[Submission by Keith Locke to Parliament’s Foreign Affairs, Defence and Trade Select Committee, 3 October 2016]
The NZ Intelligence and Security Bill unnecessarily allows for greater surveillance of New Zealanders by our intelligence services and intrudes further on our privacy. The definition of national security is so broad that it could enable even more surveillance of legitimate political dissenters by the intelligence services than has happened to date. The Bill should not be proceeded with.
Threats Faced by New Zealand
Any discussion of whether the intelligence services should be granted extra powers should begin with a discussion of the threats facing New Zealand. The fact is that we are a remarkably peaceful people. In the last 100 years there is not one proven case of politically motivated act by a New Zealander causing death. [My only qualification is that the Wellington Trades Hall bombing in 1984, which resulted in one death, may have been politically motivated.] The only proven terrorist act was committed by non-New Zealanders, namely the French agents who bombed the Rainbow Warrior in Auckland Harbour in 1985, killing a Portuguese photographer. Non-state terrorism has proven to be a problem in some Western countries, especially those, unlike New Zealand, that are heavily involved in foreign wars, or have a socio-economically marginalised Muslim population, or have a body politic significantly prejudiced against Muslim people. There is no global terrorist threat. The majority of nations are not threatened by non-state terrorism.
Of course, there is always the possibility of a politically motivated violent act, causing death, taking place on New Zealand soil, but it would be an exceptional event. It would not, by itself, justify enlarging the present powers of New Zealand’s intelligence services.
The Bill massively increases the collection of personal information on New Zealanders.
There are several reasons why granting the GCSB power to spy on New Zealanders will result in a much greater intrusion on the privacy of New Zealanders.
Firstly, the GCSB’s intelligence collection is less targeted than that traditionally carried out by the Security Intelligence Service. We already know that the GCSB collects bulk information on satellite communications accessed by at its Waihopai spy station (which is part of the Five Eyes network). There is nothing in the proposed legislation stopping this from continuing. Nor will anything in the Bill prevent the international communications of New Zealanders being drawn down into the satellite dishes at Waihopai to be stored and later analysed, because such communications don’t identify NZ citizenship. We know from the Snowden documents that the whole direction of the Five Eyes network (including the GCSB) is to collect, store and share with each other as much raw communications and social media data as is technically possible – on the basis that some of it may later be useful. The all-inclusive definition of “information infrastructure” in Clause 4 covers any electronic communication, and Clause 66 allows the GCSB access to any such transmitted or stored communication. There are no clear limits to what can be collected and through what means.
Secondly, because the GCSB shares a mass of its raw data with its four Five Eyes partners [loosely provided for under Clause 13], the result of this sharing will be a greater intrusion into the privacy of New Zealanders, as well as its misuse against New Zealanders.
We know from the Snowden papers that the data collected by the Five Eyes is mainly used to spy on other governments or political dissenters, for political ends which are often contestable. For example, the GCSB’s proven spying on, Roberto Azevedo, the (successful) Brazilian candidate for WTO director-general, was aimed at giving New Zealander Tim Groser the edge in the contest. http://www.stuff.co.nz/national/politics/67475818/government-accused-of-spying-on-wto-top-job-candidates. This was spying to advance the government’s neo-liberal trade and investment agenda, personified by former Trade Minister Groser, an agenda which is contested by other New Zealand political parties.
Thirdly, we also know from the Snowden papers that Five Eyes partners are providing intercept information about New Zealanders. In 2012 Tony Fullman, a New Zealand citizen, had his house raided on the basis of information passed on to the GCSB by the US National Security Agency. His “crime” was to be a peaceful advocate of democracy in Fiji. Analysis of the Snowden papers showed he was one several Fiji pro-democracy activists who had their Gmails and Facebook posts monitored by the NSA. https://theintercept.com/2016/08/14/nsa-gcsb-prism-surveillance-fullman-fiji/
Fourthly, the warrant system contained in the Bill will not prevent information on many law-abiding New Zealanders being taken from the mass of intercept data collected by the GCSB and Five Eyes. The warrants can be very broad in their catchment. They can be for a “class of persons” (Clause 61), or they can be what are called “purpose-based warrants” (Clause 64). Either way such warrants can cover a lot of people, such as those New Zealanders attending a mosque or group of mosques, or all those New Zealanders travelling to certain countries.
Fifthly, GCSB can pass on to other agencies for analysis anything from its mountain of electronic intelligence data. All it has to do is define that information as “incidentally-obtained intelligence” under Clause 91. Remember such intelligence doesn’t need to have anything to do with real or potential criminal activity. All that is required is that there is believed to be a “potential threat” to New Zealand’s “security” as determined by the agencies. Under Clause 91 information “incidentally obtained” on legitimate political dissenters could be kept or passed on.
Using intelligence information against legitimate dissenters
There is an inherent contradiction in the legislation. Clause 22 says that collecting intelligence is not justified when it is infringing “the right of persons to engage in lawful advocacy, protest, or dissent in respect of any matter.”
