SPECIAL FEATURE: Is Warrant-less Spying on New Zealanders Lawful?

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John Key speaks about Pacific spying claims

 Special report by Denis Tegg

We have been repeatedly assured by the Prime Minister that the Government Communications Security Bureau (GCSB) cannot spy on New Zealanders without a warrant. But what if the greatly enhanced knowledge we have gained from Edward Snowden’s disclosures of mass global surveillance, has actually left New Zealanders nakedly exposed to lawful warrant-less spying on their internet communications by the GCSB? That perverse and deeply disturbing outcome for New Zealander’s privacy and democratic freedoms has been overlooked by commentators on state surveillance since the GCSB Act was passed in September 2013.

The Snowden revelations of the last twelve months now mean that most of us have greatly increased expectations that our emails, phone calls and online activity will be intercepted. A Stuff.co.nz/Ipsos poll, of 21 June 2014 shows 71.6 % of New Zealanders believe United States spy agencies are gathering data on them.

These raised expectations that our communications will be intercepted, now profoundly affects the legal interpretation of a critical phrase – “private communications“, in the GCSB Act. The phrase is critical because it is supposed to provide protection for New Zealanders against the GCSB’s intelligence gathering powers (section 8B), and warrant-less interception powers (section 16).

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Under the GCSB Act a communication can only be “private”, and therefore protected from interception, if one of the parties has a “reasonable expectation” that their communication will not be intercepted by some other person. A “reasonable expectation” in this context is not about privacy in the wider meaning of that term, or about loss of privacy. Defining “reasonable expectation” in the GCSB Act requires a much narrower and focused enquiry – as to whether the communication will be intercepted. It is irrelevant whether the interception occurs overseas, or within New Zealand.

The Snowden revelations have helped turn this critical phrase in the GCSB Act, which is supposed to safeguard our democratic freedoms and privacy, into a contrivance which now works contrarily to largely extinguish those protections. Lawful warrant-less surveillance of New Zealanders by the GCSB is possible.

No amount of oversight after the event can protect the public, if the GCSB is lawfully exploiting a legal loophole.

Would the public ever know that the GCSB was exploiting these legal flaws in this manner? The answer is they would not. The GCSB’s legal advice and internal operations are kept highly secret.

If the interception of everyday communications is deemed by the GCSB to be not private, and therefore legal, then no warrant is required from either the Prime Minister or The Commissioner of Security Warrants. Warrant-less interception is possible, no register need be kept, and any audit by the Inspector General of Intelligence and Security would confirm legal compliance. The GCSB could also lawfully request any Five Eyes partners or other foreign intelligence agency to share data it holds on New Zealanders.

The Government has known about this legal loophole, but has deliberately chosen not to close it. In 2010, the Law Commission Stage 3 Report on Privacy pointed out that the definition of “private communication” in the criminal law was outdated and seriously flawed.

In June 2013, submissions from the New Zealand Law Society, and Appeal Court Judge Sir Grant Hammond on behalf of the Legislation Advisory Committee, both raised serious concerns about the phrase “private communications” in the GCSB Bill. Sir Grant took his concerns to the media, where he stated –

“the definition of the term “private communications” within the protection clause of the bill was not clear and, because it was central to the protections in the bill, it needed further work.

“It’s a trigger provision. A lot of other things turn on it. “

Both the Law Society and Sir Grant strongly submitted that the phrase be strengthened to take account of changes in technology, and community expectations of privacy.

“The LAC suggests that the definition of “private communication” be revised to better reflect the level of communications, information and data privacy that New Zealanders may reasonably expect.”

The Prime Minister’s Office acknowledged that New Zealander’s metadata and content, would not always meet the legal test for a “private” communication, and could in some circumstances be intercepted.

But the Government would not agree to delay the Bill until a precise and protective definition was established. Instead the Bill was rushed through Parliament with a two vote majority – including that of MP Peter Dunne. Mr. Dunne gave his support in return for a commitment from the Government to review the definition of “private communication”, stating this is “what I have ensured will happen as a priority”. A year later, the review has not even begun, and the Government has delayed any review indefinitely.

Edward Snowden has stated that New Zealand was one of the countries to which the US and UK spy agencies provided “legal guidance” on how to degrade its legal protections and enable mass surveillance. In written testimony to the European Parliament, Snowden said,

“Lawyers from the NSA, as well as the UK’s GCHQ, work very hard to search for loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance operations that were at best unwittingly authorized by lawmakers. These efforts to interpret new powers out of vague laws is an intentional strategy to avoid public opposition”

This context explains why the Government has rushed through radical changes to the GCSB Act knowing full well that a critical definition was deeply flawed, and explains why it has then reneged on a promised “urgent” review and delayed it indefinitely. The intention is clear – the GCSB wishes to retain the current definition of “private communications and with it – “loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance operations”

We know from Snowden’s disclosures that the NSA, with assistance from its ‘Five Eyes’ spy partners, – UK, Canada, Australia, and New Zealand, now intercepts (and in some cases stores) emails, calls and internet activity on a global basis. 95% of all New Zealand’s internet traffic passes, via the Southern Cross undersea cable to the US, where it may be lawfully intercepted, as “foreign intelligence”. In many cases this will include communications between two people in New Zealand.

