Presented as introductory comments at a workshop hosted by the Anti-Bases Campaign in Blenheim, 28 Jan 2017, and updated to reflect changes made to intelligence legislation in the Intelligence and Security Act 2017.

By Keith Locke

Were the SIS and GSB set up to detect terrorists?

The Security Intelligence Service (SIS), and the Police Special Branch before it, was set up to spy on and detect spying from adversary governments, Germany during World War II and Russia and China during the Cold War.
Its other function was to spy on left critics of government policy – which is why so many activists in the progressive movement have been found to have SIS files.

Has the purpose of the SIS and GCSB now changed so that their main job is now to spy on terrorists and politically motivated criminality?

No. The Snowden papers show that the Government Communications Security Bureau (GCSB) is still mainly engaged in spying on foreign governments, either by itself (as in some of their spying on Pacific government communications) or together with its Five Eyes partners on other governments further afield particularly in Asia, and particularly China.

But surely the SIS and GCSB need to have some focus on politically motivated criminality? The Police aren’t adequate for the job.

Why not? It is the Police who caught the (French) Rainbow Warrior bombers, and (Israeli) Mossad agents stealing NZ passports?

But the Police can’t operate with the same level of secrecy?

Why not? The Police operate secretly chasing criminal gangs. And they are a more publicly accountable agency than the SIS or GCSB – even though there is room for improvement in the accountability of the Police.

Whatever. But isn’t it useful that the SIS has 30 or so people on a potential terrorist watchlist?

If they detected a real plot that would be of some use. However, the intense SIS and GCSB surveillance of the Islamic community here has more of a downside than and upside, in the context of a law-abiding Muslim community and no terrorist incidents so far. SIS agents running around in the Muslim community tends to anger Muslims and make their cooperation with the authorities more difficult.

The Muslim community thinks the intelligence agencies are overplaying the terrorist threat. And I think so too. There is a vested interest in intelligence agencies overplaying the threat, to justify the huge increase in budget and personnel they have been given. All in the context of zero terrorist incidents.

You may be right. But being part of a larger Five Eyes network (with the US, Canada, UK and Australia) enables us to help fight international terrorism.

Actually, through the electronic intelligence we pass on from Waihopai, we are contributing to the ability of the United States itself to carrying out acts of terrorism, with drone bombings in Pakistan, the Yemen, Somalia, etc.
Such American military action is also counter-productive, provoking more terrorist responses.

Right now, do we really want to be feeding masses of information from Waihopai and the GCSB to Donald Trump’s National Security Agency (NSA) when we know it will help Trump’s administration target and kill those whom he perceives to be his enemies, and which will help him implement his prejudicial and racist border control policies?

But surely, through being part of Five Eyes we get some useful intelligence?

Maybe. But how do we know? Can you think of any NZ government decision that may have been improved because of information from Five Eyes.

But surely the balance sheet, with the extra information from Five Eyes, would be positive for New Zealand.

The evidence is just the opposite. Since the Snowden papers government figures in China, Brazil, Tonga and the Solomons have complained about GCSB spying on them. It taints our relations with such countries.

But surely all countries do such spying?

No they don’t. No electronic intelligence network in the world matches the Five Eyes. And no Pacific Island nation conducts electronic spying on us.

But what about China? Isn’t it a big spying nation?

Is it really in New Zealand’s national interest to get in a spying contest with a big nation like China, our biggest trading partner.  And really, how many secrets does New Zealand itself have? We are an open society. Even details of our defence assets are generally available.

What about cybersecurity, which is vital in today’s world. Isn’t the GCSB essential here?

Yes, cybersecurity is important, in fact too important to be in the hands of the GCSB. The GCSB has a vested interest in creating back doors into New Zealand computer systems, thus weakening their security for any hackers. Cybersecurity should be done by an independent agency, dedicated to cybersecurity and nothing else.

Another danger is that because the GCSB is linked with the NSA through Five Eyes it will be caught up in NSA’s use of an offensive cyber capability, that is cyberwarfare. Cyberwarfare us the last and worst type of activity a small country like NZ should want to get into in today’s world.

The intelligence services may not contribute much, but they probably do a bit to protecting our freedom?

It’s more the opposite.  Historically, their political spying has been on left-wing critics of the government, and through the official vetting the SIS does it has prevented many civil servants from getting jobs or promotions because of their political views or activities. This vetting continues today. Any necessary vetting for previous criminality, that is non-political vetting, should be done by the Police, who possess the convictions database.

But wouldn’t the SIS be breaking the law by politically discriminating against New Zealanders in the way you’ve described?

The law has been written with such a broad definition of “national security” that in the eyes of the government and the intelligence agencies it can include any critics deemed to be involved in threats to “international security that have the potential to impact adversely on New Zealand’s interests” or threats to “the operations of the Government of New Zealand.” These definitions could catch people critical of our government’s foreign policy, or protesters engaged in non-violent civil disobedience, like trying to block deep sea oil drilling. Additionally, if a New Zealander is working with a “foreign person” or a “foreign organization” like Greenpeace he or she could be spied on for threatening “the international relations and well-being of New Zealand or the economic well-being of New Zealand.”

Couldn’t we challenge such spying on us, or the use of the information gained to discriminate against us?

Generally, you never find out you’ve been spied upon, or even if there is an SIS or GCSB file on you. And even if people find out that there has been a negative job vet on them, they generally give up pursuing the job, rather than challenging the vet. For example the Algerian refugee Ahmed Zaoui spent years trying to find what the SIS had on him, which stopped him getting asylum for a long period.

At least we have been reassured that the GCSB is not doing mass surveillance of New Zealanders.

But surely that is what Waihopai has historically done, collecting bulk communications data from satellites. This type of collection inevitably sweeps up communications to and from New Zealanders. Also, the raw data the GCSB collects, including NZ communications, is shared with its Five Eyes partners.
They are also spying on New Zealanders, as we found in the Tony Fullman case, where a New Zealand critic of the Fijian government was spied upon by the NSA and his Auckland home was raided. (This NSA spying operation on Fullman was exposed in the Snowden papers.)

But surely the GCSB’s mass collection at Waihopai would be in violation of the system granting warrants to spy on specific targets, not everyone?

It is not clear yet what legislative authority the GCSB has under the new legislation to conduct this sort of communications collection, other than reference to the broad nature of interception powers granted under the new warrant system. Under past legislation the GCSB relied on what were called Director’s authorisations rather than warrants. These authorisation we deemed to be legally valid because the electronic interceptions via Waihopai took place in space, rather than involving a direct physical connection to a computer system. Oddly, a physical phone tap on one person required a warrant, yet the Waihopai spy station intercepting millions of phone calls, texts or emails in space, didn’t seem to need a warrant.

Also, when analyzing the Waihopai data the GCSB can be using very broadly defined warrants – for a “class of persons” (like anti-TPPA protesters). Or the GCSB can accidentally on purpose stumble over a piece of intelligence as it does its computer searches, and call it “incidentally obtained intelligence”, which then makes the collection legal.

But don’t we have a backstop, keeping the government honest, the Inspector General of Intelligence and Security?

It’s better than nothing. But the Inspector General is required to operate within the framework of the present system and the legal powers given to the intelligence agencies. There is a limit to how much the Inspector General can constrain the inherent pro-government political bias in the system, and the way it intrudes on our privacy.