I confess: The GCSB bill has me going back and forth. So after considering the politics played by the PM this week I lay out my main qualms about the bill and seek your advice...

We've seen the best and worst of John Key this past week, all muddled up together, as he has tried to work his way through public debate on the GCSB reform bill. The Prime Minister has been patronising and politically astute, a classy communicator and a below-the-belt jiber.

On the weekend at the (underwhelming) National Party conference, he took a question from Campbell Live's Rebecca Wright about whether New Zealanders care about the GCSB bill. John Key said they care more about snapper.

National's political opponents howled that he was patronising New Zealanders and trivialising a vital issue of national security and privacy. Tosh. Key was patronising a reporter who was raining on his conference parade, but he was utterly correct. And the fact Key gets that New Zealanders care more about snapper than spying is a big part of why he's been wiping the floor with his opponents for so long.

Fishing is something that more than a million New Zealanders will do some time in the next six months; being spied on by the GCSB is something that may happen some day, almost certainly to someone else, and in fact has only happened 88 times in the past decade. Of course New Zealanders care more about something that actually affects their lives rather than a hypothetical.

That's not to say they shouldn't care more about the GCSB bill or to say it doesn't matter. But the PM was undisputedly right.

Key's problem was not what he said, but how he said it. The condescending tone looked dismissive and revealed a side of Key he usually keeps behind closed doors. But here's another reason Key has been such a dominant political force for two terms – he sucked it up, went on Campbell Live and delivered a clear defence of the GCSB reform.

Key doesn't let a problem fester, even a small one like that. He cleans up his own mess.

That's not to say Key is beyond reproach in the handling of this bill. Sure, he has tried to get it passed quickly and to minimise public scrutiny. (While I have all sorts of questions about how they're doing it, I applaud journalists such as the Campbell Live team for at least kicking against that and trying to engage the public in a crucial issue).

What's more his comments about New Zealanders traveling to Yemen for al-Qaeda training was either a serious slip of the tongue or political cynicism of the worst kind. If these people pose a credible threat, then his slip just alerted them to our surveillance of them and will drive them further underground. That's surely life-threatening.

If, more likely, it was a political ploy, then it is a betrayal of the confidential intelligence he has access to as Prime Minister. No leader who drops alarming comments like that knowing that he will never be able to back them up with actual intelligence gets to climb on his high horse and accuse John Campbell of fear-mongering.

On top of that, his slander of Rodney Harrison as Ahmed Zaoui's lawyer – implying that defending an innocent and wrongfully imprisoned man was anything less than good and even heroic – was appalling.

As for the bill itself, I agree with Key that the legislation around our spy agencies needs clarification. I agree that the suggestion we will all be spied on as a result of this reform is ridiculous. Yet I also realise around half a dozen agencies have the power to spy on me and other New Zealanders, and I accept some of that is necessary. I see some virtue in spy agencies being able to share resources from a purely practical perspective (but am unsure whether this bill just allows other agencies to share the GCSB's flash kit, or goes further). I agree that he cannot be expected to say which bits of technology these agencies using. I accept that only a few New Zealanders are likely to ever be affected by this law change.

But I still have qualms about the bill. While I'm no expert compared to some – so feel free to help me understand better in the comments – three stand out.

The first and foremost is one of principle over pragmatism. I'm a supporter of the power of the state to intervene in people's lives for the public good – from lines of the road to keep drivers from crashing into each other right up to CYFS workers taking new-born babes from mothers with a clear history of abuse and neglect.

Because it's vital that the state have such powers, it is all the more vital that it does not over-reach and claim powers that aren't needed. If it does, we risk a 'baby and bathwater' scenario where vital powers are lost as people lose faith in ones that aren't.

Along with the Law Society, I argue that the GCSB's powers should only be extended if there is an increased threat to be met. Some will say they're not being extended, they're just being allowed to do legally what they've being doing for years anyway. That still amounts to an extension – the alternative would be to enforce section 14 and say to the GCSB, "no spying on New Zealanders, that wasn't what you were created for".

Either way, there should be a very good reason to change the law to confirm this spying is hunky dory. Is there a clear and present danger to justify it? If so let us debate the balance of privacy v security. But I don't see the threat.

Is it needed to keep us safe from Mark Taylor, a couple of people smugglers and Keith Locke (more on him later)? Are the current systems failing us? Is our security so at risk as to warrant the sacrifice in privacy?

Hang on, you might say, a few paragraphs ago you were saying that hardly any New Zealanders will be affected... Now you're talking about all of us sacrificing priavacy for security? Well, this is my point. The practical implications are relatively minor, but the principled ones are not.

Allowing the state to invade the privacy of anyone going about their lawful business is something that should concern us all. We allow it up to a point; moving that point should always be done reluctantly and only when the need is urgent.

Key has urged us not to worry about the bill because the GCSB – in its legal fog of the past decade – only helped others spy on only 88 people, or one in every half-million New Zealanders. But again, it's a matter of principle, not numbers.

Were those 88 a genuine threat to New Zealand? Well, no arrests resulted, so at first blush, no. That doesn't mean they weren't worthy of some attention being paid, but it raises doubts.

Furthermore, it worries me when I read words such as this, from former MP Keith Locke.

"Journalists have asked if I was one of the 85 New Zealand citizens or residents who were spied upon under SIS warrants, which the Kitteridge report says were also spied on (illegally) by the Government Communications Security Bureau. That illegal spying ran from April 2003 to September 2012.