The NSA has “Network Security Agreements” with scores of cable companies worldwide, including Telstra in Australia. These agreements compel the cable companies to grant access to all the data on their cables when they land on US territory. Telecom New Zealand, which half owns the Southern Cross cable, has confirmed that once its cable entered US territory, it is legally obliged to co-operate with US laws.

One of Snowden’s documents suggests that the NSA has a broad no-spying agreement with New Zealand and the other “Second Party”/Five Eyes partners. But as this NSA flowchart makes clear – spying on citizens of “Second Party” nations such as New Zealand is possible with “additional approval.” In other documents released by Snowden, the phone, internet and email records of UK citizens not suspected of any wrongdoing have been analysed and stored by the NSA under a secret deal with UK intelligence officials.

The Snowden revelations have confirmed that the spy agencies –

  • have direct access to Google, Apple, Facebook and Yahoo data
  • intercept data on fibre optic cables on a global scale
  • unlock encryption, and monitor banking and credit card information
  • collect email address books and millions of text messages daily
  • may target NZ citizens without NZ Government knowledge or consent
  • infect computer hardware with malicious malware to allow spying
  • intercept web cam and other images
  • collect and store phone conversations for whole nations “word for word”

The mission of the Five Eyes partners has been articulated in a briefing as mass surveillance where globally, the spy agencies – “know it all, partner it all, collect it all, and exploit it all.”

Some might believe that the GCSB would never attempt to exploit a loophole in the law in this manner. The legal stance taken by the US and UK intelligence agencies suggests otherwise.

The US authorities recently successfully contended in court that customers of Lavabit, an encrypted email service, still did not have a reasonable expectation that their emails would not be intercepted.

The US Department of Justice has just argued in another case before the US courts that,

“the privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States”.

A loophole allowing the NSA to carry out warrant-less spying on Americans has been revealed in this Washington Post article.

The US Government also argues that Americans cannot expect that their private communications will not be intercepted by the NSA, when intelligence services of so many other countries might be monitoring those communications too.

In the UK, Britain’s top counter-terrorism official has been forced by a legal challenge to attempt to legally justifying the unwarranted mass surveillance of every Facebook, Twitter, YouTube and Google user in the UK. The legal sophistry advanced includes suggesting that two British users messaging each other on Facebook are not communicating with each other but with the Facebook “platform”. Even when privacy violations happen, it is not an “active intrusion” because the analyst reading or listening to an individual’s communication will inevitably “forget” about it anyway.
When the US and UK authorities use such dubious legal justifications, we should not be surprised if the GCSB interprets New Zealand law to facilitate warrant-less interception of our emails, phone calls and online activity.

Assume that the GCSB has targeted a prominent New Zealand citizen for surveillance. This person has a clean criminal record and no links to any terrorist or cybercriminal group. People with a similar profile have been subject to surveillance in the US.

A GCSB intelligence analyst has access to a NSA-developed computer data search program called XKeyscore. XKeyscore enables a single search to query “all unfiltered data”, including mass harvested email addresses, phone numbers, online chat, social media activity, web-based email and attachments, sent to or stored at 150 global sites, on 700 database servers. Disclosures confirm that GCSB staff has been briefed on the use of XKeyscore, and that at least one XKeyscore terminal is located in New Zealand.

A Five Eyes 2010 guide explains that analysts can begin surveillance on anyone by clicking a few simple pull-down menus designed to provide both legal and targeting justifications. The analyst clicks on “Target has no reasonable expectation that communications will not be intercepted – not a private communication” and retrieves the data.

While the GCSB and the Inspector-General may possibly carry out audits of such searches, the GCSB Act does not compel either of them to make public any record of warrant-less interceptions, which are deemed to be lawful.

We know that the GCSB bungled the Dotcom case by unlawfully spying on a New Zealand resident. The Kitteridge Report identified legal non-compliance as the root cause of its failings.

New Zealander’s privacy and democratic freedoms will always remain under threat from non-compliance. But the real danger lies right under our noses in the revised GCSB Act, and in the exploitation of acknowledged loopholes which permit lawful warrant-less surveillance of New Zealanders.

