NZ banks’ terms & conditions for handing customer data to the police

Nicky Hager’s lawyer Felix Geiringer  asks: What do New Zealand’s leading banks say in their terms and conditions about handing their customers’ data to Police and other Govt agencies?

They say they will hand over customer to data in breach of Privacy Act. Westpac have apologised to Hager and have promised to change their terms

But the other major banks have made vague assertions that they will not breach customer privacy but still have dodgy terms, and have not made a commitment to change their terms to comply with the law.

Regardless of views about Hager’s use of hacked data, this is an important issue for everyone.

Via Twitter @BarristerNZ:

There has been significant publicity over Westpac’s decision to hand Nicky Hager’s data to Police. But this issue was never limited to Westpac.

A study conducted by the OPC in 2015 suggested that our financial institutions might have been releasing to Govt the data of close to 10,000 customers per annum without a warrant / production order.

Possibly close to 10,000 customers each year! And this appears to have been happening for over a decade.

Plus, all our banks, not just Westpac, had entered into a written agreement with NZ Police to give over customers data without warrants or productions orders.

Basically, all our banks promised Police that they would breach the Privacy Act if Police asked them to. And it looks like Police may have made many thousands of such requests.

Westpac said to Hager that its terms permitted the release. The OPC rejected the argument that those terms could be relied upon. However, Westpac terms, on their face, did set a much lower bar for releasing data than our Privacy or Search and Surveillance legislation.

Westpac have apologised for its breach, and it has also promised to change its terms. There will now be an enforceable contractual promise from that bank to customers that it will not do this again.

What about other banks?

I am told that in answer to journalists’ questions some other banks have made vague assertions that they will not breach customer privacy. But what do their terms actually say?

Kiwibank’s terms are very similar to the ones Westpac had at the time of the Hager release.

Kiwibank’s terms assert that, by banking with it, you authorise it to release your data to Police whenever Kiwibank thinks it will help Police with an investigation.

That test bypasses the protections that parliament has put in place which limit releases to circumstances where Police can objectively establish reasonable grounds to believe the data is evidence of a crime.

ANZ’s terms are almost the same again, arguably even looser. It says that by banking with it you agree that it can give your data to Police if it believes that doing so will help prevent crime.

ASB’s terms are more open to interpretation. It can release data to Police when required to by law. There can be no objection to that. But it can also release data in a variety of other circumstances.

ASB’s terms define the purposes for which it is holding your data to include to “investigate illegal activity”. The terms allow release to 3rd parties for this purpose. However, the Govt isn’t expressly listed as one of those 3rd parties.

If the list of 3rd parties in ASB’s terms is read as a closed list, it arguably has the best terms. If it is not read as a closed list, then it has one of the worst terms.

BNZ’s terms are clear, and are clearly the worst of those discussed here. Its terms claim that you have authorised it to share your data with Police or other Govt agencies for the purpose of detecting any crime.

The circumstances of release permitted by BNZ’s terms are astoundingly broad. Those terms have little regard for the duty to protect the secrecy of BNZ’s customers’ information.

I haven”t analysed TSB’s terms.

So, there you have it, and I think that this raises serious questions. We know the NZ banks were doing a very bad job of protecting our private data. They say they are doing better now, but are they?

And, if these banks are now not handing over data to Police without a warrant or production order, why is this still not reflected in their terms?

Principle 11, Privacy Act 1993 – 6 Information privacy principles: Limits on disclosure of personal information

 

Stuff repeats Herald mistake on foreign buyers

Yesterday NZ Herald:  It’s not 3% – ASB analysis suggests up to a fifth of properties sold to non-residents

Analysis from ASB has found that Statistics New Zealand’s estimate that non-citizens accounted for only 3 per cent of house purchases is well short.

Economists from the bank say the figure more likely sits between 11 and 21 per cent.

Examining transfers or purchases of New Zealand property, Mark Smith and Nick Tuffley analysed the information and reached different conclusions to those released by Statistics NZ.

“The estimates suggest that non-resident purchases made up around 3 per cent of nationwide house purchases over the March 2018 year. This was in a similar ballpark to previously published figures. However, anywhere from 11 per cent to 21 per cent of reported purchases over that period involved a non-NZ citizen, with the proportion considerably higher for some areas, particularly Auckland and Queenstown,” they wrote in their latest Economic Note.