My first reaction was that I probably wasn’t one of those 85 people. Then I checked my SIS file (which I obtained from the agency in late 2008) and found that there were two SIS reports, dated 10 September 2003 and 24 September 2003, where the SIS was monitoring preparations for my trip to Sri Lanka in October 2003, a trip that was not at that stage public knowledge...

...It was not clear from the two SIS reports whether the SIS (and perhaps the GCSB) gained their information from spying on my communications, or those of NZ Tamils assisting me with the trip, or whether it was spying on both parties. Maybe the SIS interception warrants targeted the local Tamils helping me, and in the process they happened to intercept communications between us."

Was a sitting MP spied upon illegally? Or, more likely, were his communications caught up in spying on Tamils partaking in legal activism? Was it just the SIS or was the GCSB assisting? Was there a sufficient threat to warrant the monitoring of this trip by an elected representative?

You see, the numbers may be small, but the implications rather larger.

My second concern is oversight. It is good that two people – the PM and the Commissioner of Security Warrants, a former judge – will be required to sign warrants when the GCSB is asked for its help in domestic operations. (Actually, were warrants required for the 88? Can anyone answer that for me?). But I'd like to know how often such warrants are refused? Are they the safeguard they're presented as? Or a rubber-stamp? Is someone a little more sceptical than the PM and a PM's appointment required to hold the agencies to account?

And finally, I'm wary of the cultures in the organisations being given more power. As I've said, any extension of power should always be the smallest extention possible. One of the reasons why is that agencies over-reach and take a mile when given a legal inch. Consider the agencies we're empowering:

  • The GCSB, which clearly over-reached when it arranged the raid on Kim Dotcom.
  • The police were clearly caught up in post-9/11 hysteria when they raided the Ureweras rather than having a quiet word with Tame Iti and his mates.
  • The SIS have, more than just keeping files, been at least indirectly spying on the likes of Keith Locke, who's as much threat to New Zealand as my toaster. 
  • The NZDF has been operating for years under a manual which lists journalists and legal pressure groups as "subversion" threats.

Have these agencies earnt our trust? Do we make it easier for them to spy on New Zealanders when they seem to take their responsibilities so lightly? That worries me.

I know there are other issues about how much information is inadvertently captured and stored anyway, whether it's shared with foreign partners and the like – you can put me right on those in the comments, because I've gone on long enough.

As it stands, I'd be interested to know if you think I should be more worried about the bill, or whether the qualms I do have are nothing to fret over.

Comments (40)

by Thomas Beagle on August 16, 2013
Thomas Beagle

"I agree that the suggestion we will all be spied on as a result of this reform is ridiculous."

I'm not sure why this is so ridiculous. New Zealand's closest intelligence partners, the UK and USA, are doing exactly that in their own countries. Do you think that the GCSB isn't aware of this? 

If we don't want the GCSB to do this, let's not give them the powers to do so in the GCSB Bill. Even better, let's put some provisions in there that forbid them to engage in any form of mass surveillance against New Zealanders.

 

by Tim Watkin on August 16, 2013
Tim Watkin

Fair enough, Thomas. You'll be clearer than me what Snowden has claimed and what Obama has denied, but my understanding is that in the US and UK there has been mass surveillance – metadata of millions of people. (Has that surveillance all been warranted?). And we can reasonably assume NZ has helped in that. So fair point.

Key argued this week it would take tens of thousands of staff and something like six billion dollars to have the GCSB doing that here. In other words, saying it was a ridiculous notion. Your response? 

Also, has Key never simply said the GCSB wouldn't do that here? And are you saying you could have a bill allowing the GCSB some domestic powers, but denying them powers of "mass surveillance"?

by Lee Churchman on August 16, 2013
Lee Churchman

I agree that the suggestion we will all be spied on as a result of this reform is ridiculous.

Well, as the guy said above, this is already happening with our intelligence partners, who use much of the same spying apparatus as we do. We have at least some access to the information our allies in UKUSA hoover up, but who knows, because it's a secret.

I don't think anyone disagrees that law enforcement (in the broadest sense) should be able to spy on people with probable cause. It's a big conceptual leap from admitting that to agreeing to any form of secret police on the scale of the SIS/GCSB. The very existence of a secret police should be anathema to an open society. I would be happier with the GCSB if they were forced to leave the UKUSA alliance for good – otherwise, it's reasonable to supposed that they are compromised by the wrongdoings of their sister agencies. Of course, we don't know, and they ask us to trust them. The Church Committee put that to rest for most thinking people. 

I'm quite willing to take the risk of terrorist attacks if it means abolishing the SIS and GCSB, because I'd bet that there really isn't any risk to New Zealand, and that, even if there were, the SIS/GCSB are so incompetent that they wouldn't know about it. Indeed, the only terrorist attacks New Zealand has suffered (Rainbow Warrior and the Trades Hall bombing) passed them by. The regular police, on the other hand, are quite competent. 

But that's a choice we're never given. Instead we are given vague FUD and tales of boogeymen by John Key. I think they're full of it.

