Global Internet Surveillance / Brought to you by those fine, friendly, baby
killing, folks now known as the: International FBI ;-((

joe 6pk Amer I CAN / make a difference
Ezekiel 33:6

International co-operation in internet surveillance

Nicky Hager 22.11.2000
The police, Security Intelligence Service and the Government Communications
Security Bureau of New Zealand are pushing for major new surveillance powers
including the ability to spy on emails

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 customers.

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 spying.

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 secret.

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 practice."

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.


Background


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

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 operate."

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. ( SPECIAL INVESTIGATION: ILETS AND THE ENFOPOL 98
AFFAIR)

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 1998.

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 Requirements".
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Draft Report: Independent Technical Review of the Carnivore System
http://www.usdoj.gov/jmd/publications/carniv_entry.htm

Joe Burton