This was criticised on Twitter:

Going deeper into the economic note, there is a strong sense that the reason non-residents and non-citizens are getting mixed up is because the authors of this report believe that citizens have more of a right to own property than non-citizens, even those who are resident here.

Hey , resident non-citizens who buy houses so they can live somewhere are not the same as the “overseas investors” that you’re worried about. Conflating them is not just misleading, but kinda dangerous eh?

ASB did the analysis, published an economic note/report, and then gave it to all the media agencies, who are basically just quoting what it says in the report. So pretty sure the fault lies with ASB’s economists.

ASB conflated them. The distinction matters because there are people who live in this country who are non-citizens, but they are definitely residents and shouldn’t be lumped into “foreign investor”

I know someone who was a permanent resident for over thirty years, part owning four houses, before becoming a citizen.

The Herald have since changed the headline to “sold to non-citizens”.

But today Stuff make the same mistake, if not worse: As many as one in five house buyers in NZ may be foreign

Restrictions on foreigners buying New Zealand property will depress prices, one economist says – and the effect may be greater than some have predicted.

The Overseas Investment Amendment Bill is working its way to becoming law.

But while official statistics and anecdotal evidence from the real estate industry indicate only 3 per cent of sales are to overseas buyers, ASB senior economist Mark Smith at ASB said that number might be deceptively low.

He said another 8 per cent of sales were attributable to resident visa-holders who were not citizens, such as people who had newly migrated.

And such as people who migrated years ago, and decades ago.

Another 10 per cent were corporate entities, for which ownership information is not available.

If there is no information then no assumptions can be made about nationality.

He said anything from 11 per cent to 21 per cent of purchases in the March 2018 involved a non-New Zealand citizen.

Actually that should be “anything from 3 per cent to 21 per cent of purchases in the March 2018 involved a non-New Zealand citizen”.

But it is unlikely to be anywhere near 21%. And permanent residents are likely to be a significant portion of 3-11%.

This is poor analysis from the ASB and very poor reporting from the Herald and Stuff.

 

Barbara Chapman at NZ Rugby awards

NZ Rugby sponsor ASB’s chief executive Barbara Chapman kicked off last nights NZ Rugby awards with a speech that warned about the dangers to the sport of player conduct.

The Rugby Union seem to be taking player behaviour and attitudes to women seriously, but would do well to take heed of what Chapman said.

Also last night, for the first time in the Rugby Union’s history, a woman was appointed to the board – Dr Farah Palmer.

The rugby world is changing with the times. I think this is a good thing. I have been a big fan of rugby all my life, but have been disappointed in the past by some of the behaviours and attitudes that were prevalent. I hope things continue to improve.

Chapman’s speech:


Kia Ora

Distinguished Guests, Ladies and Gentlemen. Welcome.

There’s no doubt, this has been another hugely successful year for rugby in New Zealand, across all levels of the game.

But along with success on the field, over the past year the role of rugby, the conduct of rugby players and the importance of sport in the context of New Zealand society has been the subject of a great deal of media scrutiny and kitchen table debate.

I see this debate as a good thing.

Rugby, as well as being something we love, is a lightning rod for everything which is good, and a few things which are not good, about New Zealand. As a nation we feel that rugby represents us and we want to be proud of it. As a sponsor our team at ASB aligns with what is best about rugby, and we feel bad when that standard is not met.

And as a New Zealander, and a woman, I share with you the joys and highlights of the game but despair at the controversy which can engulf the sport we all love.

In many ways, rugby is a microcosm of New Zealand society; so much good and positive work is done by the rugby community and yet, just like New Zealand society as a whole, there is always more work to be done around building diversity and ensuring people from all backgrounds feel included and valued.

And because rugby is the lightning rod for this debate in New Zealand, as a New Zealander and a sponsor I applaud the work Brent Impey and Steve Tew and his team have done to critically review what good conduct and good governance means in sport, and how to set their bar higher.

I applaud the rugby union on the appointment of Dr Farah Palmer to their board after nearly 125 years of no women representation, and wish her well, but tonight – on behalf of the team at ASB and as the major sponsor of tonight’s event – our applause needs to go to all the outstanding men and women of New Zealand rugby who have, do and will continue to make us proud New Zealanders.

This is your night to celebrate. Thank you for letting us be part of it.

Merry Christmas.