Adam Curtis just published a good demolition of these clowns here (strongly recommended):

http://www.bbc.co.uk/blogs/adamcurtis/posts/BUGGER

 

by Lee Churchman on August 16, 2013
Lee Churchman

Note that our security services spent years persecuting a falafel vendor.

by Tim Watkin on August 16, 2013
Tim Watkin

Sticking to facts, Lee, why do you call the SIS and GCSB 'secret police'? Isn't that rather unhelpful hyperbole? No-one's getting pulled out of their home late at night. We know all about the one person who did get raided and held illegally because it's been in the media for months. So not that secret!

You make a good point about them missing the actual terror we've suffered, but to pull out of alliances with the US, UK and Australia would have significant consequences.

by Graeme Edgeler on August 16, 2013
Graeme Edgeler

Actually, were warrants required for the 88? Can anyone answer that for me?

My understanding is that there were. Either interception warrants (issued by a High Court Judge) or surveillance warrants (issued by a District or High Court Judge post-Search & Surveillance Act) in respect of the 3(?) instances of police assistance, or SIS interception warrants (i.e. signed by the PM & CSW), in respect of SIS assistance.

by Thomas Beagle on August 16, 2013
Thomas Beagle

The warrantedness or not of the surveillance in the UK and US is beside the point. The problem is not as simple as rogue agencies exceeding their powers, I believe that mass surveillance has some very real problems for civil liberties. I've expanded on some of those views here: http://techliberty.org.nz/speech-to-the-auckland-public-meeting-against-the-gcsb-bill/

As for Key's line about needing an army of people to look at emails, try comparing it to this statement: "We could never have a tax system that taxed everyone and every transaction, we'd need tens of thousands of clerks with adding machines to keep up!" It's just nonsensical.

Mass surveillance has been enabled by the rapid pace of development in IT. We can now store huge amounts of data and process it very quickly.

Here's an example to help with the scale of modern IT systems. I have a 4TB drive in my cupboard, it can store (roughly) 1MB for every person in the country. 1MB would be enough to store the metadata for 1000 emails. That drive cost me $250. 

Obviously there's a bit more to it than that but in terms of cost we're talking about a line item for some millions in the GCSB budget, not $6 billion.

As for Key saying we wouldn't do that here. I'm not sure if he has said that, but the sad reality is that governments typically lie about what their spy agencies do (or the politicians just aren't aware.) If he says we're not going to do that, let's not pass a law that gives them exactly the powers they would need to do it.

 

by Tim Watkin on August 16, 2013
Tim Watkin

Thanks Graeme. On that basis has anyone asked how many warrants were turned down in that period? Seems crucial to judge how effective warrants are as a limitation. Because a big part of the justification for this bill, it seems to me, is that the GCSB assistance will all be warranted, and therefore not subject to whim and unnecessary intrusion.

@Thomas – except that the IRD does have thousands of staff and a huge budget to do that, many more clerks than the spy agencies have analysts, right?

On mass surveillance – of course you're right technology has made it cheap and easy to suck up and store heaps of data. That raises the question as to whether the SIS could just do it to NZers anyway. One of the arguments for the bill has been that it just allows the GCSB to share its technology with others and therefore save money. But if it's cheap and easy, why doesn't the SIS, police and NZDF get their own cheap kit and do it under existing laws?

On the other hand, let me go out on a limb and aks you the key question – why does it matter to our civil liberties if our email headlines and the phone numbers we've called are getting collated? Is it fair to assume they'd only be scanned for keywords or phone numbers of known threats etc (and otherwise ignored?)? And if so, do we/should we care?

I look forward to reading your speech, ta.

by Thomas Beagle on August 16, 2013
Thomas Beagle

My comparison to the IRD wasn't a straight like for like (GCSB doesn't have to answer queries for a start!), just pointing out that we can implement large systems that cover everyone in the country. As I said, millions, not billions.

The Police, SIS and NZDF don't have the necessary legal powers to collect that information. In the case of the Police and SIS (I don't know about the NZDF), they can only get targeted warrants, not the much wider access authorisations in the GCSB Bill.

Why does it matter? Maybe you should ask Peter Dunne - he was forced to resign because of the information revealed in his email metadata.

My speech has a lot more about why the idea that "If you've got nothing to hide, you've got nothing to fear" isn't true so I won't repeat it here.

But I feel you're also missing a key point of scale here. The point of mass surveillance isn't to get *your* information to make conclusions about you, it's to get *everyone's* information to make conclusions about whatever targets they choose.

by Nick Gibbs on August 16, 2013
Nick Gibbs

I think Campbell stummbled because he went into to agressively (trying to justify his tour of the nation campaign) but wasn't well enough prepared.He needed to remind Key that of those 88 people spied on - one was Kim Dotcom who was armed with nothing but an inflatible tank and a history of irritating Hollywood. How did he end up on the list? And is it common for those who irritate the powerful to end up being GCSB'd? How thorough is the PM's oversight of this agency or does his pragmatic streak extend to making deals with others privacy?

by Lee Churchman on August 16, 2013
Lee Churchman

Sticking to facts, Lee, why do you call the SIS and GCSB 'secret police'? Isn't that rather unhelpful hyperbole?

Mea culpa. I plead guilty of using the word in the wrong sense. I just meant a part of the security apparatus that operates in secret. I see that it has a different meaning in the dictionary. I'm pretty sure you can get yourself in big trouble by outing members of the SIS, or even trying to follow them if you catch them following you – I meant secret in that sense.

You make a good point about them missing the actual terror we've suffered, but to pull out of alliances with the US, UK and Australia would have significant consequences.

