Cullen and Reddy don’t make a convincing case for the spy agencies

In my submission to the Intelligence and Security Agencies Review I questioned the need for spy agencies, arguing that any positive functions they have could be better covered by other existing state agencies.

Criminality (politically motivated or not) is already addressed by the New Zealand Police, and it has powers, under warrant, to intercept communications. The Police are not short on intelligence from overseas agencies on trans-national crime, including terrorism.

In their report released last week, reviewers Sir Michael Cullen and Dame Patsy Reddy admit that the Police and Customs collect confidential intelligence in relation to criminal behavior, but argue that the spy agencies have a broader mandate than the Police, having “a responsibility to identify potential threats before they become events of security concern.” But surely the Police intelligence units, with their connections overseas, already gather information on “potential threats” when these have a criminal dimension.  The spy agencies do not have a good record on detecting criminality.  Not once in their entire history have we heard of the SIS and GCSB providing the key evidence in a criminal trial leading to a conviction.

Cullen and Reddy’s elaboration of threats to “national security” goes well beyond unlawful behavior to include such vagaries as threats to “international security”, threats to “New Zealand’s economic security or international relations”, and the threat of “foreign interference”.

It is this intrusion into non-criminal sphere that makes the spy agencies so dangerous. Take for example the GCSB spying on Brazilian government communications, disclosed in the Snowden papers, in an unsuccessful attempt to give our Trade Minister Tim Groser the edge over Roberto Azevedo in the race to be director-general of the WTO.

Our neo-liberal government would be quite comfortable that the GCSB’s help for Tim Groser’s campaign was in the interests of “international security” or “New Zealand’s economic security or international relations.” New Zealand critics of neo-liberalism (of which there are many) would argue the opposite.

“Foreign interference” is also a nebulous concept in the era of globalization. Take the debate over the Trans-Pacific Partnership Agreement. The New Zealand government was subject to “foreign interference” by both the corporate globalisers (who supported the TPPA) and an Asia/Pacific NGO coalition (who opposed the Agreement). The Snowden papers give a hint of which side the Five Eyes network (of which the GCSB is a part) would be spying on. The Five Eyes agencies wouldn’t be spying on those Asia/Pacific governments and corporates backing the TPPA.

But what do we do when foreign government’s spy on the New Zealand government? Firstly, the problem seems to be largely the other way around, with the Snowden papers showing that the GCSB has spied (for the Fives Eyes) on a host of governments in the Asia/Pacific, much to the chagrin of those governments. Of those government, only China would have the both the capacity and inclination to spy on New Zealand. Secondly, how many state secrets does New Zealand have that would be of much use to a foreign government? We are a pretty open society.

If there is any current threat it is the foreign governments, firms or individuals hacking into our company computers and stealing their intellectual property. Cullen and Reddy note that several submissions (including my own) pointed to a conflict of interest between the GCSB’s cybersecurity function (protecting computers) and its intelligence function (weakening computer security to allow the spy agency access). This conflict is illustrated by the current efforts by the US government to weaken Apple smartphone security to allow the FBI entry.

The best way out of this confict of interest is for the government’s cybersecurity unit to be independent of the GCSB and any relevant GCSB personnel and equipment to be transferred to the new unit.

However, the government will resist such a development because its main “selling point” for the GCSB is the agency’s cybersecurity function. Its other selling point is the GCSB’s counter-terrorist function. However, there is no evidence the GCSB adds much value here. The Police can adequately handle the low level of threat from terrorism, assisted by intelligence reports from other nations.

Cullen and Reddy do go part way toward recognising the need for an independent cybersecurity unit, praising a proposal to set up a national Computer Emergency Response Team (CERT) outside the GCSB.

The Cullen/Reddy report argues that spy agencies are essential information gatherers to enlighten our government on “the broader security context and New Zealand’s international and economic interests.” I was surprised at that because I thought that this was the role of the Ministry of Foreign Affairs and Trade. It’s funny how MFAT is left out of the picture. This Ministry has a lot of weaknesses, but do the spy agencies really add much to government’s understanding of the international situation? I haven’t seen any evidence of it. A few more Ministry experts checking out the international demand for milk – to give farmers a more accurate prediction of the milk price – would contribute more to our economic security than a few extra spooks.

Do we really need an SIS and a GCSB, restructured or not? What is wrong with leaving the collection of intelligence on crime to the Police, and intelligence gathering on world trends to the Ministry of Foreign Affairs and Trade.

[There is a lot more in the Cullen/Reddy eport that I haven’t dealt with, including agency restructuring proposals that will enable more electronic surveillance of New Zealanders. I may pick up some of these issues in subsequent blogs.]