Saturday, 8 March 2008

Privacy and Text Communications

We appear to be facing another challenge to privacy in New Zealand which would take us further towards the surveillance society. The police are seeking the storage of all text communications to facilitate their enquiries. Fortunately, this requires a change in law and will get a bit of discussion. It is to be hoped that the Office of the Privacy Commissioner will be active in the debate.

The relevant rule applying to the retention of text data in NZ is found in the TELECOMMUNICATIONS INFORMATION PRIVACY RULES
Rule 1
Purpose of Collection of Telecommunications Information
Telecommunications information must not be collected by a telecommunications agency
(a) the information is collected for a lawful purpose connected with a function or
activity of the agency; and
(b) the collection of the information is necessary for that purpose.
Note: Except where it is itself a party to a communication, a telecommunications agency will rarely have a lawful purpose to collect the content of any telecommunication. Indeed, it is unlawful to intercept the content of a private communication in most cases (Crimes Act 1961, Part 9A). There are some limited exceptional circumstances relevant to telecommunications agencies (e.g. where acting pursuant to an interception warrant to assist the Police or SIS). Employees of network operators can, in the course of their duties, intercept telecommunications for maintenance purposes but it is an offence for an employee of a network operator to use or disclose information so obtained for unauthorised purposes – Telecommunications Act 2001, ss.114 and 115).
It is apparent that there is no technical requirement to store all texts to provide services to a party in the communication. Vodafone NZ does not do it and Telecom NZ is going to stop the practice.
Although it may be attractive to the enforcement agencies to be able to dip into a historical pool of all telecommunications in pursuit of information about possible criminals and crimes, this would be a fundamental turn-around in perception of the privacy of communications. It is ridiculous to suggest that telecommunications providers should be breaching this basic requirement of the Privacy Commissioner to be "good corporate citizens" as suggested by Police national crime manager Win van der Velde quoted in Dominion Post 8March .

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