Wholesale spy power is precisely what GCSB bill means for Kiwis

Rodney Harrison, QC


On television this week, Prime Minister John Key tried to assure the public it was "totally incorrect" that "the Government effectively through GCSB will be able to wholesale spy on New Zealanders".  (Watch the Campbell Live interview here).

Those who contend otherwise are, he says, plain wrong. That Mr Key has at last seen fit to engage in public debate about the effect of the GCSB bill demonstrates how critical his denial of the "wholesale spying" claim is, as far as the rest of us are concerned.

The last thing that many will want to read is yet another opinion piece on the GCSB bill. But this issue really is the centre of controversy over the undemocratic way this bill is being rammed through, despite legitimate public concerns about the rampant interception of communications occurring here and overseas.

In order to understand what the GCSB bill would do and whether it goes too far, it is necessary to compare its provisions with those of the existing GCSB Act 2003. That is necessary to refute Mr Key's claims that nothing much is changing.

We need first to identify the three kinds of information or data at stake.

First, there is the content of our communications, electronic and otherwise.

Secondly, there is the "metadata", the transactional record generated when we communicate electronically (such as email), other than content.

Thirdly, there are the "keystrokes": the record of our online activities, such as the websites we visit. Each of these, collected over time and potentially stored forever, will disclose a great deal about us. Combined, they have the potential to create an extraordinarily revealing portrait of each of us and our associations and interests.

In a nutshell, the reason why Mr Key is wrong as a matter of law in claiming that New Zealanders have nothing to fear from the GCSB bill is that his limited analysis of the three new functions to be conferred on the GCSB totally overlooks the point that the statutory intelligence-gathering powers of the GCSB are also being considerably expanded, at the same time as its functions are. When the totality of the changes is considered, we have a major increase in the overall role and powers of the GCSB. That, in some instances, the Prime Minister's authority is required for the GCSB to proceed cannot alter this.

The present GCSB Act limits the GCSB to gathering and analysis of "foreign intelligence", defined to mean "information about the capabilities, intentions, or activities of a foreign organisation or a foreign person". That is, it is prohibited from spying to obtain intelligence on New Zealanders and equally, on New Zealand entities and businesses.

The GCSB bill abolishes the restraint on GCSB activities to "foreign intelligence", and instead confers three considerably expanded functions. When Mr Key stated on television that the first of the three things the GCSB would be empowered to do is "foreign intelligence-gathering - nothing to do with New Zealanders", he was in error. The new 8B function discussed below covers both foreign and domestic intelligence-gathering.

The bill would give the GCSB under 8A a much wider cybersecurity protection function. Intelligence-gathering by the GCSB is empowered under that function, but significantly the limited protection conferred by proposed section 14 in relation to the "personal communications" of New Zealand citizens and permanent residents ("New Zealanders", for short) would not apply to the GCSB when operating under 8A.

Secondly, a new intelligence-gathering and analysis function is to be conferred on the GCSB under 8B. This function is very broadly worded. In particular it permits the gathering of intelligence about "information infrastructures". That is defined widely enough to cover all types of electronic data systems (phones, computers, ISPs and telecommunications networks) and their content.

These two new intelligence-gathering functions are not in any way restricted solely to targeted intelligence-gathering and collection of data (as against "wholesale spying"), from New Zealanders or indeed from others. By contrast with the present act, the GCSB bill both substantially expands the scope of the existing "interception warrants", and introduces a new information-gathering tool, the "access authorisation". Under proposed 15A(1), an interception warrant can be granted to intercept the communications of one or more persons or classes of persons or of "places" (for example, the location of an ISP), or all or any communications sent from or to a nominated overseas country. An access authorisation can also be granted authorising the accessing of one or more specified "information infrastructures" or classes of infrastructure. These are very broad "wholesale" powers.

Furthermore, if the bill becomes law the GCSB, when it asks the Prime Minister for a warrant or authorisation, does not have to make out any particular threat to national security in relation to particular individuals, or even a generalised threat to security. That is by distinct contrast to our other spy agency the NZSIS, which must do so. The GCSB merely has to identify a hoped-for outcome which sufficiently justifies the interception or access which it is proposing. That is a very low threshold. Thus the bill will provide the GCSB with tools which will enable it to engage in "wholesale spying".

The GCSB bill does draw a distinction between New Zealanders and others. Under section 14 the GCSB when performing its 8B intelligence-gathering function is forbidden from deliberately targeting New Zealanders for the purpose of intercepting their "private communications". However, that definitely does not mean the communications of all in New Zealand are safe from "wholesale spying" by the GCSB, let alone by New Zealand's security partners.

The section 14 protection relates only to private communications, defined in such a way as to exclude metadata and also any communication "occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by" a third party. And because the section 14 prohibition on targeting relates only to the "intercepting" of private communications, it would appear to relate only to interception warrants as such, and not the new and highly potent "access authorisation". The section 14 protection is strictly limited to New Zealanders. It will not protect the "private communications" of New Zealand legal entities such as NGOs or businesses.

Mr Key is careful to limit his concession - announced on Thursday - to the GCSB's cyber-security function. There is no such concession regarding not accessing New Zealanders' content in the first instance under the 8B function. But that is the main area of expanded power, and of concern. Thus the concession falls far short of an adequate assurance.

