A chill went down the spines of civil liberties campaigners – and, I suspect, a good number of the public – when planned amendments to the law on computer hacking were revealed late last month.
These will, if passed, include explicit powers for the police and some other government agencies to intercept emails, faxes and cellphone text messages alongside existing powers to tap voice phone calls, in the cause of crime detection.
There are sensible protective measures against over-zealous use of the new opportunity; in the presently contemplated form of the legislation, government agencies would have to get a warrant from a High Court judge to intercept. It is, though, impossible to predict how this protection may be eroded as a bill makes its way through the parliamentary process.
Commerce and IT Minister Paul Swain trots out the venerable line “law-abiding citizens have nothing to fear”. Except, perhaps, for groundless physical search of their homes on suspicion generated by mail-tapping.
In the first year after the Department of Internal Affairs began monitoring internet chat-groups for porn trading, it issued about a hundred warrants for such physical searches. Only about 20% of them resulted in any proceedings in court. The rest earmarked presumably innocent people – including, the DIA admitted, people who just happened to grab the same dynamically assigned IP number five minutes before or after the alleged porn-peddler. No matter how much care is taken over the issue of a warrant, innocent people can still be unfairly targeted.
What will the agencies do with information they gain which is of no use in criminal proceedings? It will discomfit me to know that someone in a government agency may be in possession of emails of mine relating, for example, to confidential commercial transactions, or personal conversation.
Any criminal with an ounce of sense would surely encrypt his/her emails, or use an anonymous mail server. Concerning text messaging, I thought criminals already did any cellphone dealings on a cheap prepaid phone, discarded immediately afterwards.
Where does that leave the interceptors? Zeroing in on the easy targets guilty of a minor, or maybe unconscious, offence. The big fish, as ever, will escape.
The voice-call interception law is already ludicrously broad, allowing agencies to apply for a warrant on the strength of “reasonable suspicion” that the person concerned has been involved in theft of anything worth more than $300. Email interception is unlikely to have any tighter strictures.
Coming hard on the heels of a request by the Inland Revenue Department for access to confidential discussions between a lawyer and his/her client, this move makes it seem that the privacy of the non-offending citizen is being further and further eroded.
A person indulging in drug-trading or issuing death threats through digital media will presumably be aware that he/she is breaking the law. But in the pornography dimension – which doubtless will be caught up in these new powers – the law is lamentably unclear.
Material of a certain nature may be allowed into the country one day, and what appears to be exactly similar material banned the next. Some specific publications originally allowed through and legally bought by innocent citizens have subsequently been banned.
If experienced New Zealand publishers and importers can misinterpret what the law allows, how much easier is it for an ordinary member of the public, confronted with the undiscriminated resources of the internet?
The inspection right will apply to email received as well as that transmitted. Somehow (possibly as a result of my liberal comments about censorship in internet newsgroups) a couple of people overseas have the idea that I am an "adult webmaster". They send me offers of material to purchase for my site - some with free samples; at least two I have received were unambiguously illegal.
This mail was completely unsolicited; I destroyed the images, and have tried to stop subsequent emails without success. But I’d hate to have to prove that in court.
These measures are being pushed through speedily; the first of them could be tabled in parliament in a few days.
At the very least, before such measures are passed into law, more thought and more public information is needed on exactly how they will be practically implemented.
Bell is a Computerworld journalist based in Wellington. Send email to Stephen Bell.