1. Introduction
1.1. This bill makes a variety of amendments to the Radiocommunications Act 1989. I wish to comment solely on:
1.2. I provided a submission to the Ministry of Commerce in relation to its discussion paper on the registers of radio frequencies in 1995. Subsequently, my office was consulted by the Ministry in respect of the two issues mentioned above. I largely support the approach taken to the issues in the bill.
2. Register of radio frequencies
2.1. The Ministry of Commerce currently maintains two databases. The National Frequency Register (NFR) and the Register of Radio Frequencies (RRF). It is only the RRF which is currently recognised in the statute and comes with an express statutory right of public search. The NFR, which has information in relation to radio licences, is not expressly recognised in the statute and no special right for public search exists (although information can be sought pursuant to the Official Information Act 1982). The bill will put both registers on the same statutory footing and spell out how the registers are to be maintained and public access given.
2.2. I generally support the approach that the Ministry has taken to reforming the law relating to these two registers. Some key features, which I will comment upon, include:
2.3. The bill's main shortcoming in my view is that it does not provide that sections 5 and 28 of the Radiocommunications Act 1989 are to be listed in the Second Schedule to the Privacy Act as a "public register provisions". I maintain that it should and will comment upon this issue first.
Public register provision
2.4. When the Privacy Act was passed in 1993 there was no time to survey all the provisions in statute or regulations establishing registers and therefore only a partial list of "public register provisions" presently appears in the Second Schedule. The Second Schedule is mainly a list of public registers maintained by the (then) Justice Department with a small number of other important registers, such as the motor vehicle register.
2.5. In the years since the enactment of the Privacy Act I have scrutinised bills which created new registers or which continued existing ones. My office has raised with the departments concerned the issue of whether they should now be identified as "public registers" for the purposes of the Privacy Act. A number of registers have been added to the schedule in that way. As part of this ongoing process I consulted with the Ministry of Commerce in respect of the proposal to re-enact the provisions dealing with the RRF, and to add the NFR, and have formed the view that the provision should be listed as a public register provision. I understand that the Ministry of Commerce broadly accepts this but needed a little longer to consider the matter. Therefore the bill was introduced without expressly providing for the register to be listed as a public register provision but the Ministry indicated to my office that it would complete its consideration of the issue.
2.6. If section 5 of the Act is listed as a "public register provision" in the Second Schedule to the Privacy Act there will be several consequences:
2.7. This register has all the characteristics of a "public register". I recommend that sections 5 and 28 of the Radiocommunications Act should be added to the Second Schedule to the Privacy Act as public register provisions.
Purpose of register
2.8. Currently section 5 of the Radiocommunications Act states:
2.9. The bill will amend this to read:
2.10. I support the inclusion of a statement of purpose in regard to the register. Legislation governing many existing public registers gives little indication as to why Parliament established them. This can make it difficult for the agencies which administer public registers, and others interested in the issues such as myself, to assess the case for new public or private uses of the information contained on the register. A key privacy concern in any processing of personal information is that the individual concerned be made aware of the purpose of collection and that the information subsequently be used only for such purposes or directly related purposes (subject to certain limited exceptions). Public registers carry particular risks in this regard since they involve bulk holdings of systematically organised information on a large number of people and this makes the information particularly attractive to officials and others to think up new uses for the information.
2.11. There are two places in a statutory register scheme at which the question of "purpose" may be relevant. The first is the purpose of establishing a statutory register at all. This relates to the objectives of the legislation and the official reason related to the administration of the legislation that require the creation of a register. The second is the purpose for giving a right to search to people other than officials. It may be that the statement of purpose in section 5 can be improved upon since at present it says relatively little. However, the bill gives further guidance as to purpose in clause 11 in the second context.
2.12. Sometimes the purpose for which public search rights are
conferred will be obvious from the context, or can be derived
from the statement of purpose set out for establishing the register.
However, I am aware of cases - particularly with older registers
- where officials maintaining registers are perplexed as to the
reason why Parliament ever created a right to search the register.
In this bill clause 11, which substitutes a new section 28 into
the Act, makes the purpose clear by providing that subject to
conditions any person may have access to the register:
2.13. This guidance as to purpose is further elaborated upon through
a process which can provide additional flexibility and straightforward
application of the regime. That is provided for in proposed section
28(4) which provides that information may be disclosed:
2.14. I understand, for example, that it is contemplated that regulations would be issued giving registered radio engineers freer access to certain information due to a "need to know" such information in terms of their job.