Well, on the first count, this is to me (as Curtis argues) a function of the secrecy. Openness has the often overlooked virtue of deterring incompetence. Not sure if the SIS was involved in the Ruatoki thing, but that is an obvious case of people making decisions whilst comfortably insulated from reality.

 As for the second. I think that is really the crux of the matter. If it's true (and it probably is true) that NZ can't afford to leave that alliance, then we're stuck sharing an intelligence system with a couple of governments that have become very wobbly on civil liberties and human rights. 

It would be nice if this was admitted in public, but instead we have to put up with wild tales of Yemeni guerillas and falafel cart sleeper cells.

by Lee Churchman on August 16, 2013
Lee Churchman

except that the IRD does have thousands of staff and a huge budget to do that, many more clerks than the spy agencies have analysts, right?

Part of the reason for that is because citizens are permitted to contest the information that the IRD holds on them and the actions it takes against them. Because of this the IRD has to employ lots of people to make sure it gets everything right – otherwise scandals would inevitably make their way into the media. 

The IRD would need far fewer staff if its job were merely to take money from people at will and with no ability for citizens to contest its actions or even know what information it has about them. 

by william blake on August 16, 2013
william blake

I don't care if the GCSB spy on us illegally, after all they are spies and its what we pay them to do, but to legislate and legitimise monitoring of New Zealanders says the government trusts no one, we are all capable of being guilty and if we say the 'wrong' thing we may well get further scrutiny; all overtly. This is power and controll, the kind of behaviour displayed by fearful bullies and something we should stand up to.

by Richard on August 16, 2013
Richard

On the other hand, let me go out on a limb and aks you the key question – why does it matter to our civil liberties if our email headlines and the phone numbers we've called are getting collated? Is it fair to assume they'd only be scanned for keywords or phone numbers of known threats etc (and otherwise ignored?)? And if so, do we/should we care?

Here are some reasons we should care:

a) Who defines "known threats"? Is being a member of Greenpeace a threat? Is being a Communist Party member a known threat? Is illegally downloading a film torrent a known threat? Is being Keith Locke a known threat? Is being an opposition MP a known threat? Is being a journalist who breaks a story about Key's mistress a known threat? Is being Key's mistress a known threat? Is commenting on Pundit a threat? What is a keyword and what is not will be a secret.

b) What happens when you trigger a keyword in your emails or phone numbers? The information will be used in secret to make decisions about you. It will be accumulated with other information and secret inferences and secret conclusions will be drawn. Maybe the end result will be something "minor", such as raising a flag that secretly rejects you from consideration for certain jobs or contracts. Maybe it will be used to secretly deny you parole? Maybe it will be used to secretly deny you entry to a foregin country? Maybe it will be used to deny you a vote? The least insidious (and least likely) thing the information could be used for is to send goons around to break down your door. At least if your door is being kicked in, you will know that there is an issue.

c) What happens when the information held about you is wrong? The fact that there is derogatory information about you will be kept in a secret file. It will be used against you, and you will have no chance to explain or correct. You won’t even know that the derogatory information exists, or if you do it will be much too late.

d) Fear. If the GCSB is known/suspected to be monitoring communications for unknown keywords, the use of which has unknown consequences, then people will be afraid to discuss controversial issues, especially, controversial issues over which the government of the day has expressed an opinion. Such a fearful population is not a democracy.

 

by Tim Watkin on August 16, 2013
Tim Watkin

William, we already have several agencies that spy on us legally, have for a very long time. This bill adds another one to that group, but it doesn't move us from no spying on New Zealanders to spying on New Zealanders.

 

@Thomas, I'm at home with the flu so you might have to spell that point out for me and my thick head. The GCSB type of warrants will be broader – how?

And the point about mass surveillance, let me think this through out loud... So the SIS and others don't have the technology to suck up mass emails, but the GCSB does because it's been doing it for Echelon. You fear the GCSB will be just as indiscriminate on New Zealanders.

Key has said repeatedly this bill won't allow wholesale spying on New Zealanders or the trawling of emails. Is it fair to say you don't think the wording of the bill offers that certainty?

The question sympathetic to Key's stance is to say 'why would they trawl on a vast scale here?'. Wouldn't they want to be more targeted? (Or do you say that practice by partners overseas shows that these agencies see value in collecting mass data and then somehow trying to see links?)

Key also said that the only time they will look at metadata or content is when warranted to do so. And today he went further, pointing out that he can impose any conditions he wants on those warrants and, the Herald reported, "when he issued warrants under the cyber-security function in the future, he did not intend the GCSB to access the content of New Zealanders' communications, including email, in the first instance".

Does that offer any reassurance? And could a GCSB warrant, rather than just covering a certain group or case, really allow mass surveillance in one sweep? Because just how many warrants they issue will be public info, won't it? So if they seek thousands of warrants, it'd be a dead giveaway...

I hope I'm asking plain, useful questions for the readers and really appreciate this conversation. Of course Thomas knows this stuff back to front, but anyone else with knowledge is welcome to join in.

 

by Tim Watkin on August 16, 2013
Tim Watkin

Lee, I agree we seem to stuck with some allies who seem to be over-reaching and I don't want to follow that lead. But in saying there won't be wholesale spying on New Zealanders, isn't the PM guaranteeing the GCSb won't follow the NSA's behaviour re Verizon and the rest? (To answer my own question, I guess the best way to guarantee that is to put it in law).

