Official access to encrypted communications in New Zealand: Not more powers but more principle?

Abstract

Although New Zealand is a member of the ‘Five Eyes’ intelligence community, it has taken a relatively cautious and in recent years often deliberative approach to counterterrorism powers, including in relation to access to encrypted communications. That approach can be seen to reflect New Zealand’s security, legal and political context and in particular its tendencies to independence, pragmatism and support for human rights. It is also apparent in the responses to date to the deaths of 51 people in the March 2019 attack on two mosques in Christchurch, New Zealand and, in particular, in the Christchurch Call, an initiative against terrorist and violent extremist content online. The Call is a non-binding standard adopted in cooperation with numerous other governments and large online service providers and includes commitments to transparency and human rights. As Five Eyes countries’ individual and collective positions concerning access to encrypted communications become increasingly forceful, the question is whether New Zealand will follow those positions or pursue more principled, collaborative and likely more workable measures, in line with its wider approach and the example of the Call.

Law’s response to New Zealand’s ‘darkest of days’

“…tended towards a comparatively narrow and incremental approach in adopting and using counterterrorism related legislation'. 118 In addition to New Zealand's limited experience with terrorism, Keith proposes the following contextual factors by way of explanation: an accepted practice of developing security-related legislation in a bipartisan manner; the tendency of New Zealand's mixed-member proportional electoral system to create minority or coalition governments that require the support of other parties; past controversies regarding the use of counterterrorism and security measures, including most notably the 2007 Operation Eight raids discussed earlier; New Zealand's commitment to its domestic and international human rights obligations; and strengthened oversight that has led to greater transparency and scrutiny over matters of national security. 119 At this juncture, we come to the question of whether New Zealand's response can fairly be described as a knee-jerk reaction to the events of 15/3.…”

Regulatory arbitrage and transnational surveillance: Australia’s extraterritorial assistance to access encrypted communications

“…However, NGO NZ Council for Civil Liberties considered the impact of this provision is theoretical as most services are offshore, and this provision does not apply extraterritorially (Beagle, 2017). Yet, section 38 of TICSA allows the responsible minister to make "service providers" (discussed below) subject to provisions such as this on the same basis as "network operators", which may involve section 10 having an extraterritorial reach (Keith, 2020).…”

“…New Zealand has human rights protections enshrined in its Bill of Rights Act 1990, and section 21 contains the right to be secure against unreasonable searches and seizures. However, it "does not have higher law status and so can be overridden by contrary legislation…but there is at least some effort to avoid inconsistencies" (Keith, 2020). There is also the privilege against selfincrimination, "the strongest safeguard available in relation to encryption as it works to prevent a person from being punished for refusing to provide information that could lead to criminal liability" (Dizon et al, 2019, p. 7).…”

“…There is also the privilege against selfincrimination, "the strongest safeguard available in relation to encryption as it works to prevent a person from being punished for refusing to provide information that could lead to criminal liability" (Dizon et al, 2019, p. 7). There is no freestanding right to privacy in the New Zealand Bill of Rights, and so aspects of privacy must be found via other recognised rights (Butler, 2013), or may be protected via data protection legislation and New Zealand courts' "relatively strong approach to unincorporated treaties, including human rights obligations" (Keith, 2020).…”

“…Despite being part of the FVEY communiques on encryption mentioned below, Keith (2020) views New Zealand's domestic approach as more "cautious or ambivalent", with "no proposal to follow legislation enacted by other Five Eyes countries".…”