Telecommunications providers are concerned interception-enabling legislation passing through parliament will be expensive and that many small-fry ISPs may not realise their responsibilities.
Providers argue that the way in which requirements of the Telecommunications (Interception) Bill facilitate interception by law enforcement agencies have been imposed will make them unduly costly. Some suggest the provisions may even constitute an anti-competitive barrier to new providers entering the market.
Submissions to the select committee considering the bill point out that some of the definitions of types of telecommunications provider and service are inconsistent with those in the Telecommunications Act. In particular it is still unclear whether the bill is intended to apply to ISPs, but major submitters have assumed it does.
The proposed law will require “network operators” to ensure communications on their networks can be intercepted for law enforcement and national security purposes. A network operator as defined in the bill means anyone who “owns, controls or operates a public telecommunications network”. The phrase “public telecommunications network” includes “public data network”, which in turn includes “the internet [and] email”.
There have been no submissions on the bill from those who consider themselves solely internet service providers.
Auckland’s Zip Internet concentrates on its role as a toll bypass operator. In its submission it argues that such operators should be exempted from the bill’s requirements, since all calls they pass through are originated and/or terminated in another provider’s network. That provider will have its own interception capability.
The Telecommunications Carriers’ Forum, representing Telecom, TelstraClear, Vodafone, CallPlus, Ihug, BCL and Citylink, suggests on the other hand that such providers may be landed with an unfair share of the expense, because “many online service providers [will not realise] that they are within the scope of the bill … therefore parties who are aware of and compliant with the bill will be disadvantaged within the market.
“Based on the current bill, the compliance costs for the industry are likely to be far in excess of the $12 million over five years estimated by the government,” the TCF says.
The forum interprets the bill as suggesting a separate interception capability be provided for each service run by the operator. It suggests one central capability within each provider should be sufficient, and that a central capability organised by a government agency on behalf of all providers would be a more efficient solution.
The forum also has reservations about government agents running any necessary interception, suggesting that their presence may affect the operator’s business continuity. The operators should be responsible for conducting interception and providing the data in raw form, for formatting by the government to its needs, the forum suggests.
BCL and Telecom have made independent submissions. BCL suggests that as a “wholesale network operator” it does not come within the provisions of the bill. There is no technical way of providing interception in compliance with a warrant while offering users not involved in the warrant a 100% guarantee of privacy, it says.