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Date: 2000-10-31

Nicky Hager ruehrt wieder um

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Eines der Interviews, die Nicky Hager bei seinem Aufenthalt
in Wien gegeben hat ist via [darüber
mehr in einer der nexten paar q/depeschen] im Volltext
online. Ebenfalls im Volltext attachiert ist Nickys Forward
des Aufmachers der Sunday-Star Times über
Polizei/ermächtigungsgesetze und standardisierte


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Date sent: Tue, 31 Oct 2000 10:29:52 +1300 To:
<>, From: Nicky
Hager <> Subject: Subject: RE: NZ


Here is the full text of the article I wrote for that Sunday
paper, including you Erich thank you, out of which they took
the front page article. There's nothing new in this for you two,
I'm sure, I'm just presenting the subject to New Zealand.


Sunday Star-Times article

The police, Security Intelligence Service and the Government
Communications Security Bureau are pushing for major new
surveillance powers including the ability to spy on emails.
Nicky Hager investigates.

The secretary of the anti-free trade group turns on her
computer and types in the security password. Her computer
holds all the group's membership lists and meeting minutes
so she makes sure no one else knows the password. Their
group has been unpopular with the government in the leadup
to a major free trade conference and she doesn't want
anyone snooping on their plans.

A little later she dials up the Internet to check and reply to
her e-mail. Without her knowledge, she is no longer alone.
As soon as she is connected to the Internet a computer in a
surveillance centre in another city - or even another country -
detects she is there and the intelligence technician begins
his work.

Using techniques originally dreamt up by school-age
hackers, the technician bypasses the computer's security
systems, takes control of the computer operating system
and begins searching folder by folder through the directory.
Soon he is copying confidential files onto his own computer.
No need for politically embarrassing banging on the front door
and producing a search warrant these days.

He doesn't bother copying any e-mail files. All the e-mails to
and from members of the group have been forwarded
automatically from the service provider for months. They joke
that they often read the letters before the people to whom
they are addressed.

Part way through downloading her computer files, and others
from networked computers, the target disconnects from the
Internet and gets on with her other work. No matter. As soon
as she is on-line again, they'll be back…

All of this will soon be possible. New surveillance laws,
devised under a National Government and now promoted by
Cabinet minister Paul Swain, include legalising spying on
Internet communications, allowing Police and intelligence
agencies to "hack" covertly into individuals' computers and
forcing people to hand over computer passwords and
encyption keys so that e-mail communications and computer
files can be read. The new legislation would also impose
"requirements" on Internet service providers and telephone
companies to co-operate with intelligence agencies and
police and install systems to assist spying on their

The proposed legislation has strong similarities to the British
Regulation of Investigatory Powers Act (R.I.P. Act), passed
amidst major controversy three months ago, which required
internet providers to be connected to a new MI5 e-mail
interception centre. However, rather than announcing and
debating the planned law changes openly as occurred in
Britain, information on the New Zealand plans has been kept
secret and it is planned to slip them through in stages as add-
ons to unrelated pieces of legislation. The first of these is
due to be tabled in Parliament about 10 days from now.

The similarity to the British legislation is not a coincidence.
Officials have told Ministers that the new powers are needed
in order to meet New Zealand law enforcement requirements.
In fact the legislation is a direct result of influence from
western countries, particularly the United States, which
wants a standardised global system for communications
interception to assist its own intelligence operations. The
New Zealand government and Police have refused to release
information on the links between the proposed new powers
and secret meetings and agreements between New Zealand
officials and western intelligence and police agencies.
Officials did not advise Ministers of the commitments they
had already made to overseas agencies to fall into line with
the standardised surveillance.

In the last week of July the first signs of the new plans
appeared when Associate Justice Minister Paul Swain
discussed additions to anti-hacking legislation and raised the
idea that it might include allowing Police to intercept e-mails.
He justified the plans saying that the target was electronic
criminals: "It's ridiculous to tell police to attack organised
crime with one hand behind their backs", he said. However,
the plans had been developed quite separately from the
electronic crime and anti-hacking laws.

I first suspected these changes might be coming in New
Zealand a year ago after receiving copies of European Union
reports uncovered by European researchers. These papers
showed that European governments had been secretly
agreeing to adopt standardised new spying laws pushed by
the US Federal Bureau of Investigation (FBI) onto its closest
NATO allies. A series of European Union countries and other
US allies, including Australia, have ignored unwilling publics
and passed these laws in recent years. It seemed likely that
New Zealand was receiving pressure to conform.

