On 3 July I travelled to Parliament to speak to the Intelligence and Security Committee to explain my written submission on the GCSB Bill (see below for the text). Quite a lot of people and journalists were present, although I must admit that Kim Dotcom (who spoke to the committee an hour after me) was the main drawcard.  TV3 did a live feed of the presentations, and Scoop recorded it too.  The link to the Scoop video of my presentation is:

WRITTEN SUBMISSION BY KEITH LOCKE TO THE INTELLIGENCE AND SECURITY COMMITTEE ON THE GOVERNMENT COMMUNICATIONS SECURITY BUREAU AND RELATED LEGISLATION AMENDMENT BILL

By Keith Locke

11 June 2013

This submission opposes the Bill. The submitter holds that it is wrong to give the Government Communications Security Bureau extra powers, as this legislation does, when both Parliament and the people have not yet been adequately informed as to what the GCSB does in our name. Below I cover the areas where I think that information is wanting.

The balance between confidentiality and public accountability 

In an agency such as the GCSB there should be a balance between the need for confidentiality and the need for public accountability. Both this government and the previous one have not sought that balance. Instead, they have routinely refused to provide any basic facts about how the agency operates and the manner in which it is exchanging information with other foreign agencies.

To give one example: when I was a Member of Parliament I repeatedly asked how much GCSB’s main asset, the Waihopai spy base, was costing the taxpayer. The gross annual dollar amount was clearly a matter of public interest, not a matter of national security, yet the Ministers in charge, Helen Clark, then John Key, refused to give that information to me as an MP, on behalf of the taxpayers.

Privacy concerns 

We should not proceed with this Bill when we are still a long way from finding out how much intrusion there is on our privacy by the manner in which the GCSB (and its Five Eyes partners) collect information on people’s communications.  This is currently a matter of huge debate in the United States and other countries (including New Zealand) as a result of the disclosure of that the GCSB’s US partner agency, the National Security Agency, is being provided with daily electronic copies of all telephone call records of American telephone companies. It has also been disclosed that the NSA has systems for the mass collection and processing the “metadata” of millions of email and internet communications. Clearly the phone and email data of hundreds of thousands of New Zealanders are being caught up in this dragnet if they are communicating to or from America.

This American scandal is relevant to the Bill because I believe there is some confusion in the public mind as to what the GCSB actually can do if the Bill grants it the power to assist warranted SIS or Police operations on targets who are New Zealand citizens and residents. The general impression New Zealanders have is that the GCSB has superior communications interception technology  which will be used to help the SIS and Police process their interception warrants, “on the ground” as it were. In fact, the SIS and Police already have their own ready access to telecommunications providers to proceed with warranted intercepts, and ready access to phone call information or “metadata” related to their warrants.

The question the public now needs answering is to what extent the GCSB contribution of “metadata” to the SIS and Police (“metadata” made up most of the GCSB contribution referred to in the Kitteridge report) came from the mass collection of phone data, either from communications intercepted by the satellite dishes at Waihopai, or communication information gained directly from its Five Eyes partners (particularly the NSA).

The extent to which the GCSB’s close association with the NSA (and the other three Five Eyes partners) compromises our protection of people privacy is something that needs to be widely debated before a Bill like this proceeds.

Serving New Zealand’s national interest

We need much more openness and information regarding what goes on at Waihopai, and the GCSB’s links with the other Five Eyes intelligence agencies, so that we can conduct a true cost/benefit analysis of the GCSB.

There is certainly a big downside to being part of such a five nation network which is intercepting the communications of every other government in the world. This was brought home to me 13 years ago on a parliamentary visit with our Foreign Minister to New Caledonia, where our delegation was berated by the New Caledonian government for spying on them through Waihopai.  European governments are also unhappy at the Five Eyes networks spying on them.

It doesn’t help our increasingly important relations with China to be actively spying on their government’s communications as the Five Eyes network (probably including the Waihopai spy station) currently is.

It is hard to detect much of an upside to New Zealand being part of the Five Eyes network. During the entire period of its existence there is no evidence that it has discovered a single criminal (a terrorist or otherwise) or significantly added to the nation’s intelligence regarding developments in our region – beyond what is being provided by diplomats and journalists on an ongoing basis.

Protecting the independence of our foreign policy 

We need an analysis of the extent to which being part of the Five Eyes network compromises, even if to a degree unintentionally, the independence of our foreign policy.  As far as we can tell the mass communications data collected at Waihopai and by the other Five Eyes systems is shared among the five partners to be filtered and further analysed for their own purposes.  Some of these purposes (particularly in the case of the American partner) have been of a nature that would concern most New Zealanders: some examples have been the use of such intelligence in the Iraq war, the use of intercepted information for drone strikes, and America’s use of communications intelligence for a stance towards China that is more confrontational than our own.

There are alternatives 

In terms of dealing with real criminal threats emanating from overseas, the committee should consider consolidating operations in single agency, the Police, which would mean closing down the GCSB as a separate entity.  The Police have their own intelligence system, including links with overseas law enforcement agencies, and have a greater degree of accountability than the GCSB to Ministers, Parliament and the public, and to inspection agencies like the Independent Police Conduct Authority. The Police are also the agency with the track record of dealing with terrorism-related incidents in New Zealand involving foreigners, of which there have only two in recent times. It was the Police who tracked down the French government terrorists who bombed the Rainbow Warrior, and it was the Police who brought to trial two Mossad agents, caught in the process of fraudulently obtaining New Zealand passports in order to conduct terrorist acts.

The Police also have a significant cyber-security capacity, which could be expanded by folding the GCSB capability into it. The New Zealand National Cyber Security Centre could then become an essentially Police agency.

Closing down the GCSB would help avoid the problems I have described above.  But if the Committee doesn’t want to go that far in its recommendations, let’s at least have a more open debate as the nature and functions of the GCSB and its relations with its Five Eyes partners, and the extent to which the GCSB is or isn’t of benefit to New Zealand.