Government expanding surveillance powers

Waihopai spy base

By Byron Clark, Fightback Christchurch member.

Public protests against the GCSB bill will take place around the country on July 27th.

[Auckland event] [Hamilton event] [Wellington event]

[Nelson event] [Waihopi Spybase event]

[Christchurch event] [Dunedin event]

The spectacle of Kim Dotcom going face to face with John Key to make a submission on the Government Communications Security Bureau [GCSB] and Related Legislation Amendment Bill received huge media attention, but little has been said on the content of the bill. In part that is because the bill actually contains very little.

In the years following the September 11, 2001 terrorist attacks on the United States, New Zealand passed a raft of laws with the supposed goal of combating terrorism. Legislation governing surveillance by the GCSB dates from that era. The present bill will amend the Government Communications Security Bureau Act 2003, removing the word ‘foreign’ from a number of places, and changing the definition of a foreign organization from “an unincorporated body of persons consisting exclusively of foreign organisations or foreign persons that carry on activities wholly outside New Zealand:” to “an unincorporated body of persons consisting principally of foreign organisations or foreign persons that carry on activities wholly outside New Zealand:”

The purpose of these changes appears to be giving the GCSB powers to spy on New Zealanders previously reserved for spying on foreigners. Typically domestic spying has been the role of the Security Intelligence Service (SIS)  or the police, though the GCSB has been involved in spying in 88 cases since 2003.

Other subtle changes are repealing the current definitions of the terms ‘computer system’ and ‘network’, replacing them with the catch-all term ‘information infrastructure’ defined as “electromagnetic emissions, communications systems and networks, information technology systems and networks, and any communications carried on, contained in, or relating to those emissions, systems, or networks”. This provides scope for data collection from the wider range of communications devices now available (smartphones for example).

One that that remains undefined is the phrase “national security”. What all this amounts to is a law that gives the GCSB scope to spy on anyone, inside or outside the country, in a wide range of communications so long as they are seen to pose a risk to the “national security” of New Zealand. Given that the law, even before the current amendment, explicitly introduces the idea of threats to “economic well being” it would be entirely possible to define planning industrial action, such as a strike, as justification for spying.

Its worth noting in this instance that state surveillance of unions is not a hypothetical. Back in 2008 it came to light that Unite was being spied on, not by the GCSB but by the police Special Investigation Group (SIG). In their submission on the amendment bill, the Council of Trade Unions (CTU) have pointed out that reasons for surveillance such as ‘preventing activities aimed at undermining values that underpin New Zealand society’ provides a scope “wide enough to capture nearly any activity or discussion with a political motive.”

That the bill will erode the right to privacy is almost a given, of greater concern is that there is little recourse when remaining privacy rights are stepped on. When questioned by Radio New Zealand following the revelation of British and American surveillance programmes by whistleblower Edward Snowden, Privacy Commissioner Marie Shroff said the commission does not have specific jurisdiction to monitor the GCSB. At that time she also stated it was not clear how the American programme PRISM might affect New Zealanders. It has since come to light, via Snowdens leaked documents, that the GCSB shared information with the American National Security Agency (NSA).

As with asset sales, Peter Dunne’s vote was required to pass the bill.

These concerns were raised not only in submissions made to the select committee, but by the Human Rights Commission (HRC) who employed its rarely used ability to issue a report directly to the Prime Minister. Chief commissioner David Rutherford to The New Zealand Herald  “The Commission is concerned that the proposed bills are wide-reaching without sufficient safeguards against abuse of power. There is inadequate oversight and inadequate provision for ensuring transparency and accountability”, John Key was scathing of the commission and erroneously described the report as a submission;

“I think the Human Rights Commission actually should take a step back and ask themselves the question why they failed to put a submission in on time. They are funded by the Government and they were the only people that couldn’t actually make the deadline…I actually don’t think it was a very good submission at all, and they need to pull their socks up. If they’re going to continue to be a government-funded organisation they should meet the deadlines like everyone else did.”

Despite Key’s dismissal of the HRC, and other dissenting views such as the Law Society, some small changes to the bill have been made to win the necessary vote of Peter Dunne. These changes will require the GCSB to make an annual public declaration about the number of warrants and access authorisations it gets each year, and the Inspector-General of Intelligence and Security whenever time it gets permission to spy on a New Zealander. The agency will also need to declare the number of times it helps the Police, the SIS or Defence Force with its specialised interception equipment.

Further powers will require an act of parliament, rather than Cabinet just ticking it off via regulation and there will be an independent review of the agency in 2015. Another change was earlier made to secure the vote of John Banks, the requirement for the GCSB to have regard to the Bill of Rights Act, which protects against unreasonable search and surveillance.

These changes however haven’t make the bill palatable to advocates for the right to privacy- or even the other parties in parliament, the Green Party called changes “cosmetic” and Labour promised to revisit the legislation governing the GCSB in two years’ time. The bill will most likely now pass by just one vote.

Who stands to lose from increased GCSB powers? arguably, just about everyone. The British Tempora programme shows that the technology exists to save the entire populations communications data, and then mine that data for specific keywords. Even without such an eye on peoples information, the knowledge that its legally possible has an effect. As the online civil liberties group Tech Liberty noted in their submission “Knowing that everything is being watched tends to make dissent more timid, limiting our freedom of expression and the effective working of our democracy.”

The law will be used against activists, just as the Terrorism Suppression Act was in 2007 when people around the country involved in the Tino Rangatiratanga movement were arrested by armed police (eventually almost all charges were dropped, with only some unlicensed firearms charges sticking). Part of the reason activists are targeted may be that dissent can indeed be a threat to the political and economic status quo, but another reason is just the fact that actual terrorism is incredibly rare- there are practically no terrorists for the GCSB to catch.

The New Zealand Council for Civil Liberties put it this way in their submission; “The reality is that all of us will die some time – and almost certainly none by terrorist activity…The focus [of the bill] is on the   1% possibility rather than the 99% probability that no such event will occur.”

Despite this reality, where you are more likely to die in your workplace than in a terrorist attack, funding for the GCSB increased by 174% over the last decade, while the SIS had its funding increased by 250% over the same period of time. The state is giving intelligence agencies larger and larger hammers, we shouldn’t be surprised if every dissenting political group is starting to look to them like a nail.