Submission on the Telecommunications and Other Matters Amendment Bill

1. Introduction

PILLAR (Protecting Individual Life Liberty and Rights) is a New Zealand civil liberties advocacy organisation with a mission to protect and promote New Zealand’s heritage as a free, liberal and democratic society. A focus on freedom of speech, conscience, religion, thought and inquiry, right to privacy, right of assembly and association, ground our vision for a free and flourishing New Zealand.

PILLAR welcomes the opportunity to submit on the Telecommunications and Other Matters Amendment (Omnibus) Bill (“the Bill”). We support the Government’s objective to modernise telecommunications regulation and clarify obligations across domestic and overseas providers.

However, we oppose specific provisions that risk expanding the practical reach of interception obligations, weakening privacy protections, and creating chilling effects on lawful expression andassociation.

These risks arise principally from the Bill’s extra-territorial extension of the Telecommunications (Interception Capability and Security) Act 2013 (TICSA), new Radiocommunications Act enforcement powers, and broadened information-sharing mechanisms.

2. Key Provisions of Concern

2.1 Extra-territorial expansion of TICSA

Clause 21 a introduces new s 4A to Telecommunications (Interception Capability and Security) Act 2013 (TICSA hereafter), applying TICSA to persons “in or outside New Zealand” who provide services to NZ persons. This extends interception-capability obligations to:

• overseas messaging platforms

• encrypted services

• cloud storage providers

• routing and infrastructure providers

TICSA requires operators to maintain full interception capability (ss 9–10) and deliver traffic data (s3AB) even where technically complex. This raises feasibility as well as significant privacy and rights concerns when applied to overseas entities who service much of New Zealander’s online communications.

2.2 New enforcement pathway via Radiocommunications Act

Clause 5 inserts new Part 7A (ss 65A–65I), enabling the Secretary to revoke, suspend, or restrict radio/spectrum licences where a provider has breached TICSA (including after a notice under TICSA s90).

This introduces a powerful indirect enforcement lever that could pressure providers - including intermediaries and upstream operators - to restrict services or degrade functionality to ensure compliance. This could leave Kiwi’s with lower quality communications services and be significantly detrimental to their privacy and right to communicate freely.

2.3 Broad information-sharing with limited safeguards

The new s 65I authorises surveillance agencies to send MBIE “any information or document” relevant to TICSA enforcement. Unlike TICSA’s privacy principles (ss 6(a), 26), this new pathway lacks explicit minimisation, oversight, or reporting requirements.

In other words, the amendment appears to broaden information-sharing powers for TICSA enforcement, but does so without clearly importing the privacy, minimisation, and accountability safeguards that normally constrain surveillance-derived data.

3. Human Rights and Civil Liberties Implications

3.1 Freedom of expression (NZBORA s 14) — including chilling effects

While the Bill does not grant new interception powers, the perception of increased observability can deter lawful speech.

The extra-territorial application (new s 4A) may lead New Zealanders to believe a greater number of services - including encrypted foreign platforms - are now “intercept-able,” even if technically untrue.

International jurisprudence (e.g., Roman Zakharov v Russia (ECtHR 2015)) recognises that perceived surveillance alone can suppress speech. Empirical research likewise shows significant behavioural change when individuals believe their communications may be monitored.

Chilling effects are especially concerning for:

• Journalists

• Political dissidents

• Whistleblowers

• Minority communities

• Survivors of abuse

• Organisers of lawful protest

The Bill current format risks undermining the conditions necessary for meaningful free expression in a liberal democracy.

3.2 Freedom of association (NZBORA s 17)

TICSA’s traffic-data obligations (s 3AB) allow authorities to access metadata revealing networks, affiliations, and patterns of association. Expanding TICSA to overseas platforms increases the set of services through which associational information may become accessible, further amplifying chilling effects.

3.3 Necessity and proportionality

The Hansen/Moonen proportionality test requires that rights-limiting measures be rational, necessary, and minimally impairing.

Concerns include:

• s 65F licence revocation is a severe measure and may be disproportionate, particularly where providers face technical or legal impossibility.

• s 65G permits decisions based solely on summary information from surveillance agencies, without independent verification.

• New s 4A lacks feasibility exceptions, foreign-law conflict exemptions, or explicit encryption protections.

3.4 Privacy rights

TICSA includes privacy protections, such as the requirement to protect non-target communications (s 6(a)) and minimise impacts on third parties (s 26). However, the Bill:

• expands the universe of providers subject to interception capability,

• introduces new enforcement tools (Part 7A)

• enables information-sharing without matching safeguards (s 65I).

These changes increase the privacy risks for New Zealanders without equivalent increases in protection or oversight.

4. Does the Bill Expand Surveillance Powers?

Formally: No new warrant powers are created.

Practically: Yes. By expanding TICSA’s reach (new s 4A), adding strong enforcement levers (Part 7A), and enabling wider information-sharing (s 65I), the Bill meaningfully increases the practical enforceability of interception obligations, and thereby expands the real-world reach and perceived scope of New Zealand’s surveillance framework.

5. Clauses Opposed

PILLAR NZ opposes the following unless amended:

1. Clause 21: new s 4A TICSA (extra-territoriality without feasibility, conflict-of-law, or encryption

protections).

2. Clause 5: new Part 7A (especially s 65F licence revocation and s 65G reliance on summary

information).

3. s 65I: broad information-sharing without oversight.

4. Clause 18: new Schedule 4, due to broad triggers for severe penalties.

We support the objectives of Clauses 9, 14, and 17, but recommend additional safeguards.

6. Recommendations

1. Amend new TICSA s 4A to include:

a. technical feasibility tests;

b. exemptions where compliance conflicts with foreign law;

c. explicit protection for end-to-end encryption and zero-knowledge systems.

2. Modify s 65F to require material or deliberate non-compliance, proportionality, and independent review before licence actions.

3. Add oversight and minimisation requirements to s 65I, including IGIS notification and transparency reporting.

4. Apply TICSA’s privacy principles (ss 6 and 26) to decisions under new Part 7A.

5. Mandate annual reporting on Part 7A enforcement and all inter-agency information-sharing under s 65I.

7. Conclusion

PILLAR NZ supports the modernisation of telecommunications regulation and appreciates the Bill’s intent. However, Clauses 21, 5 (Part 7A), 65I, and 18 raise significant civil-liberties concerns, including privacy risks, feasibility issues, and chilling effects on expression and association.

Targeted amendments will ensure the Bill advances regulatory efficiency while respecting New Zealand’s democratic principles, NZBORA rights, and international human-rights obligations.

We welcome the opportunity to speak to this submission.