Search references
2.15. One of the key privacy safeguards in the public register privacy principles relates to search references. Public register privacy principle 1 provides:
"Principle 1
Search references
Personal information shall be made available from a public register only by search references that are consistent with the manner in which the register is indexed or organised."
2.16. Principle 1 will be directly applicable to the register if sections 5 and 28 are added to the Second Schedule of the Privacy Act. If it is not then the principle still provides a guide as to how one might consider the privacy issues in relation to the statutory registers which are open to search.
2.17. To obtain information from a public register a search will normally quote a search reference. Search references are essentially required for ease of administration. Typically registers were originally maintained in a register book or in filing cabinets, consistent with a logical ordering. Search references naturally flowed from the subject matter of the register or from the way it was organised. Search reference may help ensure protection of privacy in a pragmatic way. Someone who can quote the reference may well have some sort of business seeing the file and could be shown the records.
2.18. Settling upon the appropriate search references is an important part of the task for addressing public register privacy issues. In the context of creating a new register, or changing the nature of an existing one, it requires consideration of which search references are believed to be appropriate for the new or changed register. The issue has become particularly important in the electronic age with registers often held on a computer database without the physical constraints of filing systems and books. Since the physical constraints will not protect privacy, the legal constraints have heightened importance. Accordingly, I have encouraged departments who have created public registers over the last four years to consider expressly setting out the search references in legislation.
2.19. In this case, clause 11 inserts a proposed section 28(2) which states that:
"The register must be so arranged that it may be searched by:
2.20. It is anticipated that the first two categories of search references will meet all legitimate needs. However paragraph (c) provides a further degree of flexibility. I have supported this approach in this and other legislation since there may sometimes be a case to change or enlarge the types of search references and this need not always be to the detriment of privacy. The creation of additional search references by regulation would need to be done with the purpose of the register in mind. In terms of the processes for seeking authority to make regulations, the Cabinet Office Manual require compliance with privacy principles to be indicated. By changing the references by regulation, rather than administratively, the process and outcome are controlled and transparent.
2.21. It is proposed that the new section 28(3)(a) of the Act will provide:
"The registrar must not disclose, otherwise than in accordance with this section:
2.22. The issue primarily arises in relation to the new information to be added to the RRF about radio licence holders, primarily those generally known as "amateur radio operators". I understand that the process to be adopted will provide on the annual licence application, or renewal, form for the individual to authorise, if they so wish, the release of details of their residential address. This is a privacy sensitive arrangement which involves the disclosure of residential address only if the individual choose to "opt in" to that arrangement.
2.23. The issue tends to arise in relation to private organisations representing amateur radio operators which wish to publish directories not only of their members but of all licensed radio operators in their relevant districts. These directories are widely used in the amateur radio community, for example to facilitate the exchange of "QSL" greeting cards.
2.24. I am confident that the process that is proposed will lead to a satisfactory resolution of the issue and indeed a freer flow of information to these associations than has been the case over recent years. The arrangements contemplated under section 28(3) involve, I understand, disclosure of:
2.25. The matter has involved not simply a consideration of the law but also some practical matters of implementation. Apparently, the present computer system used for administering radio licences could not satisfactorily cope with distinguishing between individuals who authorise or decline to release their residential address. The changes anticipated by this bill will coincide with an upgrading of the computer system thereby enabling smooth implementation of the proposed arrangement.
3. Offence to disclose contents of radiocommunications - clause 43
Introduction
3.1. Clause 43 inserts a new section 133A in the principal Act. This new section makes it an offence to make use of, to reproduce or to cause or permit to be reproduced, or to disclose the existence of, a radiocommunication where the communication was not intended for the recipient. There are exceptions to the prohibition contained in the section which primarily revolve around use, reproduction, or disclosure:
by the Secretary of Commerce for the purpose of ensuring compliance with the Radiocommunications Act;
by law enforcement officials for the purposes of avoiding prejudice to the maintenance of the law;
by officers of the SIS or GCSB for the purposes of obtaining intelligence or foreign intelligence;
by the New Zealand Defence Force for defence purposes;
by persons acting under authorities listed in four specific statutes.
3.2. The clause is intended to strengthen the provisions relating to the privacy of radiocommunications and I support the measure. In the balance of this report I will comment upon aspects of the background and effect of the provision.