Re secrecy, heck I'm a journalist. I couldn't agree more about transparency... except... they're spies. The whole nature of the thing is secret, and as even Sir Geoffrey Palmer has said before those spies do some good service. His example was showing up other countries trying to cheat on fisheries deals, from memory. If we accept some spying, then we accept a certain amount of trust (with adequate oversight so the trust isn't in the hands of too few!).

I take your point re the IRD, but my point is that if the GCSB just won't have the resources to do much more than just search keywords and, I don't know, phone numbers associated with some known threat (ie they're not going to really look at our emails. But Thomas says that's missing the point, so will see what he says about that. I just fear that for some New Zealanders their fear of the bill is that 'I don't want John Key or some spy reading my emails'. And that's not really the issue, is it?).

 

 

by william blake on August 16, 2013
william blake

Tim you seem to be missing my point, of course the police, SIS etc use covert operations to spy on citizens but specifically targeted and warranted, not the 'echelon' or 'prism' type of wholesale electronic surveillance that the GCSB will be enabled to do through the bill. Listening in on all electronic traffic; phone, cell, computer, searching for key words and encryption (why use encryption if you aren't a terrorist?) and passing on their findings to front line staff to action.

by Tim Watkin on August 16, 2013
Tim Watkin

Richard, thanks those are some good points. I agree that a lot comes down to how and where these agencies perceive a threat; but again we place that trust in a series of agencies already and they've got an uncanny knack of showing their flaws.

I'd argue, for a start, that Michael Fay has posed a bigger threat to New Zealand's economic interests than any Communist Party member in my lifetime!

But, apart from Lee perhaps (!), no-one's really saying let's shut down all our spy agencies. So, let me keep playing devil's advocate here, if there is a reason to check emails that's good enough for a warrant, perhaps we need to give them some licence? Or we might as well shut the whole shop and chance it.

And getting to mistresses and very public and legal processes such as parole is over the top, isn't it?

 

by Tim Watkin on August 16, 2013
Tim Watkin

Oh, and Richard I don't think this one bill risks creating a fearful population who will think twice about emailing or phoning. Again, that argument seems so extreme that you risk people dismissing your other points.

And as for C, exactly how secret will any files be? Graeme, this may be one for you... People got access to their SIS files, so how will these work? What's the difference?

by Richard on August 16, 2013
Richard

they've got an uncanny knack of showing their flaws.

After the fact though. Potentially, only after innocent people have been shot in the head ( http://en.wikipedia.org/wiki/Death_of_Jean_Charles_de_Menezes ) on the basis of false intelligence. And, of course, there is an unknown number of problems that we don't know about, precisely because these organisations are secret.

And getting to mistresses and very public and legal processes such as parole is over the top, isn't it?

Ask Ahmed Zaoui. His public application for refugee status was interupted and he was imprisoned on the basis of secret, incorrect evidence provided by the "intelligence community".

Why exactly do you believe that the John Key who has presided over Dunne/Vance, and the Tea-Cup saga, won't use try to use the GCSB for political ends, if the need arises and he thinks he can get away with it? Even if you believe Key, why do believe that none of his successors will do this?  

And as for C, exactly how secret will any files be?

Ask the 88 people arguably illegally spied on by the GCSB. Have they been allowed access to their files? If Dotcom had not occured would we know about the existence of these 88 files?

by stuart munro on August 17, 2013
stuart munro

I am not on the whole a fan of personality politics, but in a sphere where protagonists are secretive if not dishonest, sometimes they are the best indicators we have. People tend to stick to their style of crime. Clinton's much publicised encounters with Monica Lewinski were not his first extra-marital dalliance. Bill English's egregious theft of Mighty River Power is part of a pattern of criminal conduct that includes disposing of SCF and Solid Energy. And John Key's secret vice turns out to be that he is a spook fan.

No doubt there are extenuating circumstances - some childhood trauma involving not getting the decoder ring from the cornflakes, coded playground taunting, or malicious graffitti in invisible ink - it's really not important.

The thing is, the PM is the minister in charge of the GCSB because they are supposed to be above infantile obsessions with covert power. This is not the case with Key, who uses the GCSB with the frequency (and subtlety) of a fellow whose only tool is a hammer. The purpose of the agency is not to prop up the fragile pretensions of a politician with no talent for delivering economic growth however. Their role is the quiet monitoring of those few foreign threats which might bear explosive fruit somewhere down the track.

Key has made a complete bollocks of running the GCSB. He should hand it off to Sir Jerry while a long slow multipartisan inquiry designs a process to keep idiots like Key the hell away from it. It is not to be used for Nixonian intrigues, and the attempted extension of its powers is odious in the extreme.

Clark wasn't much cop, but she knew better than to soil her hands with this crap.

by william blake on August 17, 2013
william blake
Zersetzung
by Tim Watkin on August 17, 2013
Tim Watkin

@William, this is why I'm tying to be really clear where the lines are. You say the GCSB will be able to listen in on all electronic traffic. Are you sure? Key says no and they will have to be warranted, doesn't he?

