Apple recently released a statement about their cooperation with law enforcement. It includes:

For example, conversations which take place over iMessage and FaceTime are protected by end-to-end encryption so no one but the sender and receiver can see or read them. Apple cannot decrypt that data.

[Update: see this discussion about whether this is entirely true.]

Does this mean that Apple will not be complying with New Zealand law?



Interception capable

The TICS bill makes it mandatory for network providers to be intercept capable. This means that they must provide surveillance agencies (Police, SIS or GCSB) communications related data when given a valid warrant or access authorisation. However, Apple is not a network provider.

However, there is also provision to give service providers (anyone who provides a telecommunications service) the same interception responsibilities as network providers. Any surveillance agency can apply to the Minister if they believe that “lack of interception capability on the telecommunications service offered by that provider adversely affects national security or law enforcement”. i.e. if they believe someone could be organising crimes over iMessage.

Assuming that Apple are telling the truth and do not have the keys (as would be done in a well-designed system) they would not be able to provide intercepted information when presented with a warrant. This would be in breach of the TICS law and they would be liable for a fine of $500,000 and $50,000 per day.

Resold telecommunications services

Section 39 of the TICS Bill can also be used to forbid the resale of a foreign telecommunications service in New Zealand if it doesn’t provide lawful intercept for New Zealand surveillance agencies.

Vodafone and Telecom both resell the iPhone in New Zealand and the iPhone obviously includes foreign telecommunications services that cannot be intercepted. Will a surveillance agency apply to the Minister to stop them?

Conclusion

Will the GCSB allow Apple to continue selling their iMessage and Facetime equipped devices in New Zealand without legal intercept facilities?

Or will the government decide that taking on Apple and their loyal customers is a bad idea and allow Apple to keep selling to New Zealanders?

And if Apple can keep selling theirs, wouldn’t it be unfair to pick on smaller and less powerful overseas operators and ban their products? It wouldn’t matter anyway because criminals would obviously gravitate towards the unspyable Apple products.

Most importantly – do we want a government spy bureau deciding what services and equipment can and cannot be made available to New Zealanders? Do the proposals in the TICS bill make sense? At Tech Liberty we believe the answer is no.