My TVNZ Breakfast interview on what’s wrong with the GCSB Bill

I was interviewed on Television New Zealand’s Breakfast programme on 26 July on why I was opposed to the Government Communications Security Bureau Bill. You can watch it as:

http://tvnz.co.nz/breakfast-news/gcsb-protests-growing-video-5519462

My submission to the Intelligence and Security Committee on the GCSB Bill

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.

Several of my recent Daily Blog posts have been on intelligence issues

My recent Daily Blog posts have covered the furore around the illegal spying by the GCSB on New Zealanders, as well as following up the Snowden revelations on mass US National Security Agency surveillance – in this context I noted how wrong it has been for the GCSB to help the US National Security Agency to spy on China. Other blogs have covered the needless imprisonment of innocent men at the Guantanamo prison, and the success of the independence movement of French Polynesian in getting their territory inscribed on the UN list of nations to be decolonised.  Go to:  http://thedailyblog.co.nz/category/bloggers/keith-locke/  for the posts.

Keith Locke: US spy agency may be passing info on Kiwis to GCSB

The following opinion piece from me was published in the New Zealand Herald on 10 June 2013.

It has now been established that the United States National Security Agency (NSA) has been systematically collecting the phone records of millions of Americans.

A relevant question for New Zealanders is whether the NSA has been passing some of this phone data on to our Government Communications Security Bureau (GCSB).

There are several indications that this may be so.

Firstly, the NSA and the GCSB are known to exchange information through an intelligence network called Five Eyes – which also included the British Government Communications Headquarters, the Canadian Communications Security Establishment and the Australian Defence Signals Directorate.

We also know the NSA and the GCSB pay particular attention to “metadata”, which includes phone call data such as who called who, at what times, and how long the conversations lasted.

The latest revelations in the United States are largely about this “metadata”. In April, Judge Vinson, of the United States Foreign Intelligence Surveillance Court, ordered Verizon (one of the largest US telephone companies) to give the NSA “on a …daily basis” electronic copies of “all call detail records or ‘telephony metadata’.”

In March, the Kitteridge report confirmed that our GCSB had provided “metadata” on some of the 88 New Zealanders spied upon between 2003 and 2012 in support of 55 Security Intelligence Service operations and one Police operation.

Last month, the Inspector-General of Intelligence and Security, Paul Neazor, analysed these 56 operations and concluded (according to the summary provided by GCSB director Ian Fletcher) that 34 out of the 56 operations “involved the [GCSB’s] collection of metadata”.

This poses the question of what “added value” this GCSB metadata provided to these predominantly SIS operations, given that SIS warrants give that agency its own access to New Zealand telecom call data.

The probable answer is that the GCSB’s contribution was international phone and email metadata relevant to SIS’s targets supplied by its four Five Eyes partners, with the NSA being the main provider. A small proportion of this metadata may also have come from the GCSB’s own asset, the Waihopai spy base, which intercepts non-military communications passing through two geostationary satellites over the Pacific equator.

What is worrying about the attention being given by the SIS and GCSB to the 85 New Zealanders identified in the Kitteridge report is that not a single one of them seems to have broken the law. Mr Fletcher says in a May 21 press statement that “no arrest, prosecution or any other legal processes have occurred as a result of the information supplied to the NZSIS by the GCSB”.

This suggests that many of the New Zealanders the SIS and GCSB are targeting, such as new migrants from Islamic countries, are not really potential criminals and shouldn’t be attracting such attention from our spy agencies.

It may be that the agendas of both the SIS and the GCSB are driven by an overblown perception of a security threat, resulting in an excessive intrusion on the privacy and communications of innocent New Zealanders.

This overreaction may be in part a result of New Zealand’s close association with US spy agencies, which tend to exaggerate the danger of terrorism, and treat people’s right to privacy as a secondary matter.

For example, the US director of national intelligence, James Clapper, said recently that the collection of every citizen’s phone information is necessary “because more narrow collection would limit our ability to screen for and identify terrorism-related communications” (Guardian, June 7, 2013). We should press our government to rule out any such comprehensive phone data collection here. The message should be that it is not acceptable and would violate our Privacy Act.

We should also be wary of extending the powers of the GCSB, as a Bill before Parliament seeks to do, when we know so little about the relationship between our electronic spy agency and the NSA.

There could be damage to New Zealand’s reputation as an independent player if the GCSB is seen to be adopting the targets and overly intrusive methods of the NSA – by virtue of being so closely tied in with the Five Eyes network.

In trying to sell the Bill to the public, Prime Minister John Key has been playing up the GCSB’s cyber-security role. This is a useful service to the public. However, it is only a small part of what the GCSB is doing.

It is ironic that at the same time as GCSB is helping ensure the confidentiality of government communications, it may be collaborating with a foreign agency, the NSA, which is breaching the confidentiality of communications between its citizens by ensuring that their phone records are passed on to government agencies.