The solution is clear. The GCSB must release its internal legal manuals, and the legal opinions it has received. The USA’s spy agency did so in November 2013. Carefully crafted semantics, denials and obfuscation from the GCSB and the Prime Minister will not suffice. Only when the public have seen the legal manuals and opinions can they judge whether or not the GCSB considers it has the power to lawfully spy on New Zealanders without a warrant.

 

Denis Tegg is a Thames lawyer with an interest in state surveillance and the erosion of civil liberties

20 COMMENTS

  1. And …..soooooo……. we have no authorities capable of overseeing this potential illegality ?

    Very strange….in times past laws containing loopholes damaging to a country’s citizens were perused , legal opinion sort out , and promptly amended….

    Could it be that we have a case of corrupt government here , Ladies and Gentlemen?

    John XKEYscore seems to think not…..

    I wonder….

  2. ^^^(VIDEO)^^^

    How that sneering, hissing, arrogant excuse for a man has managed to ingratiate himself to anyone is beyond me.

    Just LOVE the way he talks down to everyone in that press room with his feigned nonchalance.

    Fucker!

  3. Here’s an idea ? Fuck it all . Fuck technology . If the wankers can’t help themselves then they can go fuck themselves .

    I can remember BETTER days ! Yes , BETTER days without iwank and the interweb . I remember getting an actual letter , hand written and delivered by a postie . I can remember making a telephone call via wires strung along telephone poles . I can remember driving to pubs to talk to friends and when I was a bit pissed I’d drive home slowly , singing to myself in my 1948 Ford v8 pick up truck . ( It was an oldie when I owned it ) There were no cops in violent looking cars bearing down on me to fuck my life up . I never killed anyone but if I had ? So what ? It would have been an accident and accidents happen . Big fucking deal .
    The rarified lunacy that is ‘ modern living ‘ is a complete and total nightmare . We live in fear and apprehension , we live well below a level of comfort given how rich our country is and now we’re slowly being groomed for an invasion . A decolonisation . And if we get all uppity ? Snap goes the digital trap .
    A graphic example of how insane we’re becoming is in how we disregard the most important things in life . We sit in pubs and restaurants and gape at our wanky phones looking at trite gibberish while we have friends right there ! Right there for Gods sake . People who love you and want to be in your company and you’re paying some corporate fucker to take you away from the people who love you who sit right in front of you DOING THE SAME THING ? WTF ? That is madness . Truly . It’s a mental illness foisted upon us by those who know how to parasitise your time on this earth .
    We worry about being watched and listened to . We worry about whether some prick will know that we wank to internet porn . We worry that some dick will break into your emails to others who worry about the same thing . Then fuck them all . I say , turn the Interweb off . Just turn it off . Go outside and have a kick around with the kids, walk the dog , have a yarn with the neighbour, have afternoon sex with your partner. The internet can never be a substitute for those things . The internet is a hollow , time stealing device to make money for those others who know that . Turn it off . It’s that simple . And if you don’t think you can survive without it now ? Then you should have never , ever had it in the first place . Sounds like an addiction to me ?
    A life lived in fear is a life half lived so the saying goes . If you’re afraid of the internet ? Turn it off . If you’re afraid of jonky ? Get rid of him . Go to Wellington , Auckland or where ever the sociopaths rub shoulders and say . Johnky ? You’re fired .

  4. JK is playing with a bat that is wider than the stumps – while everyone else has to play with the regular size.
    It’s an endless frustration.
    That thudding sound you hear is a sizable proportion of the population banging their heads against the wall in despair of ever getting a coherent, clarifying or meaningful response to the surveillance question.

  5. “We have been repeatedly assured by the Prime Minister that the Government Communications Security Bureau (GCSB) cannot spy on New Zealanders without a warrant.”

    Who with half a brain would believe this Shoney so called leader.
    He is a compulsive liar, a tyrant, carpetbagger and Judas Priest.

    You are best served by believing the direct opposite of what this stool pigeon foreign installed agent is saying at any time.

    he does not deal in truth only false words and lies to deceive us all as he undermines our future with his promises of his gifts from bribes.

  6. There was a very interesting debate between Kathryn Ryan and Gavin Ellis on “Nine to Noon RNZ National” this morning . . . .

    http://podcast.radionz.co.nz/ntn/ntn-20150310-1146-media_commentator_gavin_ellis-048.mp3

    The earlier part of the discussion focuses on topics that have arisen (and questions that should have been asked by the MSM, but haven’t) as a consequence Key’s gross mishandling of the entire GCSB/Surveillance debate to date.

    In other words, Ryan and Ellis briefly discuss some of the very important issues in this debate that both the Prime Minister of NZ and the MSM have failed to air thus far.

    When ‘the great book of NZ political history’ gets written, the chapter on the John Key ‘prime-ministership’ will undoubtedly expose his tenure as PM as one of the darkest events in this nation’s entire political history.