@Richard, Zaoui is a good example of agency failure. But other parts of the system kicked in to make sure it came good in the end. What happened to Zaoui happened under the existing laws and doesn't particuarly help us decide whether including the GCSB in domestic spying is useful or not. All it does is remind us that stronger oversight is needed because the people running these agencies make mistakes, have blind-spots or make political decisions.

by Richard Clark on August 17, 2013
Richard Clark

An excellent dialogue. One that challenges my beliefs and has me looking deeper into my self as to what is too much Government Interference or simply Bureacratic bungling. It's great to have Pundit filling the media void. Thanx.

by Lee Churchman on August 17, 2013
Lee Churchman

Sir Geoffrey Palmer has said before those spies do some good service. His example was showing up other countries trying to cheat on fisheries deals, from memory. If we accept some spying, then we accept a certain amount of trust (with adequate oversight so the trust isn't in the hands of too few!).

@Tim Well the Snowden revelations and those post Watergate have poisoned trust for me. If it was a choice between no state spying and having to put up with slight disadvantages in things like fishing deals, I'd choose no large-scale state spying. I don't want the government to have that power because I don't think anyone should have it. If it means that crimes are a bit harder to prosecute, then that's the price of a free society. The government's argument is essentially a cost benefit analysis where they don't count the costs. What they need to do is get their sticky beaks out of people's private communications.

And on the subject of what they can do: they can go a lot further than searching for keywords. See this interesting post:

http://kieranhealy.org/blog/archives/2013/06/09/using-metadata-to-find-p...

by Rab McDowell on August 17, 2013
Rab McDowell

OK, so what is an appropriate level of monitoring?

I'd like to say none, but I very aware that agencies such as IRD, health and welfare already collect data on me and , in some situations, share it. So none is already off the table. I also think that, if I do have to pay taxes, then I am entitled to know that my money is spent appropriatley and by those who are entitled to receive it.

What is appropriate to leave on? Is the GSCB bill a step too far or is it, in fact, better than where we are now where "illegal" monitoring has been occurring?

by william blake on August 17, 2013
william blake

On reflection I wonder if Key really does know his fishy constituency, perhaps National party voters think that the modifications to the GCSB bill won't affect themselves, these powers are to be used against threats to the conservative status quo. I'm not sure if this tightening of security is an inevitable consequence of the liberal democracy we have enjoyed in NZ since the 84 Labour government; but perhaps the visible poverty we now have in our country is scaring the slightly better off and these are the reassuring noises they need to assuage their fears.

also FYI

http://www.sovereignman.com/expat/uncle-sam-admits-monitoring-you-for-th...

by Bart Ludbrook on August 17, 2013
Bart Ludbrook

My primary reservation regarding this bill is your second point regarding oversight. 

My understanding is that the PM and the Commisioner of Warrants can issue a warrant for the GCSB to undertake activites under the heading of 'Cybersecurity'.

This is at odds with how I imagine warrants are usually obtained - through the courts.

by Tim Watkin on August 17, 2013
Tim Watkin

@Richard, really appreciate that. It's helping me as well.

Rab, thanks for that, great point. We set these agencies apart as "spies" – and that's for a reason; they have the right to avoid transparency that others don't and their own laws. But we give up all sorts of privacy day in, day out. Other agencies have information about us that we don't necessarily know they have and which could be used to make decisions that aren't in our favour. So where's the line?

I just don't know, but it's why I wanted to talk about it on this thread.

I've just watched a Panorama report on the Boston bombings – on one hand for all their surveillance, US authorities missed the threat posed by those brothers. The Russians warned them Tamerlan Tsarnaev had travelled to Chechnya and was considered a threat; he was interviewed and nothing found. He was implicated in some murders in 2011, but again investigations were held and dropped. Friends and fellow worshippers saw no danger in either of them; they weren't obvious jihadists.

So is the intrusion worth it? Well, it's no doubt that the surveillance society helped identify them as the bombers in just a few short days. And the report spoke of 40 other attempted bombings in the US thwarted since 9/11 (as well as others that slipped through the net and failed only due to poor planning or execution).

I come back to the point in my piece that, especially in a country such as New Zealand, we should minimise state surveillance wherever possible. The debate is where that minimum lies.

by Tim Watkin on August 17, 2013
Tim Watkin

@Bart. Well, my guess is that the Commissioner, as a former senior judge, is effectively 'the courts'. Open court is not the place for secret plans. I wonder whether a third, more independent person should be involved.

Going by Anne Salmond's letter and Rodney Harrison's opinion piece in the Herald today, I take it that Key's assurances of no wholesale spying remain insufficient. Frankly, Harrison's piece is confusing as hell, but I take it to mean:

The "private communcations" (including metadata) of individual New Zealanders can't be spied on by the GCSB if the agency is spying under an "interception warrant". However if the GCSB instead has an "access authorisation" (a new and different kind of warrant), those limits don't apply. And the restriction on accessing New Zealanders' "private communication" is limited only to when it is doing its cyber-security work (one of three functions the GCSB has).

Another intellgiance gathering function it has is gathering of intelligence about "information infrastructures" (not sure what that means), and Harrison seems to say no such restrictions against accessing private communication applies there.

Is that summary correct?

Perhaps the simplest point to understand as to whether the bill amounts to "wholesale spying" or not is regarding the warrants. Harrison writes:

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.

That sounds like the GCSB could get a warrant to intercept communications, say, between all greengrocers communicating with anyone in Finland. Can it be that broad?

And how does that square with the inability to look at New Zealanders' "private communications"? Anyone know? Would Peter Dunne, say, really be happy with that breadth of warrant?

 

by Ross on August 18, 2013
Ross

And today he went further, pointing out that he can impose any conditions he wants on those warrants and, the Herald reported, "when he issued warrants under the cyber-security function in the future, he did not intend the GCSB to access the content of New Zealanders' communications, including email, in the first instance".

