As GCSB Bill becomes law, focus turns to Telco Intercept Bill - which has a protectionist twist
The bungled Kim Dotcom raid might have highlighted illegal domestic surveillance. But despite the giant German's public campaigning it has, ironically, led to a tightening of our spy laws.
The GCSB Bill, including a provision for the Government Communications Security Bureau to assist domestic agencies with surveillance on New Zealanders, passed into law last night.
The 61-59 vote was along expected lines, with National plus ACT's John Banks and United Future's Peter Dunne supporting the legislation.
Green Party leader Russel Norman immediately pledged that a Greens-Labour government would repeal the legislation should it win power next year.
With the GCSB Bill, passed attention now turns to its companion legislation, the Telecommunications (Interception Capability and Security) Bill (TICS).
Opponents may be facing an uphill battle against spy bill fatigue as TICS goes through the house.
But there are a couple of intriguing twists.
One is its provision for the ICT Minister to require service providers (such as Apple with iMessage, Microsoft with Skype and Google with Chat, Talk etc) to make communications on their services interceptable. Apple and Google have submitted against the legislation. Will they ramp up their opposition as TICS works its way through Parliament - especially given Vikram Kumar's revelation that they could be forced to allow the GCSB back-door access, with the orders kept secret? And would the likes of Apple, Microsoft, Google or Facebook actually decide to give New Zealand a swerve?
The second is an element of what some see as trade protectionism in similar steps being taken by the US government.
Phone companies have always been required to make their networks interceptable. TICS ups the anti by giving the government a role in approving the architecture of network upgrades, and the vendors chosen to supply gear for those upgrades.
The obvious point of controversy here is China's Huawei, whom various US congressmen have insinuated is spying on behalf of the Chinese state. And across the Tasman, Huawei is barred from bidding on work related to the National Broadband Network.
Cynics have seen seen an element of trade protectionism behind the US Congress' repeated Huawei bashing (the Chinese company has repeatedly challenged its critics to produce evidence). And the de facto ban on Huawei certainly benefits US tech companies.
There is an element of close alignment with the US over the GCSB Bill and TICS Bill. NZ is part of the Five Eyes network; in the age of US-hosted internet services, barely any electronic communication is domestic-only, and John Key refused to answer a question from Russel Norman on whether the GCSB receives US funding.
But the intriguing element is that Huawei already has a major presence in New Zealand, by dint of being 2degrees primary network partner, and Telecom's partner on its 4G mobile network upgrade. It also has contracts with Vodafone, Chorus, Ultrafast Fibre and Enable Networks. Various parts of the public-private Ultrafast Broadband (UFB) rollout are using Huawei fibre, electronics and managed services.
Before the Kim Dotcom controversy broke and the spy bills were introduced, John Key correctly identified Huawei as a cost-effective option for the UFB. And it is, either directly, or by helping to make tenders more competitive.
So there's some potential ickyness there if the US does try to lean on NZ. Our telcos won't shell out for more expensive gear.
However, barring the likes of Google or Microsoft actually making a concrete threat to cut New Zealanders from their online services, I don't see the TICS debate gaining traction (and my guess is they won't, since they'll increasingly find a similar legislative environment around the world, so won't want to set a precedent).
There were impressive turnouts to a series of public meetings opposing the GCSB BIll. But overall, the issue of personal privacy just doesn't resonate that strongly with New Zealanders. Many are uncomfortable of the mass collection of meta data, but only vaguely. For most, it's not a vote-deciding issue. And an articulate minority of right wing critics to the GCSB Bill completely failed to convince swing voters John Banks and Peter Dunne to change their minds. Prospects are slim-to-none they'll jump the fence with TICS.
RAW DATA: Third reading speech on GCSB legislation - John Key's speech
RAW DATA: Third reading speech on GCSB legislation - John Key's speech
Mr Speaker, this is an essential Bill which has attracted a lot of debate, much of it alarmist.
It’s one of the strengths of our country that people who oppose legislation have an opportunity to say so.
That’s their right, whether or not they understand what that legislation will actually do.
Some people are fundamentally opposed to the work of our intelligence agencies.
Those critics oppose the agencies almost on principle.
As Prime Minister, I am not one of those people.
That’s because I have access to evidence which shows that without the GCSB and NZSIS, our national security would be vulnerable.
There are threats our Government needs to protect New Zealanders from. Those threats are real and ever-present and we under-estimate them at our peril.
New Zealanders are entitled to expect that their security is something that the Government takes seriously. And we do. We take it very seriously.
But we can’t say we take it seriously, and then not make the tools available to allow our security services to do their job.
That is the opposite of taking security seriously.
And that is something I will never do.
Over the past four and a half years that I have been Prime Minister, I have been briefed by intelligence agencies on many issues, some that have deeply concerned me.
If I could disclose some of the risks and threats from which our security services protect us, I think it would cut dead some of the more fanciful claims that I’ve heard lately from those who oppose this Bill.