However, this can be overridden when “national security” is deemed at risk. As defined in Clause 5 “national security” can include any activity, even if it is not criminal activity, which affects New Zealand’s “status as a free and democratic society” or threatens “international security” or “the quality of life of the New Zealand population” or represents “acts of foreign interference, that may cause serious damage to New Zealand’s economic security or international relations.” What this means is that the intelligence services are authorised to act in secret to monitor and help counter perfectly legal activity if those agencies define it as contrary to “national security”, whether that activity is carried out by New Zealanders or non-New Zealanders.
All of the types of legal political activity targeted under the “national security” label are politically contestable. For example, dissenters in New Zealand believe the Trans-Pacific Partnership Agreement threatens our “national security” in that the agreement threatens our “status as a free and democratic society” and our “quality of life” and could, by increasing global inequality, threaten “international security”. The present New Zealand government believes the opposite, that the anti-TPPA dissenters threaten “national security”, and under this Bill could use the intelligence services to monitor those dissenters.
New Zealand anti-TPPA dissenters believe it is perfectly proper, under our Bill of Rights, to coordinate campaigning against the TPPA with international NGOS (eg. Greenpeace and Oxfam) or other governments without these foreign NGOs or governments being spied for committing “acts of foreign interference that may cause serious damage to New Zealand’s economic security or international relations.” New Zealand should champion a free global debate among people, organisations and nations over free trade and investment pacts, without any involvement of security services. Unfortunately, that is not the case, as we have seen in the Groser/WTO case and in the NSA’s spying on European governments during trade negotiations, as disclosed in the Snowden documents.
GCSB spying on Pacific governments unjustified and contrary to our interests
The GCSB electronic spying on Pacific Island governments, exposed in Snowden papers and rightly criticised by several Pacific leaders, is an unjustified and illegal breach of their right to privacy. It negatively affecting our relations with these states, none of whom are conducting electronic spying on us.
Spy agencies focus on political critics of the NZ government, not those engaged in illegal activity
The fundamental problem is that the SIS and GCSB are primarily agencies for political spying on legal activity. While part of the Bill’s definition of “national security” [Clause 5] covers “unlawful acts” (ie: those which have a political motive), in practice the agency does little in this area, for two reasons. The first, which I aludded to earlier, is that in recent years there have been not been politically motivated criminal acts of any consequence. Secondly, we already have an institution, the Police, which is dedicated to detecting and prosecuting politically motivated illegal acts – such as the bombing of the Rainbow Warrior in 1985, or the securing of fraudulent New Zealand passports by Mossad agents in 2004.
A perusal of those personal SIS files that have been released proves that the overwhelming bulk of the agencies work has been directed against perfectly legal dissent. This is likely to continue under the terms of this Bill. My own SIS file, which covers 51 years of my life, records only my legal political activities as a dissenter. I have no criminal record.
Oversight mechanisms inadequate
There has been some improvement in oversight mechanisms, but they are still inadequate. While more people from outside the service will be involved in granting surveillance warrants this won’t act as much of a check if those people accept the Bill’s ethos that political spying to advance a government’s political agenda is ok. The Intelligence and Security Committee in the Parliament will remain relatively toothless. The GCSB and SIS Directors can still block information going to the Committee by defining it as “sensitive” (Clause 163). It is good, however, that the Inspector-General will now have access to all security information (Clause 142). Much will now depend on the quality of the Inspector-General as a check on abuses in the system, and as someone who can listen to whistleblowers. However, in relation to whistleblowers, I strongly oppose new provision 78AA (Clause 207) providing for 5 years in prison for those who disclose anything “classified”. Whistleblowing is sometimes the only way to expose wrongdoing in public institutions and the SIS and GCSB are not exceptions. Particularly worrying is the potential for journalists to be penalised (under 78AA 2 (b) (ii)) for publishing classified material that exposes wrongdoing.
An independent cybersecurity agency needed
The GCSB currently has one useful responsibility, cybersecurity [see Clause 15], but this function should be devolved to a new independent government cybersecurity agency, which involves and coordinates its work with the Police and other relevant agencies. The GCSB, tasked with breaking in to computers and creating back door entry in to communications devices, is not the best agency to protect our IT systems.
I ask the Select Committee be bold and challenge the need for the SIS and the GCSB, given that our Police force is perfectly adequate to deal with politically motivated criminal behavior, and we don’t need a state agency to monitor our non-criminal political behavior. The GCSB’s cybersecurity function should be devolved to a new independent agency.
I recommend the Select Committee not proceed with this Bill in its present form. Overall it puts New Zealanders in a worse situation than in already existing legislation, in relation to both their personal privacy and their right to untrammeled freedom of expression.
However, given the Bill is likely to have the numbers to proceed I do support the deletion (or amendment) of any Clauses which extend the scope of GCSB and SIS spying on non-criminal political activity. I have already mentioned the problems with Clauses 4, 5, 13, 15, 61, 64, 66, 91, 163 and 207. Conversely, I support all measures in the Bill which may improve, even if marginally, the accountability of SIS and GCSB operatives. I have mentioned, for example, Clause 142 which I support because it removes the existing restraint on the Inspector-General accessing all security information.