About 50 IT professionals were alarmed to hear District Court Judge David Harvey say the government is about to do away with their right to remain silent should they be arrested for any crime.
Harvey was presenting a New Zealand Information Security Forum seminar in Auckland last week on hacking and touched briefly on the upcoming Counter Terrorism Bill.
The bill, due back in Parliament shortly for its second reading, removes the right of silence of computer users accused of a crime, the judge pointed out. More importantly, the bill will be inserted into the Summary Proceedings Act, meaning it will be available to police and prosecutors for any crime, not just terrorist-related activities.
Harvey would not be drawn on his opinion of the proposed legislation but explained how the bill could be applied in real world situations.
“If you’re the owner of a computer, or you lease it or are generally responsible for it, and a constable shows you a warrant, you will have to give him or her access to the system or face up to three months in jail and a fine not exceeding $2000.”
Public submissions on the bill have already closed; however, a Law Society submission on the matter pointed out the issue to the select committee. One of the society’s recommendations was that “a person required to help access a computer be protected from self-incrimination”.
A caveat to the clause was introduced, however, according to InternetNZ member and lawyer Rick Shera — effectively a “clawback to the clawback”.
“As I remember it the first clawback says you are required to give up the passwords or encryption keys or what have you unless that would tend to incriminate you. But then they introduced a second clawback that says this doesn’t apply unless the fact that it will incriminate you is evident from the name of the file or the computer or the password.”
In other words, unless your file name is “PlotToBlowUpParliament.doc” or something similar, the caveat doesn’t apply.
“Unless the password says something like ‘I’m about to blow up this building’, as we understand it, you would still be required to hand over your passwords.” Shera describes this as a “Clayton’s exception”.
Shera says opposition to the bill was less vocal than it might have been simply because it was listed under the Counter Terrorism banner, despite applying to all crimes.
“We were looking at Crimes Amendment Bill and the Telecommunications Interception Bill and saying ‘thankfully they’re not as bad as the UK’s legislation’ and here it is, slipped in under another name.”