Except he said the complete opposite on Campbell Live earlier in the week. So which is true - what he told Campbell Live or what he told the Herald?

by Richard on August 18, 2013
Richard

That sounds like the GCSB could get a warrant to intercept communications, say, between all greengrocers communicating with anyone in Finland. Can it be that broad?

In the absence of rules that say it cannot be that broad, yes, of course it can be. Remember we are talking about an organisation that has already been imagining that there is a loophole in the parts of its existing legislation that clearly prevent it from spying on New Zealanders. That is (nominally) why we are here in the first place. The GCSB has plenty of form for interpreting its legislation as broadly, and permissively as is possible. And it is strongly connected to its overseas equivalents, who as we now know, "creatively" read their own legislation to find loopholes for such broad and permissive interpretations. You would have to be desperately naïve to think the GCSB will suddenly get more conservative in its legal interpretations when it is given a much more permissive legal framework.

The fact that Key (obviously acting under the advice of the GCSB and others) is refusing to narrow such rules means that they do intend to apply for very broad warrants. Even if they don't specifically have a warrant in mind, now, they certainly want the freedom to think up one in the future.

There is a reasonable risk that such broad warrants will eventually be things like: "All known activist members of Greenpeace". As Greenpeace, for example, often undertakes illegal protest actions. Others might be "Downloaders of torrents", as this likely means that you are breaching copyright law. Or perhaps, "Users of Tor", as this likely means that you think you have "something to hide".

 

by Graeme Edgeler on August 18, 2013
Graeme Edgeler

exactly how secret will any files be? Graeme, this may be one for you... People got access to their SIS files, so how will these work?

The 88 people involved were being spied on by Police or the NZSIS with the assistance of the GCSB. The NZSIS/Police had warrants and was spying on NZers, but needed technical assistance.

The way Sir Bruce Ferguson described the assistance being provided indicated essentially that a GCSB employee was seconded to whichever agency needed them; Ferguson stated he never saw the results.

Given these were NZSIS (or police) operations, the information will be on NZSIS (or police) files.

by Richard on August 18, 2013
Richard

Given these were NZSIS (or police) operations, the information will be on NZSIS (or police) files.

But the GCSB isn't saying who the 88 people are, and there is no reason to suppose that they will say who any future NZers they spy on are.

So, one is merely left to infer that some of the information in a police/SIS file came from the GCSB. But there is no guarrantee that what is in a police/SIS file will be explicitly flagged as to it's source. There is also no guarrantee that the corresponding police/SIS file mirrors exactly the GCSB file, if such a thing exists, which we don't know.

by Tobias Barkley on August 19, 2013
Tobias Barkley

It seems generally agreed that most people don't care about this issue (and you say John Key is politically astute in that regard).

This may be true of the reasonably well off with mortgages and fishing boats, but in the sector of the population I'm from, paranoia about spying is quite strong and has been around for a long time. This sector is generally quite poor and religious.

Generally I'm dubious whenever someone says this is what NZ thinks because it almost never represents any sector of NZ I know. (Admittedly, I don't know many accountants with mortgages and a boat.) I am equally dubious of simplistic dualism that if middle NZ is not particularly interested then it must be a beltway issue. Many particular issues that are of interest to politicos are of even more interest to other segments of the population.

by Ross on August 19, 2013
Ross

I am equally dubious of simplistic dualism that if middle NZ is not particularly interested then it must be a beltway issue.

I tend to agree.

Relatedly, I see John Key walked out of a press conference today after interrupting a reporter who was in the process of asking a question. The reporter fired back that he (Key) had also interrupted John Campbell. At that point, Key took off. My good, I didn't realise we had a PM who was so sensitive. For a supposedly non-issue, it sure is getting under his skin.

by jefferey on August 19, 2013
jefferey

This bill allows far too much power and therefore the possibility for corruption, by a select few, operating in secret, supposedly in our interests. Such people, I presume have no personal or political agendas of their own to push?
Yes, we need spies but not with this much power.As the game of spying involves some rather nefarious habits; larceny, deciet, blackmail...., can we be assured that those with access to this info, are those we trust? Do we even know who they are or that they have already gained so much access to our privacy?
Their own system even includes 'positive vetting', where the spies may disclose their own blackmailable offences to the agency, in a bid to protect them from being turned by other spies.

There has already been lack of due diligence over these powers by the Warrant Signer, himself. Warrant Signer, John Keys has 'fuzzy' memories of the abuse of this power with Kim Dotcom. Warrant Signer, John Keys, has been merely 'disappointed' when journalists pricate phone records were raked over by the GCSB. Far from being a 'safety net like Norton Antivirus'; breaking into one's personal accounts, to steal our information is what we private citizens call 'hacking'.
So those with "nothing to hide have nothing to fear?"
Martin Luther King, Ghandi,  Solzhenitsyn etc have all experienced the worst abuses of this power; lies have been crafted, truths skewed in order to villify those with opposite beliefs to the govt.
Free speech is the basis of creating new laws that push for a better society. We have had to spend years fighting for such rights. Democracy and free speech, once lost are hard to get back.

by Marco on August 20, 2013
Marco

Tim wrote:
Oh, and Richard I don't think this one bill risks creating a fearful population who will think twice about emailing or phoning. Again, that argument seems so extreme that you risk people dismissing your other points.

