December 12 2003
A Parliamentary select committee has returned the Telecommunications (Interception Capability) Bill with a number of recommended changes, including limitations on the requirements for telecommunications companies to (i) decrypt communications on their networks, and (ii) have in-built interception capability in every network element.
The bill, which was introduced last year (see Bill requires telcos to snoop on emails and telephone calls), is designed to assist surveillance agencies carrying out interception warrants by obliging telecommunications operators to be technically capable of intercepting communications transmitted on their networks. In addition, the bill would place network operators and service providers (ie, all providers of telecommunications services to end users, including internet service providers, and even internet cafes and hotel owners) under a duty to assist surveillance agencies executing interception warrants.
An earlier version of the bill would have required network operators to have in-built interception capability in every network element in order to intercept non-voice telecommunications. However, the select committee has made it clear that it considers this very expensive method unnecessary. Instead it suggests that it would be sufficient if network operators ensure there were external (or mobile) probes at selected locations throughout a network.
In addition, the select committee has suggested that operators would not be required to decrypt communications where the encryption was provided by means of a product that is supplied by (i) a person other than the network operator and is available for sale to the public, or (ii) the network operator as an agent for that product. On the other hand, where the network operator has its own encryption facility or contracts a manufacturer to provide an encryption facility, the select committee considers that the operator should be required to provide decryption.
Network operators will have 18 months from when the bill is passed to upgrade their networks accordingly. The government will pay the "fair and reasonable" costs of upgrading fixed and mobile voice networks that were operational as of November 12 2002 (the date on which the bill was introduced to the House). However, network operators will have to meet their own costs in the case of (i) internet and email services, and (ii) fixed and mobile voice networks commencing after November 12 2002.
Once the bill is enacted, surveillance agencies will have to reimburse service providers and network operators for the actual and reasonable costs incurred by them in assisting with the execution of interception warrants.
Patrick McGrath, Auckland
First published in World eBusiness Law Report, December 2003