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II. Surveillance policy

Communications surveillance

The New Zealand Crimes Act and Misuse of Drugs Act govern the use of police interception powers.1 Interception warrants authorize not just the interception of communications but also the placing of listening devices. A judge authorizes warrants where there are reasonable grounds to believe that certain offenses have been committed or are being contemplated. Emergency permits may be granted for the bugging of premises and, following the 1997 repeal of a prohibition, for telephonic interceptions. Those who disclose the contents of illegally intercepted private communications face two years in prison. However, those who disclose the contents of lawfully intercepted private communications are merely liable for a NZD 500 (~USD 290) fine.

In 2005-2006 the New Zealand police sought, and were granted, 60 interception warrants under the Misuse of Drugs Act. Four renewed interception warrants were sought and granted under the Act.2 Under the Crimes Act, 18 interception warrants were granted and one renewal was sought. By contrast, in 2004-2005 the police sought and obtained 27 (new and renewed) interception warrants under the Misuse of Drugs Act and 15 (new and renewed) interception warrants under the Crimes Act. One emergency permit was granted under the Crimes Act. In 2005-2006, a total of 235 warrants (new and renewed) were obtained under the Telecommunications Amendment Act 1997; 210 warrants were obtained in 2004-2005 and 93 warrants were obtained in 2003-2004 for obtaining call data analyzers (pen registers and trap-and-trace devices that obtain call information but not the contents of communications).

The New Zealand Security Intelligence Service (NZSIS), established under the New Zealand Security Intelligence Service Act of 1969,3 is also permitted to carry out electronic interceptions. The NZSIS has a staff of 150 full-time equivalents (up from 145 and 132 respectively from the previous years) and an annual budget of NZD 23 million (~USD 16,777,000). The majority of its work is devoted to threats to national security.4 The Act was amended in 1999 to allow for the NZSIS to enter premises to install wiretaps following a Court of Appeal case that prohibited the entering of premises without a warrant. The amendment also created a "foreign interception warrant."5 Another amendment created a Commissioner of Security Warrants to jointly issue warrants with the Prime Minister.6 The Minister in Charge of the NZSIS is required to submit an annual report to the House of Representatives. During the year ending June 2006, the Minister reported that 22 domestic interception warrants were in force. Of these, 13 were new interception warrants and nine were carried over from the previous year. The average length of time that these warrants were in force was 140 days.7 According to the Minister's report, "the methods for interception and seizure used were listening devices and the copying of documents." The report also stated that foreign interception warrants were in force during the year but does not give any statistics for these warrants. Issues investigated during the 2005-2006 fiscal year included the following: activities in New Zealand of a foreign national assessed to be a close associate of Islamic extremists in a foreign country; activities of individuals within New Zealand assessed as being Islamic extremists; links between individuals in New Zealand and international extremist organizations; individuals in New Zealand seeking to raise funds for terrorist organizations; covert activity in New Zealand on the part of foreign intelligence services; and links to and activities in support of weapons of mass destruction programs abroad.

One agency not governed by the restrictions imposed on law enforcement and the NZSIS is the Government Communications Security Bureau (GCSB), the Signals Intelligence (SIGINT) agency for New Zealand. The GSCB was established by Executive Authority in 1977 and focuses on foreign intelligence. Operating as a virtual branch of the US National Security Agency, this agency maintains two intercept stations at Waihopai and Tangimoana. The Waihopai station routinely intercepts trans-Pacific and intra-Pacific communications and passes the collected intelligence to NSA headquarters. David Lange, a former Prime Minister of New Zealand, said that he and other ministers were told very little about the operations of GCSB while they were in power. Of particular interest to GCSB and NSA are the communications of the governments of neighboring Pacific island states.8 GCSB was specifically exempted from the provisions of the Crimes Act in 1997.9

The Government Communications Security Bureau Act was enacted in 2003. This enactment places the GCSB on a statutory footing. One unit within the GCSB, Centre for Critical Infrastructure Protection, is dedicated to the protection of the nation's critical infrastructure from cyber threats by Internet hackers or computer viruses.10

The Government has created major new surveillance powers for these state agencies. The Crimes Amendment Act, overwhelmingly passed by Parliament in July 2003, gives intelligence agencies additional powers to intercept communications, with High Court approval, while also criminalizing similar unauthorized activities as well as the distribution or possession of computer hacking programs.11 The controversial anti-hacking legislation gives police explicit authority to intercept electronic communications. The new law makes it illegal to intercept, access, use or damage data stored on computers without proper authorization. It also makes the sale, distribution or possession of hacking programs illegal.12 The Act prohibits the unauthorized interception of electronic communications and makes hacking and denial of service attacks illegal, but would grant exemptions to the police, the NZSIS and the GCSB, allowing them to secretly hack into individuals' computers and intercept e-mail, text messages, and faxes. Police are required to specify a person, place, and specific electronic address, phone number, or similar facility when applying for an interception warrant.

Even more controversial was the Telecommunications (Interception Capabilities) Act 2004, which was enacted on March 31, 2004. Similar to the United States Communications Assistance for Law Enforcement Act (CALEA) of 1994, the legislation requires all Internet Service Providers (ISPs) and telephone companies to upgrade their systems so that they would be able to assist the police and intelligence agencies, including the Government Communications Security Bureau (GCSB) and Security Intelligence Service (SIS), intercept communications. The Act obliges telecommunications companies and ISPs to intercept phone calls and e-mails at the behest of the police and security services.13 The legislation also requires a telecommunications operator to decrypt the communications of a customer if that operator had provided the encryption facility.14 It does not require individuals to hand over encryption keys.

Legislative and policy responses to terrorism

Since the terrorist attacks on September 11, 2001, the New Zealand government has been working to strengthen counter-terrorism laws.15 Before September 11, 2001, New Zealand was a party to only eight of the 12 conventions that the international community had negotiated over the last 30 years. However, according to Foreign Minister Phil Goff, as of December 2003, New Zealand is a party to all 12 United Nations terrorism conventions.16

The Terrorism Suppression Act 2002 was enacted on October 17, 2002 to put in place certain measures to combat terrorism, as well as implement New Zealand’s obligations under the Bombings Convention, the Financing Convention, the Anti-Terrorism Resolution, and (as added by the Terrorism Suppression Amendment Act 2003) the Nuclear Material Convention and the Plastic Explosives Convention. The act creates the offense of "terrorist bombing," and contains measures that aim at combating the financing or other support of terrorist acts. The act also provides for the designation of terrorist entities.

In June 2005, the Terrorism Suppression Amendment Act (No. 2) was enacted to update the original 2002 Act in two important respects: to ensure that the designation of terrorist entities under the original legislation does not expire (which would have placed New Zealand in violation of UN Security Council resolutions), and to bring New Zealand law into more complete compliance with Security Council and OECD-based Financial Action Task Force requirements to criminalize the act of providing financial support to terrorist organizations. The legislation also tightens the requirements relating to international and domestic wire transfer of funds and the cross-border transfer of cash by couriers.17