3.3. Although the provision will appear in the Radiocommunications
Act for the first time it does continue a provision which
already exists currently in the Radiocommunications Regulations
1987. Clause 28 of the regulations states:
"Privacy of radiocommunications - Except as may be authorised under these regulations or under any licence granted pursuant to these regulations, no person who receives any radiocommunications not intended for that person shall:
make use of the radiocommunication or any information derived therefrom;
reproduce or cause or permit to be reproduced the radiocommunication or information derived therefrom;
disclose the fact of the existence of the radiocommunication."
The Longworth Report
3.4. It will be noted that subsection (1) of the proposed section 133A is almost identical to this regulation. The origin of the proposal to remove that regulation and place it in the statute can be found in the Ministry of Commerce 1992 report Telecommunications and Privacy Issues ("the Longworth Report).
3.5. Amongst other things, the Longworth Report discussed privacy expectations in relation to a variety of radiocommunications. The report noted, for example, that the public is not generally aware of the interceptability of cellular conversations and therefore conduct communications with some sensitivity on them. While most radiocommunications are public with little expectation of privacy, there are certain specific applications of the technology, linked to the use of the telephone, where there is a reasonable expectation of privacy. The main example would be the ubiquitous cellphone which is treated by most users as equivalent to an ordinary telephone. Calls lodged through the telephone system to ships through the INMARSAT service has similar "private" qualities. I am concerned to see the privacy of such communications protected.
3.6. The report also noted that the casual interception of cellular conversations may occur unintentionally. The Crimes Act criminalises only the intentional interception of private oral communication, which may include cellphones, through listening devices. The Crimes Act does not address the problem of unintentional interception of cellular networks. Regulation 24 is discussed in this context as a way of addressing the privacy issues in unintentional interception with the solution being to prohibit the use, reproduction and disclosure of radiocommunications not intended for that person. The report suggests that the provision should be reviewed so as to give it more prominence rather than burying it in the "relatively obscure regulations".
3.7. Regulation 24, and the replacement statutory provision, seems to me to play a valuable role in respect of protecting privacy in this area of radiocommunications and telecommunications. It especially fills a void where the interception of private communications is unintentional or claimed to be so.
3.8. Moving the provision into the Act meant that it is necessary to consider what would constitute an appropriate sanction for breach of the provision. The regulation contained no express sanction. The creation of a statutory offence is the obvious response and I support it.
Exceptions to the general prohibition
3.9. In developing the statutory provision it was considered necessary to spell out the situations where it is permissible for a person to make use of radiocommunications not intended for that person. An example might be in the context of a police raid on a drug gang's operation carried out in a bush area. The police might monitor the gang's radiocommunications prior to moving in on foot and by helicopter. Another example is the use of information derived from interceptions of cellular telephones pursuant to a statutory warrant. These uses were not previously spelt out in the existing regulations.
3.10. Bearing in mind the important public interest which compete with privacy, I consider that it is reasonable to write exceptions into the statutory prohibition contained in the new section 133A notwithstanding that there were no exceptions to the prohibition contained in the existing regulation. In noting the reasonableness of the exceptions I particularly observe that each of the exceptions in subsection (2) to section 133A restricts both the persons to whom each exception applies and the purpose for which exceptional use, reproduction or disclosure, may be made.
3.11. Subsection (4) makes it clear that subsection (2) does not authorise the interception of private communications within the meaning of section 216A of the Crimes Act 1961 without an interception warrant. It is essential in my view that the general prohibition on intentional interception of private communications remain, but where law enforcement interception of private communications involving radiocommunications occurs (i.e. primarily involving cellular telephones) that this should be done only pursuant to an interception warrant.
4. Conclusions
Register
4.1. In my view, the legislation has met the challenge of reconciling the generally public nature of statutory registers with expectations of privacy in a positive and practical way. In terms of the main block of personal information being added to the register open to public search, that is information about amateur radio licence holders, I am satisfied from discussions with the Ministry that the new statutory regime will provide a more satisfactory basis for protecting privacy and additionally enable a generally freer flow of authorised information to the NZ Association of Radio Transmitters Inc and similar clubs and societies. My one recommendation is that sections 5 and 28 be added to the Second Schedule of the Privacy Act as public register provisions.
Offence to disclose contents of radiocommunication
4.2. I support the approach of clause 43 to implement the Longworth
Report by moving the existing prohibition from the regulations
to the Act, together with the creation of an offence with appropriate
exceptions.
B H Slane
Privacy Commissioner
19 January 1998