risk our climate changing beyond adaptation in our lifetimes as 'greenie extremists' such as the World Bank, IEA and PriceWaterhouseCoopers warn us we're on track for 3-4'C double 'safe' levels of warming.

Speaking out is responsible action. So is divesting from fossil fuel investments.

Yet the GCSB Bill implies legal climate action is a target for surveillance. Almost quarter of a million New Zealanders signed up to 40% emissions reduction target in 2009 - are these people criminals to be spied on by coercing their internet service providers to alloy surveillance. What's happening to this country?

This is not a thread for further scare mongering about our planet. The science is so unsettled that it has to make it's models predict anything and everything to explain why there is no warming of any significance. Read Rodney Hide's excellent piece on prophecy in the NBR.

Respectfully, I realise 'climate change' are words barely uttered in NZ politics since the 2008 elections, but I don't think we should write off the consensus of 97% of international climate scientists. For similar reasons, I don't smoke and I wear a seat belt in a car.

This isn't doom & gloom, switching to a low emissions job-rich economy is relatively easy for NZ, and there's also significant health gains and taxpayer savings from individuals adopting lower emissions lifestyles. Call it investing in our future, protecting our economy...take a look at Generation Zero's website with their recent tour 'What's the Holdup?' Inspiring and encouraging.

I do appreciate the need for independent scientific information and I understand the UN will be releasing a new report in a couple of weeks as part of the AR5 climate updates, so this would be a useful independent scientific source for you to check out - no offence to the affable Rodney Hide :)

We desperately need real cross-party action on climate change - the longer we delay acting, the more likely we open ourselves up to heavy-handed regulation. I think we need responsible limits on emissions, including a realistic market price, so people can make the choices that suit them best.

Thanks too for your earlier posting re potential to extend powers under the GSCB Bill - points well made.

Ahhhh that's why Google, Amazon, and Microsoft went down. Installation of spying technology. That was when the back doors were opened up for surveillance. I assume. But this is just a guess. Seems logical though.