But to disclose that work publicly would, in some cases, jeopardise it, so I can’t.
I can only assure New Zealanders that the GCSB is a necessary and valuable contributor to our national security – just ask my predecessor Helen Clark, who said as much just a couple of weeks ago.
Today as the House debates this Bill, I think it’s important we all know why it is needed.
It isn’t a revolution in the way New Zealand conducts its intelligence operations. It is not about expanding the powers of a mysterious intelligence empire.
It simply makes clear what the GCSB may and may not do, and it fixes an Act passed under the Labour Government a decade ago which is not, and probably never has been, fit for purpose.
It’s a great shame to see Labour now running away from sorting out the problems it created.
But here in the National Party, Mr Speaker, I’m proud we recognise the importance of national security.
And I’m pleased that John Banks and Peter Dunne do too.
I’d like to acknowledge Mr Dunne and Mr Banks for their efforts to strengthen this legislation.
It is a better Bill for their input.
Mr Speaker, this Bill makes the GCSB’s three functions clear.
- Information assurance and cyber security;
- Foreign intelligence, and;
- Assisting other agencies.
The first of these functions allows the GCSB to help protect government organisations and important private sector entities from cyber-attack.
This is a growing threat which targets our information and the intellectual property of our best and brightest.
Already this year the number of logged cyber-attack incidents is larger than it was for all of last year.
GCSB's specialist skills can help protect departments and companies and this Bill gives it the clear mandate to do that.
A lot has been said about this so I want to be clear about a few things.
Cyber security is about protecting our secrets. It’s not about spying.
The Bill requires GCSB to get a warrant from the independent Commissioner of Security Warrants and me before it can intercept a New Zealander’s communications.
That warrant must be issued for a particular function, in this case cyber security. The clear intention of that function is to protect, not to spy.
The Bill also allows for conditions to be put on warrants and I intend to do that.
I will not allow cyber security warrants in the first instance to give GCSB access to the content of New Zealanders’ communications.
There will be times where a serious cyber intrusion is detected against a New Zealander and the GCSB will then need to look at content – that’s why the law allows that.
But that should be the end point, not the starting point.
So I intend to use a two-step process for warrants, requiring the GCSB to come back and make the case for a new warrant to access content, only where the content is relevant to a significant threat.
I also expect the GCSB to have the consent of the New Zealander involved unless there was a very good reason not to.
The second function of the GCSB is, as I said, – collecting foreign intelligence. That has been the largest portion of the agency’s work.
The third function allows the GCSB to assist the Police, NZSIS and NZ Defence Force.
This is something it has been doing for more than a decade, including under the previous Government.
At all times the GCSB believed it was acting lawfully, as did the Inspector General of Intelligence and Security and successive Prime Ministers.
This is because GCSB’s Act said it could assist others. But its Act also stated it couldn’t undertake surveillance on New Zealanders.
No agency should operate with such an ambiguous legal framework.
The Kitteridge review identified just 88 cases of assistance over 10 years – an average of under nine people a year.
So this isn’t and will never be ‘wholesale spying on New Zealanders’.
The truth is that GCSB has unique capabilities.
It makes no sense to duplicate those when they are so rarely used.
Instead, we will make it clear GCSB can assist only those three agencies, and only when they are able to show they have the lawful authority to undertake the surveillance themselves.
Mr Speaker, nothing in this Bill allows for wholesale spying on New Zealanders.
This Bill actually tightens, not widens, the existing regime.
I also want to be clear about another issue in this Bill, that is metadata.
There have been claims this Bill offers no protection of metadata and allows for wholesale collection of metadata without a warrant.
None of that is true.
Metadata is treated the same in this Bill as the content of a communication.
So when the GCSB wants to access metadata, it is treated with the same level of seriousness and protection as if the GCSB was accessing the actual content of a communication.
And there are protections around that.
Mr Speaker, this Bill is good legislation, and it is necessary legislation.
It fixes the problems with the current Act, and clears up the ambiguities that Labour passed into law a decade ago.
It puts in place a robust review of the intelligence agencies in 2015 and every five to seven years thereafter.
It requires more transparency, through open public hearings for the financial reviews of the intelligence agencies.
It requires the GCSB to tell New Zealanders how many times it has assisted other agencies and how many warrants and authorisations it has been issued.
It gives the GCSB a set of guiding principles that acknowledge the importance of human rights, independence, integrity, and professionalism.
And it puts in place a stronger oversight regime that will go some way to rebuilding public confidence in the GCSB.
Mr Speaker, I have rarely seen so much misinformation and conspiracy about a subject as has been perpetrated about this Bill. That has some citizens agitated and alarmed, which I regret.
But my regret about that would be nothing compared with my regret if this measure was not passed, and New Zealanders were harmed because of the gap that currently exists in our security arrangements.
This Bill is being passed today because its provisions are needed today.
They are needed right now because there are threats against us right now.
Others may play politics with the security and lives of New Zealanders but I cannot and I do not, and I will not.
That is why I commend this Bill to the House.