The New Zealand officials promoting the new laws have
refused to release information about many of the specific new
powers sought and their links to the FBI initiative. For months
this year, Police refused to answer any questions, even after
the Ombudsman agreed to investigate the case. Finally,
under pressure from the Ombudsman, Assistant Police
Commissioner Paul Fitzharris wrote a week ago claiming no
knowledge of collaboration with the FBI- European Union
plans and suggesting that, if I wished to discuss these
issues further, I could contact the officer in charge, Inspector
Peoples, when he returned from leave next year.

Details of the planned law changes have been kept under
wraps, but can be pieced together from various sources. The
first legislation expands the interception powers of the Police
and GCSB to cover all forms of electronic communications
(including e-mail, faxes and text messaging) and, for the SIS
as well, to cover hacking into computer systems to view and
copy people's files. (Insiders say that the police already have
technology to intercept faxes but not currently for e-mail.)

Like the British RIP Act, this is to be achieved by amending
the Crimes Act to make it illegal to intercept electronic
communications or hack into computers - and then
exempting all the intelligence and law enforcement agencies
(police, customs etc) from the new law. Police interception
warrants will then cover all kinds of communications (not just
telephones) and search warrants will permit covert access to
computers from a remote terminal. According to the Police
briefing papers to the incoming Minister last year, they are
also seeking powers to oblige people "to assist the police to
access computerised material when executing a search
warrant"; forcing people to hand over passwords and
encryption keys.

The SIS has already been given powers to deal with
encrypted communications. Last year's amendment to the
SIS Act legalised covert entry into buildings and placing of
"objects" there. More explicit spy legislation overseas refers
to bugs placed inside a computer keyboard to intercept
confidential messages before they are encrypted.

The legislation will also allow a whole new (but unspecified)
type of GCSB electronic spying to be conducted from the
super-secret agency's Freyberg Building headquarters in
Wellington, and will move the GCSB's existing powers into
the Crimes Act, thereby increasing their status. It will create
a new system of authorisation, said to be "similar" to current
SIS warrants, to control the new types of GCSB and SIS

If the new surveillance authorisations are like SIS warrants,
there will be nothing to stop them being issued to target
organisations and hence allow general surveillance.
Opponents of market economics and free trade, who have
been extensively targeted by western intelligence agencies
elsewhere, come to mind. The whole emphasis of the new
legislation will be that the use of the new powers will be kept

The other half of the plan is changes to the
Telecommunications Act, again mirroring the RIP Act. The
intelligence agencies and police want amendments that
require Internet service providers and telephone companies to
install equipment and software to make their systems
"interceptable". (Sources say that Telecom New Zealand has
already been paid to make its network "interception
capable".) A controversial side-issue is whether the
government or the telecommunications companies should
pay for the changes. In Australia's similar 1997 legislation, it
is the Internet and phone companies that pay.

Network and service providers must also provide
"communications data" on request, which in overseas
legislation has included IP addresses, logon IDs and
passwords, PIN numbers and credit card details. These will
probably be available without the requirement for an
interception warrant. The telecommunications companies will
face heavy prison sentences if they refuse to co-operate or
reveal to anyone that the interception is occurring. If they
follow overseas laws, they will also be required to hand over
encryption codes so that the messages can be read. There
may not be an equivalent of the new MI5 surveillance centre,
but the effect will be the same.

The decision-making process for these changes is a model of
bad government: the amendments are being prepared by
officials in secret, pushed through Cabinet quickly without
Ministers getting full information and only presented to the
public after the government has made its decisions. Similar
law changes in other countries have been introduced as
specific surveillance legislation. Despite being about four
years in the planning, this up-front approach was not adopted
in New Zealand.

The Crimes Act changes are being included in a
Supplementary Order Paper (SOP) on "electronic crime" that
will tack the new surveillance provisions onto anti-hacking
legislation already before the Law and Order select
committee. Although the select committee will invite public
submissions on the SOP, the public will only have a few
weeks to digest and debate the changes at the end of several
years of secret preparation by officials. Ministers hope to
pass the law before the end of this year. The
Telecommunications Act amendments were drafted under the
last government but did not get priority on the 1999 election
year legislative programme. The manager of the
Telecommunications and Postal Policy Group of the Ministry
of Economic Development, David King, says that they now
plan to attach the surveillance provisions to an unrelated bill
arising from Hugh Fletcher's inquiry into the
telecommunications industry. It is due to go to Cabinet, all
going well, in December.