    Arrogant, ignorance-based failure to keep the public informed is not a desirable trait any ANY leader; least of all in a “democratically” elected PM.

  7. No im not packing my bags to go and grease my mates overseas with a view of being the chairman of the world bank.

    I have told you!s we do not spy on you!s.We do receive data from others that do inform us who we should be concerned about,but we do not do that.

    Is not that like Johnny,the headmaster wishes you to go to his office,why.You were seen eating out this boys lunch box that was stolen,but i did not steal it,it was my friend who stole it.
    .

  8. Can anyone explain what is happening now that did not happen under the previous Govt.

    Can anyone provide a single shred of evidence that any NZ’er has been subject to a warrantless, unlawful spying in 2015.

      • When? Not in 2015.

        Martyn nothing has changed under this Govt from the last. You know this. Some of the people you are relying on a crooks. You also know this.

      • Hey Martyn,

        I thought Scarletmod banned Nehemia Wall for a week yesterday?
        Are they growing new legs?

        [Nehemia Wall has not been suspended. I have pointed out what is not acceptable. The same applies to everyone. – ScarletMod]

        • Sorry Scarletmod – I read it wrong as you said if you catch Nehemia Wall with offensive comments about Kim.com & Laila again you would send it to the naughty mat for a week, fair enough.

          Nehemia Wall says: March 8, 2015 at 9:02 pm [Rein it in Nehemia. Your comment about Kim Dotcom is defamatory, and your comment about Laila Harre is offensive. Any repeat of that will earn you a week on the naughty mat! – ScarletMod] – https://thedailyblog.co.nz/2015/03/08/nothing-to-hide-eh/#sthash.QPkX1uwc.dpuf

          [He’s on his last warning. – ScarletMod]

    • What is happening now is that our dominant partner in the 5eyes network, the USA has been proven to be a hegemonic, war mongering, selfish, militarised state that does not deserve our support or the benefit of any security information we can supply. This interview of Paul Craig Roberts outlines what a pariah state the USA has become
      http://www.paulcraigroberts.org/2015/03/08/ellen-brown-interviews-paul-craig-roberts-greek-russian-us-situations-history-explained-reagan-present/
      Key’s actions have all the hallmarks of someone who knows his position is dependant on being a good little boy for the USA and indeed may warrant some sympathy as standing up to the pressure from Washington must be extremely difficult.

    • Wall , Wall , Wall…do you not keep abreast of things?

      Pity help us all if your job was a detective or analyst….

      Your complete and abject failure to either interpret data presented or that which is right before you displays an enormous bigotry towards the truth and a total mis – comprehension and glaring contempt for the truth.

      It is interesting that this sort of syndrome by which you suffer from can be found in criminals unable to have any sense of wrongdoing towards their victims – indeed Goering displayed the same bald faced arrogance at Nuremberg.

      In case you had not noticed /kept up with the news /or deliberately chose to ignore current events to suit your twisted worldview…this country under this maggot ‘ P M ‘ has moved into one of its most dangerous , darkest and anti democratic era’s it has ever known.

      And the worst thing about all this is that it was not brought about by overt foreign invasion…it was brought about by deceit , guile , and subversion from within.

      And characters such as yourself – far from being an answer to that – are part of the problem in exacerbating the situation.

      One can only presume you have vested interests in this corruption.

      And Wall?…. you’ve been told before about the sheer hipocracy of defending mass surveillance ( and its illegality ) whilst continuing to come to this site and using a pseudonym.

      Put your money where your mouth is and show the courage of your convictions in your ‘ govt ‘ ….and get rid of that pseudonym.

  9. The definition of “private communications” is very likely a means by which the GCSB circumvents legal restraint on it’s activity. I suspect it is only one of the many methods used though. As well as this legal loophole there is the use of other countries intelligence agencies, subject to different laws, and information sharing which allow another back door way to spy on the communications of New Zealanders without warrant. The government has denied this, but they’ve denied a lot of things which have later been proven true.

    The list of ways that the GCSB, and their affiliated agencies, get around the law is long. What I find so concerning about all of this debate is that the legality of spy agency actions becomes the central focus, rather than the morality of their behaviour. It is this focus on whether what they do is legal that allows this sophistry to work, I believe it would be better to debate whether it is ethical.

  10. Another issue is that wholesale passing on of raw data to the NSA must be illegal. s.23 of the GCSB Act requires that irrelevant information must be destroyed (with a few specific exceptions in s.25) – this presumably must include incidentally obtained intelligence. So captured intelligence must be screened, and irrelevant information deleted, before it is passed on. Passing a data stream directly to another agency (eg by storing it on their servers) is contrary to s.23 and so unlawful.

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