Well, well, well – Kim Dotcom was right – here is the mass surveillance…
New oversight report critical of spies and highlights legal ‘gap’ in GCSB practices
Our spies have been pushing the boundaries of a new law meant to provide greater detail and oversight, according to their oversight body.
Concerns include the possibility the powerful electronic spying agency, the Government Communications Security Bureau, is scooping up information including that which belongs to New Zealanders without the proper legal authorisation.
Inspector-General of Intelligence and Security Cheryl Gwyn issued a report today harshly critical in many regards as to how the GCSB and NZ Security Intelligence Service are meeting the demands of the Intelligence and Security Act.
The new law came in last year after a government review of our spies’ legislation.
It provided greater powers to some of our agencies – the caveat against the GCSB spying on New Zealanders was dropped – but also demanded greater transparency when the NZSIS or GCSB sought warrants to legally approve surveillance.
A year after the new law was passed, Gwyn was still in the dark over whether she and our electronic spy agency are even talking about the same thing.
Warrants are sought for activities including surveillance on people and places, intercepting private communications, secret searches of places or items and asking foreign governments to undertake activities which would be against the law for the GCSB or NZSIS.
It is part of Gwyn’s job to review every warrant issued to the agencies allowing spying to take place. Under the new law, she and the agencies have had to decide what the wording of the legislation means and how it fits with the work they want to do.
Gwyn’s latest report covers nine months and 40 warrants and shows the spies have interpreted the demands of the law quite differently to the way their oversight body has done.
Her greatest criticism was reserved for the GCSB, which engages in international intelligence interception and sharing with New Zealand’s “Five Eyes” partners – Australia, Canada, the United Kingdom and the United States.
She said there was a level of uncertainty over what the GCSB was doing under the new law which was “unsatisfactory” after a year.
“On some matters there is inherent uncertainty as to the meaning and implications of key legal provisions, but on several matters I am uncertain even as to whether we have the same or a different view of certain specific matters of legal approach.
“The Bureau continues to put forward warrant applications that reflect legal interpretations, policies and drafting practices I have questioned.”
Among her concerns was GCSB spying which picked up New Zealanders’ information as a byproduct. Her office’s report on the GCSB’s surveillance of the South Pacific showed New Zealanders’ data was scooped up along with those who were targets.
She said the GCSB believed it did not need a warrant to do so while she believe it did.
“In plain terms I think that if the bureau knows it is likely to get New Zealanders’ communications along with the foreign communications it wants, and deliberately goes ahead on that basis, it is intentionally doing a ‘thing’ directly in relation to New Zealanders.”
Gwyn said she believed the GCSB’s interception of communications which included incidental collection of New Zealanders’ data was not covered by the law.
“The bureau’s approach creates a gap, in my opinion, in the legal authorisation of its activities.”
She said if her view of the law was correct then those authorisations should be at a higher level and require greater levels sign-off beyond simply the agencies’ minister, Andrew Little.
Other concerns included the GCSB making broad warrant applications to spy on groups – of “classes” – of targets.
She said the degree of appropriate intrusion varied according to the privacy cost and the value of intelligence which was difficult to measure “if a class of targets was so wide or loose that it was impossible or very hard to tell with any certainty who would and would not fall within it”.
…I love how they can create entire ‘classes’ of people to spy on…
Gwyn also had “serious reservations” about the GCSB’s practice of cross-referencing one warrant with another, which made it difficult at times to be clear about what was being spied on and why.
Gwyn said she was also concerned about the degree of detail provided by the NZSIS with the agency pitching warrant applications at a broad level for greater intrusion.
The focus of the warrants appeared to be more concerned about “potential adverse impacts on foreign relations and the agencies” if “covert activities were discovered or disclosed” rather than the rights of those subject to spying.
Gwyn said she believed the NZSIS was obliged to provide greater levels of detail in warrant applications for those approving surveillance.
Instead, it produced cookie-cutter applications with “explanations that varied little from one application to another”.
She said the NZSIS position was “untenable given the clear legal language on those matters and the express statements of policy intent” behind the new law.
Gwyn said the NZSIS was slow to make changes and showed a “degree of reluctance” on some issues.
Issues arose around the degree of detail included in NZSIS warrants, with Gwyn saying lawmakers specifically intended the agency to be specific about its agents’ intent.
Instead of saying what it would do, the NZSIS would describe what it could do, she said.
…I have always argued that the oversight of the GCSB and SIS was meaningless because once these agencies could start legally spying on New Zealanders wouldn’t care what the Inspector-General of Intelligence and Security had to say anymore than state agencies care what the Ombudsman has to say.
The second these agencies gained power they were immediately trying too abuse and push the meaning to the very edges of the law. This toothless watchdog can bark all she likes, but these agencies are now a law unto themselves.
YOU allowed this to happen muddle Nu Zilind. YOU allowed John Key to get away with building a mass surveillance state. YOU now have to live with the consequences of that madness.
Are you feeling safe yet sleepy hobbits?