The third new function proposed (under 8C) is one of co-operation with other agencies to facilitate their functions. Here the bill as reported back has improved the drafting. But it remains a significantly expanded function compared with the present act. And Mr Key refuses outright to identify precisely what activities by the GCSB would be authorised to carry out under the guise of providing co-operation, advice and assistance to the Police, the Defence Force and the NZSIS. That is unacceptable.

The Prime Minister's attempt to reassure New Zealanders we are not sleepwalking into a total surveillance society is, unfortunately, flawed in its legal analysis and fails to convince.

Dr Rodney Harrison, QC, is an Auckland barrister active in the public debate challenging the GCSB legislation.

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Anyone who thinks this law won't be susceptible to abuse for domestic political purposes is surely mistaken.

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Remember the urban myth about the old Mafia chief in the US, who, when finally caught, was asked, 'how come you stayed on the loose for so long?' (This was in the era of telephones only, therefore of phone tapping.) He replied: 'I never made telephone calls. I only ever talked to people by letters in the mail.'

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Doesn't it make you wonder why it is that the biggest protagonists for this law are the people who we are being asked to trust that it wont be abused once enacted; the prime minister, GCSB officialdom and other secret data collection agencies. And now they appear like a more and more isolated circle pushing through a deeply unpopular, undemocratic legislation.

It is has now boiled down to the age old "We're from the government, we're here to help, just trust us."

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Vote in it, then at least you will know that you maybe being spied on. It the moment its been happening for years and you don't know

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The truly scary thing is that either 1. our Prime Minister doesn't know what his proposed law does, or 2. he does know and doesn't care, or 3. he is prepared to misrepresent it so as to water down public opposition.

I'll let you chose your own personal favourite explanation.

My concern is that empowering GCSB is simply another extension of this Government's determination to get out of the IRB box and onto the field of play itself.

It is a principal of effective negotiation, and doing business successfully, which is what this Government enjoys most, to find out the facts. Some of the best studies on acquiring better negotiation skills ask the question 'where do you draw the line on finding out the facts?'

Is spying an acceptable strategy to find out the facts?

Again, I'll let you answer that for yourself and about this Government and its motivations.

But as you do so consider this....

The track record of this two term Government has been to be - the biggest borrower (of nominal dollars at least) in NZ's history, the ones who sidelined ECAN, introduced CERA, disbanded the RMA in Canterbury and now for the rest of NZ, cancelled the councils consent warrant & earlier suspended the Public Works Act rights in Canterbury, txted the party at party central for the RWC but forgot to organise the trains and the security and blamed mummy (Len) for the near riot when all the friends turned up, arrested Dotcom, persecuted Tame Iti, then settled Tuhoe, jumped into the Fonterra board room when someone cried botulism, and then just as quickly ran back outside to call an enquiry, traded its shares in MRP off the back of a market said to have gouged its cartel captive consumers to the extent of several $billions, came unstuck on that float when opposition parties said they could centralise the Manapouri overhang, jumped into the MRP price setting book build, filled the boots of the public ignoring the emerged change in risks and has floated a dog, jumped back into the electricity market and subsidised an MRP competitor to make Meridian's shares attractive enough to float soon, further condemning MRP's price, forgiven John Banks his mayoral sins, spied on Peter Dunne's outbox, sacked Aaron Gilmore for his learned behaviour, and now wants to liberate some of the Kiwisaver accounts early and much later annuitize others.

Rod Oram sums up much of this game time in his excellent column D24 today's Sunday Star Times.

My view, to continue and mix the metaphor a touch, is, if the Government wants to be on the park it should take off its suit, put on its shorts, and while its at it, hand back its whistle.

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I guess what NZers find particularly repugnant about what is about to become law is the concept that every letter could be steamed open retrospectively down at the Post office before it turns up in your personal mail.

This is the current interface between what is a crime in NZ and what is not

216BProhibition on use of interception devices
(1)Subject to subsections (2) to (5), every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.
(2)Subsection (1) does not apply where the person intercepting the private communication—
(a)is a party to that private communication; or
(b)does so pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under—
(i)the Search and Surveillance Act 2012; or
(iii)the New Zealand Security Intelligence Service Act 1969; or
(iiia)the Government Communications Security Bureau Act 2003; or
(v)the International Terrorism (Emergency Powers) Act 1987.

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Yes you are right that the government could do all sorts of bad things with the operative word on "could" and it is not "THE" Government it is Governments as we freely choose our Government every 3 years.

However they will also be able to get additional intelligence on those harming us - not just terrorists, but the drug dealers, the people peddling harmful porn - (i.e. child porn, rape etc.), fraud etc - and these are things that "ARE" happening.

So what is the balance? - no-one is talking about the balance! - they are simply talking up the worst possible situation that could possibly happen. e.g. multiple references to Hitler and Stalin, suggesting we watch movies like "The lives of others" and I suppose avoid watching series like "The Wire"

The question I have to ask myself is am I prepared to have my privacy looked into in a confidential way (a bit like fingerprints at a crime scene to isolate suspects) to assist in stopping people who are causing quite severe harm to quite a number New Zealanders right now.

Though the safe guards in this bill are perhaps not yet what I want, and I don't think they could be and still support the protection side of things properly, I think I would err on the side of giving up some confidential privacy if I had the choice between helping catch or helping to hide the few bad people in our midst.

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