Former MP Keith Locke was the Green Party’s spokesman on intelligence and security issues.

Why NZ shouldn’t support Sri Lanka hosting the Commonwealth Heads of Government summit

Below is the text of an Opinion Piece I had published in Wellington’s daily newspaper, the Dominion Post, on 3 May 2013.

http://www.stuff.co.nz/dominion-post/comment/8627516/NZs-reputation-at-stake-over-summit-venue

NZ”S REPUTATION AT STAKE OVER SUMMIT VENUE

OPINION: Sri Lanka is not fit to host this year’s Commonwealth Heads of Government meeting, writes Keith Locke.

The Government needs to explain why it is not supporting Canada’s campaign to have the November Commonwealth heads of government meeting (CHOGM) moved from Sri Lanka.

Canada has given three main reasons for shifting the summit.

First, Sri Lanka has avoided any accountability for the thousands of Tamil non- combatants who were killed, mainly by government shelling, near the end of the civil war in May 2009. Estimates of the deaths range from 10,000 to 40,000.

In March 2011, a United Nations panel of experts found serious violations of human rights law had been committed by both “the government of Sri Lanka and the LTTE (Liberation Tigers of Tamil Eelam), some of which would amount to war crimes or crimes against humanity”. It said “the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity”. Since then the UN Human Rights Council has passed two critical resolutions, including one in March calling for a credible international inquiry into the allegations of war crimes.

The problem is the Sri Lankan Government won’t let independent investigators into the country.

Second, Canada argues that there have been no meaningful reconciliation moves by the Sri Lankan Government since the end of the war. The Sri Lankan military still holds sway in the Tamil north of the country, persecuting former supporters of the Tamil Tigers, and stopping life from getting back to normal.

All plans to devolve some powers to the northern Tamil region have been scrapped, despite a constitutional provision allowing for it.

Third, Canada has identified a growing authoritarian trend as the Rajapaksa government clamps down on dissent. The media has been a particular target, with several journalists killed, wounded or detained in recent years. In February a reporter for the Sunday Leader, Faraz Shaukatally, was shot and badly wounded. Last month, thugs believed to be backed by the military, raided the Jaffna office of the Tamil daily, Uthayan, and burnt its printing presses.

In January, judicial independence was dealt a severe blow with the impeachment of the Chief Justice, Shirani Bandaranayake. President Mahinda Rajapaksa ratified the dismissal despite rulings from the Supreme Court and the Appeal Court that the impeachment process was illegal.

Holding CHOGM in Colombo will make a mockery of the charter just developed by the Commonwealth and signed in March by the head of the Commonwealth, Queen Elizabeth.

This charter commits Commonwealth leaders to democracy, human rights, tolerance, freedom of expression, good governance and the rule of law – none of which are respected by the Rajapaksa government.

To make matters worse, Sri Lanka’s president, as the CHOGM host, will become chair of the Commonwealth for the two years until the heads of state next meet.

So far Canada’s campaign to move CHOGM away from Sri Lanka has met with little success.

Britain’s Conservative government has been critical of Rajapaksa but won’t support changing the conference venue.

Australia has turned a blind eye to the continuing tragedy in Sri Lanka, apparently so it can justify returning Tamil boatpeople to their home country.

And what of New Zealand?

Our Government seems to be keeping as quiet as possible.

It is not as if the New Zealand Government is ignorant of the dire human rights issues in Sri Lanka. I was a member of Parliament’s foreign affairs, defence and trade select committee when, in 2009 and 2010, it was briefed by the Ministry of Foreign Affairs and Trade.

We were told about difficult conditions in the internment camps for Tamils and the limitations on access by international aid organisations; the absence of a political reconciliation process; and the danger to democracy following the arrest of Rajapaksa’s opponent in the February 2010 election, General Sarath Fonseka.

Since then Rajapaksa has strengthened his grip on power, supported by his brother, Gotabhaya, who is defence secretary; another brother, Basil, who is economic development minister; and a fourth brother, Chamal, who is Speaker.

Amnesty International, in its latest report on April 30 said the “violent repression and the consolidation of political power go hand in hand” and “there is a real climate of fear in Sri Lanka, with those brave enough to speak out against the government often having to suffer badly for it”.

The reputation of both New Zealand and the Commonwealth is at stake here. New Zealand rightly challenges abuses of democracy in our region – such as in Fiji (which has been suspended from the Commonwealth). But we can be accused of a double standard if at the same time we allow the Commonwealth to be chaired for the next two years by a president who refuses any accountability for the deaths of so many innocent civilians in his country’s civil war and who is governing in an increasingly authoritarian manner.

Keith Locke is a former Green MP.

My Daily Blog posts on GCSB, domestic drones, political censorship and West Papua

To read some of my recent Daily Blog Posts go to: http://thedailyblog.co.nz/category/bloggers/keith-locke/

The blogs cover the GCSB controversy, the use of domestic drones, political censorship in NZ (on the dictates of the Chinese government) and the growing international support for the West Papuan cause.