This is not open and transparent law making. Although the
changes all come from the intelligence agencies and police,
they are being pursued as two separate initiatives (the first
sponsored by the Justice Department and the second by the
Ministry of Economic Development). Although Paul Swain,
wearing different Ministerial hats, is responsible for both
processes, he has never mentioned publicly that they are two
halves of the same plan. The first stage legalises wider
surveillance powers while the second provides the technical
means to use those powers. Together, they add up to a New
Zealand RIP Bill.

Paul Swain disputes this. He says the "driving force for
making changes" is the wish to protect privacy. "At the
moment a person's privacy is at risk because there is no
legislation that says that wandering into someone's internal
communications system is illegal." He said that exemptions
for the police and syp agencies came later. However, privacy
was "the very foundation, and fundamental reason why I am
promoting that people should have the right to able to
communicate, to e-mail one to another, without the fear that
someone else is having a go at it."

The Crimes Act changes were first seen by Ministers in the
same week as the RIP Bill got royal assent around the end of
July. Two weeks later, on August 14, Cabinet approved the
officials' proposals without any changes. The schedule
involved Cabinet approving the first legislation before seeing
the subsequent telecommunications legislation and with no
public debate on the civil liberties issues. It is yet to be seen
how long will be allowed for the select committee
investigation into the bill.

Victoria University Professor of Public Policy, Jonathon
Boston, says that the proposed legislation raises issues of
fundamental importance. He hopes sufficient time will be
allowed for careful and considered public debate of the
proposed laws.

Two main arguments have been proposed by officials and
Paul Swain to justify the changes - exactly the same
arguments that were used in Britain and elsewhere. The first
is that the two laws would not "change or extend in any way
the existing powers and accountabilities"; that they merely
update current powers relating to telephone monitoring to
cover new technologies. Ministers were told that the changes
were merely maintaining the status quo. This is not true.

The availability of new technologies means that more and
more of people's personal lives, work, political activities,
entertainment and even shopping occur via electronic
communications. Interception of these communications
provides unprecedented power for intrusive monitoring, and
faster computers and digital communications continuously
increase monitoring capabilities. Much more spying is
possible with less manpower. There is no comparison
between this and telephone bugging of past decades.

In addition, totally new powers are proposed, including
covertly snooping inside people's computers. The Privacy
Commissioner strongly opposed these powers in a private
submission to the government this year. He argued that
police search warrant legislation requires the person being
searched to be aware of the search and see the warrant. He
argued that this new, surreptitious surveillance power raised
worrying privacy and accountability issues. Paul Swain
recommended to Cabinet to put aside these concerns,
leaving them for a future review of police search powers, and
Cabinet accepted this.

Likewise there may be new provisions to force people to hand
over passwords and encryption keys. In Europe when this
occurred, civil liberties lawyers pointed out that it reverses
the fundamental right to be presumed innocent until proven
guilty. It would be similar to removing someone's right to
remain silent.

Finally, Internet experts argue that e-mail interception will be
quite different from old-fashioned telephone interception,
where a single line is monitored. Modern networks mix data
packets of various origins in a broad stream and so,
according to Erich Moechel, an Austrian researcher into the
FBI- European Union surveillance plans, "you simply have to
analyse at least all their headers [including sender and
address] to know which ones to intercept."

While there is equipment available that could target a single
e-mail user, other countries introducing similar new laws have
required an "interception interface" to be built into every
Internet and phone company's system. For e-mail, this
involves specialised software being installed by Internet
service providers that can be remotely controlled by
intelligence and police agencies. This provides capabilities
that Moechel describes as "spooks' heaven". This is what the
New Zealand legislation will permit.

This would not yet mean electronic "trawling" of all e-mail
traffic, as the GCSB does. But, as the British Statewatch
organisation wrote (about the RIP Bill), "Over the past ten
years secret and clandestine methods of gathering
'intelligence' previously employed in the days of the Cold War
by internal security agencies have been permeating policing

The other argument used by Paul Swain and officials to
justify the new laws is that organised criminals are using the
Internet to avoid Police surveillance and that the changes are
necessary "to prevent law enforcement capability being
seriously eroded". Officials provided no evidence to
substantiate this claim.

