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Telecommunications (Interception Capability and Security) Act 2013

Interception capability duties - Ministerial directions - Minister may require service providers to have same obligations as network operators

38: Minister may require service providers to have same obligations as network operators

You could also call this:

"The Minister can make service providers follow the same rules as network operators for national security or law enforcement."

Illustration for Telecommunications (Interception Capability and Security) Act 2013

The Minister can tell a telecommunications service provider to follow the same rules as network operators. You need to know that this can happen if a surveillance agency asks the Minister to do so. The Minister will consider things like national security and how it affects the service provider's business. The surveillance agency can only ask the Minister to do this if they think it is necessary for national security or law enforcement. You should be aware that the agency must tell the service provider that they are making this request. The service provider can then give their thoughts on the request to the Minister. The Minister must talk to other Ministers and consider things like the cost to the service provider and how it affects telecommunications in New Zealand. The Minister can only make this decision if they think it is necessary for national security or law enforcement. They must also think about how it affects the service provider and the telecommunications industry. The Minister must consider whether the current level of interception capability affects national security or law enforcement. They must also think about whether the cost of following the new rules would seriously hurt the service provider's business. The Minister's main concern is national security and law enforcement. The Minister cannot give someone else the power to make this decision, except for another Minister. They are in charge of making this decision and must consider all the relevant information. You can find more information about the rules that network operators follow in sections 9 and 10, and the parts of the law that apply to them in Parts 1 and 4.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM5178069.

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Part 2Interception capability duties
Ministerial directions: Minister may require service providers to have same obligations as network operators

38Minister may require service providers to have same obligations as network operators

  1. The Minister may, at the application of a surveillance agency in accordance with this section, direct that a telecommunications service provider—

  2. comply with one of the following duties:
    1. the duty to comply with sections 9 and 10:
      1. the duty to be intercept ready:
        1. the duty to be intercept accessible; and
        2. be treated as having the same obligations and rights as a network operator under this Part (except for sections 13 to 20, and 23) and Parts 1 and 4.

          1. A surveillance agency may make an application for a ministerial direction under this section only if—

          2. the surveillance agency considers that lack of interception capability on the telecommunications service offered by that provider adversely affects national security or law enforcement; and
            1. at the time of application, 1 or more telecommunications service offered by that provider is a service over which the surveillance agency could lawfully execute an interception warrant or any other lawful interception authority.

              1. The surveillance agency must, when applying for a ministerial direction, notify the affected service provider in writing that it is applying for a direction under this section and specify in the notice a time, which must be reasonable in the circumstances, within which submissions may be made to the Minister on the application.

              2. The affected service provider may make submissions to the Minister on the application.

              3. The Minister must consult with the responsible Ministers and the Minister for Communications and Information Technology.

              4. The Minister must not make a direction unless—

              5. the Minister has taken into account the views, if any, of the Ministers referred to in subsection (5) and the affected service provider; and
                1. the Minister has taken account of the matters set out in subsection (7); and
                  1. the Minister is satisfied on reasonable grounds that the direction is necessary for reasons of national security or law enforcement, or both.

                    1. The matters that the Minister must take into account are—

                    2. whether the current level of interception capability on any services provided by the affected service provider adversely affects national security or law enforcement; and
                      1. whether the cost of compliance would have a serious adverse effect on the business of the affected service provider; and
                        1. whether the new duties would unreasonably impair the provision of telecommunications services in New Zealand or competition in telecommunications markets or create barriers to the introduction of new or innovative technologies; and
                          1. any other matter that the Minister considers relevant in the circumstances.

                            1. The Minister must give primacy to the matter described in subsection (7)(a).

                            2. The Minister must not delegate to any person, other than another Minister, the power to make a direction under this section.