What’s wrong with the GCSB

Keith Locke, Martyn Bradbury and Selwyn Manning on Face TV’s Citizen A, 11 April 2013

Appeal to John Key, visiting Latin America, to go to Hugo Chavez’s funeral

My contribution to new Daily Blog today is an appeal for Prime Minister Key, currently visiting Latin America, to go to Hugo Chavez’s funeral, with all the reasons why.

Rule Britannia: Key keeps the ban on Catholics in the Royal Succession Bill

I am including here the link to my first contribution to The Daily Blog, a new left political/cultural blog. Other regular contributors to the blog include Chris Trotter, Jane Kelsey, Matt McCarten, Laila Harre, John Minto, Martyn Bradbury, Sue Bradford, Wayne Butson, David Slack and Selwyn Manning. This Daily Blog contribution analyses the discriminatory Royal Succession Bill, now before Parliament.

Dotcom case shows the cost of spying is spooky

Oped published in the New Zealand Herald on 18 December 2012

By Keith Locke

The Dotcom case is focusing more attention on the Government Communications Security Bureau and its association with the Five Eyes electronic spying network.

Chief High Court Judge Helen Winkelmann has asked the GCSB to name the entities (including foreign intelligence agencies) that were in receipt of some of the information the bureau had illegally gathered on Dotcom.

Hopefully, the judge will have more success in prising information out of the electronic spy agency than I had during my 12 years as a member of Parliament.

When I was an MP, even the most basic information was deemed too secret to disclose.

Back in 2006, I had no luck in getting then Prime Minister Helen Clark to even admit that New Zealand was a formal member of a five-nation electronic spying network. When I asked her direct parliamentary questions about our ties with UKUSA, the intelligence sharing treaty which underpins the Five Eyes network, she simply refused to answer.

This was a bit silly, because it was by then public knowledge that the five UKUSA signatories were the United States, the United Kingdom, Canada, Australia and New Zealand.

John Key – Helen Clark’s successor as Minister in Charge of the GCSB – was no more co-operative.

One of an MP’s responsibilities is to monitor departmental expenditure, but I couldn’t do that for the GCSB because the government would only provide the bureau’s gross annual expenditure.

There were hints at what the GCSB might be spending its money on, but no figures were provided. I discovered in the GCSB annual report for 2009 that there had been a “significant investment” in the satellite communications interception station at Waihopai, and I wanted to know more. I felt taxpayers were entitled to know what was being spent on Waihopai and surely the government could provide at least an overall figure or the year.

But Key wouldn’t tell me, on the grounds that under the Public Finance Act intelligence agencies are not obliged to provide expenditure details. I countered that that act didn’t prevent the government disclosing some expenditure details – in the public interest – when there was no genuine security issue involved. It seemed to me that the Prime Minister didn’t want to disclose the annual spending on Waihopai for fear there would be more public debate on whether it was money well spent.

Such a debate could raise awkward questions about the spy station, such as how much useful information New Zealand gains for itself, or whether partner agencies such as the United States National Security Agency are the main beneficiaries. In turn, this raises a broader question of whether operating the Waihopai facility for the Five Eyes network compromises our independent foreign policy. The potential for our foreign policy to be compromised grows as the United States shifts its attention towards Asia and becomes more interested in the communications of Asian governments intercepted by the satellite dishes at Waihopai. These are Asian governments, such as China and Japan, which have otherwise good relations with New Zealand and might be upset that we are helping America spy on them. Another problem with the impenetrable shroud of secrecy around the GCSB is that it breeds incompetence of the sort we have seen in the Dotcom saga. It is a rule of thumb that the more opaque and unaccountable a government agency is, the more mistakes it will make.

In practice, there is very little oversight of GCSB activities. The Prime Minister clearly isn’t able to give it much time, even though he is both the Minister in Charge and the chair of the Intelligence and Security Committee, the only oversight body in the Parliament. It is hard to judge the effectiveness of the Intelligence and Security Committee because, unlike similar bodies overseas, it meets in total secrecy. The only other person engaged in oversight is the Inspector-General of Intelligence and Security, Paul Neazor. He is handicapped by being part-time, and judging by his annual reports he concentrates his attention on the Security Intelligence Service, not the GCSB.

It is a pity that despite all the attention on the GCSB’s illegal surveillance of Dotcom, there has been little debate about the mission of the agency and how much value we are getting from it.

We need more public discussion on what New Zealanders gain or lose from the Waihopai facility, and from the other significant GCSB facility, the radio communication interception station at Tangimoana near Palmerston North.

It would also be worth reviewing whether another key GCSB task, helping protect the security of government computers, is being carried out adequately in the light of the failures in Work and Income and some other departments.

The GCSB budget is $64 million so the agency is worth more public attention, particularly in times of financial restraint.

Keith Locke is a former Green MP. He was also the party’s spokesman on intelligence and security issues.