My partner works for a government department. She's already said to me that she limits what she looks at and what she says online for exactly those reasons. Not just staying politically neutral as a public servant, but including opinions on a bunch of unrelated stuff, and stuff that it would be difficult or embarrassing to explain in her search/browser history/mailing-list membership to a less open-minded boss. Not just for her current position, but in the future. Not just under her real name either, but under pseudonyms that are relatively transparent if you can monitor the metadata around those communications.

Metadata is important. It's not necessary for people to see the contents of your emails if they select you for extra attention based on who you've talked to and where you've been. The "metadata" around your cell phone is essentially a record of everywhere you travel, and if you grab everything, who you associate with. I, for one, would be more comfortable if the police or GCSB could only access such information person by person and if they can convince a judge (not just a politician) that there is good reason to think it would solve a crime and that it's proportional to the crime. (Tracking everyone's movements in order to solve littering or speeding would not, in my view, be proportional)

I personally have been stopped walking home by the police and searched without cause. They asked me if I consented. I was drunk at the time, and had to be at work the next morning at 8am, and decided that if I refused, there was a non-zero chance the police could make my life more difficult, so despite my preferences I "consented". It's that very "encouragement" to "consent" in circumstances where the police or Powers That Be have the ability to make your life more difficult that bugs me. If they're watching everything you do online, then they can alter your behaviour to make you more compliant because you know that if you aren't, you might pay a price.

This government has several times demonstrated a willingness to reveal the personal details of political opponents, even if those opponents are just beneficiaries criticising a minister for how she does her job. Imagine the threat potential if they have access to everything you say and do online and where you go and who you associate with in meat space.

 

 

by stuart munro on August 21, 2013
stuart munro

The Morgan poll puts Key behind Labour/Greens now - which shows that folk not only aren't happy with the Gnats stealing their snapper, they're very concerned about the GCSB trawling through their email to find their snapper possies - shifty blighters!

by Colin Fleming on August 26, 2013
Colin Fleming

I'm a little late to this discussion, not least because the GCSB bill is now sadly law. But I'd like to thank everyone involved for some unusually level-headed discussion on this topic and I think it's worth continuing the debate - maybe we'll get to argue for it to be repealed or amended one day.

I want to talk a little about the technical capabilities of current surveillance organisations, especially the NSA, and why this potentially makes many of John Key's assurances worthless. He has stated several times that the GCSB will not be spying wholesale on the NZ public, but as far as I know has refused to answer questions on whether the GCSB will face any legal restrictions on data on New Zealanders obtained from our intelligence partners, and the bill (again, as far as I know) contains no clarification on this.

The NSA has recently been caught out several times using interesting interpretations of words like "surveillance". Their current stance seems to be that they can collect data on everyone but it's not considered surveillance until a human looks at it. There's very little clarity on all this of course, since it's all secret. However any legal niceties there are only related to Americans - they have absolutely no restrictions at all on their ability to store anything and everything on New Zealanders. Lt Gen Keith Alexander (head of the NSA) was quoted in one of the GCHQ documents leaked by Snowden as saying "why can't we collect all the signals, all the time?" and this is clearly the NSA's intention. Their new data centre in Utah is estimated by William Binney (ex-NSA operative turned whistleblower) to store 5 zettabytes - this is sufficient storage to store all worldwide internet traffic for about 7.5 years. Of course, they can probably fairly easily skim out youtube and porn, which leads Binney to conclude that the new data centre (only one of two they are currently building) would be capable of storing all internet human-to-human communications for over 100 years and have plenty of space left over.

So unless we can get some legal protection to prevent the GCSB obtaining our data from the NSA, I think it's reasonable to assume that within, say, one to two years, all our online communications and activity will be stored and are probably accessible to the GCSB.

I'm no expert on data mining and machine learning, although I am a software developer and understand it reasonably well. It's clearly incredibly powerful technology that could be used by law enforcement to do real good - given a single contact known to be a terrorist you can easily identify all their known associates and anyone they have communicated with online, ever. Using the storage I described above you could then go back and listen to all those communications, or more likely have them automatically analysed to identify suspicious keywords. The state of the art in voice transcription is actually pretty good now (my Google Voice account in the US sends me transcriptions of voice messages left for me by email - it's surprisingly good), and it's reasonable to assume that the NSA's state of the art is way ahead of even Google - they're by far the biggest employer of mathematicians in the US.

The main problem is that to look for patterns in the data you do need all the data and I think these capabilities are just too powerful for governments to refuse - sooner or later total collection will happen whether we like it or not. John Key's assertions that the GCSB would require a lot of analysts to look at any mass collected data are just not true these days and it may not be long before these agencies don't need analysts at all to detect keywords of any type in any kind of communication, and they'll be able to do this for any of your communications since total collection began. My personal suspicion is that the NSA will collect everything on everyone, then analyse the data automatically and then flag the results of that analysis to an analyst who would then get a warrant to look at the data. Note that this is a fairly significant change - the warrant would no longer be for future communications but past and future communications.

Unless we can get a lot more clarity on the relationship between the GCSB and the NSA/GCHQ and on the legal restrictions on data obtained from them, John Key's assertions are basically meaningless. What's interesting is that, like tax law, purely national laws are becoming increasingly irrelevant as technology advances, and the law is clearly incapable of keeping up with the new surveillance techniques.

It's a frightening time.

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