Detective Sergeant Cam Stokes, who works with gangs in
Auckland, told NZPA earlier this year that he knew of no
instances where a crime had been plotted using email and
said criminals would be cautious about what they said on-
line. While e-mail tapping might not prove a significant
advantage to Police, he said, "it would certainly be no
disadvantage to us to know who criminals were
corresponding with."

This is heart of the issue: whether there is a clear and
present danger to justify increased police and spy powers.
After all, police solved crime statistics are improving, not
getting worse; and the Cold War is long gone. But it is easy
to speak of crime and national secrutiy. How do we judge?
Paul Swain says the intelligence agencies need updated
powers to fight "international criminal activities and
international terrorist activities". And he especially backs the
police having these powers so that they can "monitor
criminals, particularly gangs".

He says he agrees there must be a balance between
surveillance powers and civil liberties but he "very strongly"
supports the police having new powers in "the war against
criminal behaviour, particularly in relation to drugs".

The New Zealand Council for Civil Liberties does not agree.
Chair Tony Ellis says the proposed surveillance laws are a
major civil liberties concern. The council wrote to Mr Swain
three months ago asking about possible e-mail surveillance
laws. On 21 September he replied that he was "confident that
the rights of New Zealanders are not being diminished but
rather enhanced" by the proposed laws. Ellis says the
council is waiting to see details of the legislation and will be
taking it up. "It is a major and disturbing intrusion into civil
liberties", he said.


The new surveillance laws being proposed are not a New
Zealand initiative. They can be traced back directly to FBI

The FBI began campaigning for new surveillance laws in the
US in 1991. Its 1992 report, "Law enforcement
REQUIREMENTS for surveillance of electronic
communications", expressed concern that new
communications systems and a proliferation of networks
made interception much harder than previously. An updated
version of these "Requirements", which were to be imposed
on telecommunications companies to make their networks
easier to intercept, was issued in 1994 and became the
basis of new surveillance legislation signed into law by Bill
Clinton in October that year. US civil liberties groups have
fought this legislation ever since. The FBI "Requirements" are
virtually word for word the same as the 24-point so-called
"International User Requirements" that New Zealand officals
later secretly agreed to implement in New Zealand. They are
the basis of the current moves.

At the same time as seeking US legislation, the FBI began
pushing other countries to adopt the requirements. This is
because the US intelligence agencies wanted allied countries
to have standardised spy systems that they could use to
ensure interception of increasingly mobile telephone and e-
mail. For instance, US intelligence agencies might want to
monitor someone from one country using a mobile phone in
another country, that is routed through the phone system of a
third country. Thus, as a 1995 European Union police report
noted, the need "to create new regulations for international co-
operation so that the necessary surveillance will be able to

In 1993, the FBI arranged a meeting to promote the
Requirements at its headquarters in Quantico, south of
Washington DC. Confidential European Union (EU) papers
record that the meeting included EU representatives plus
Canada, Norway, Hong Kong, Australia and New Zealand. In
January 1995, the 15 EU governments secretly agreed to the
requirements without any reference to their national
parliaments. Since then, there has been controversy as the
legislation was pushed through in each country.

The next move was a "Memorandum of Understanding" drawn
up to extend the US-EU system to the non-EU countries.
The key group for promoting this co-operation in internal
surveillance has the innocuous title, the International Law
Enforcement Telecommunications Seminar (ILETS). Founded
by the FBI in 1993, its membership is the same 20 countries
that met in Quantico that year.

The core of ILETS is the five "UKUSA" intelligence allies: the
US, Britain, Canada, Australia and New Zealand. There are
thus two global surveillance systems involving those five
countries: the US-led Echelon system for international spying
(including New Zealand's GCSB), and the ILETS co-operation
for co-ordinated internal spying on the people within each
member country. New Zealand has been represented at
ILETS meetings by GCSB and police staff, including
meetings in Canberra in November 1995 and Ottawa in May

Other European Union documents reveal that by October
1996 Australia and Canada had formally supported the
International User Requirements and New Zealand and Hong
Kong were "considering the means by which they could
support the 'Requirements'". New Zealand officials began
work on legislation to enforce the International User
Requirements in this country the following year.

Both the police and Paul Swain have, in letters to me, denied
that the new legislation has links to the FBI plans. However
Assistant Commissioner Paul Fitzharris did admit in writing
last week that "discussions have occurred" and the
"proposed legislative changes would bring New Zealand into
conformity with most, if not all, of the International User

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published on: 2000-10-31
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