Friday, November 16, 2012

A worrying answer

Back in September, when it was revealed that the GCSB had been unlawfully spying on Kim Dotcom, I wondered aloud how often they do police work. Thanks to subsequent reports, we've now found out: 58 times in the past three years, 3 of which are of dubious legality. Now thanks to FYI, the public OIA request site, we have more information [PDF]. And its slightly worrying.

The GCSB performs its functions under section 8(2)(c) of the GCSB Act at the request of other agencies. In the past year (since September 2011), preliminary figures indicates that the GCSB has performed these in respect of 16 operations. Unfortunately the compilation of the data is taking longer than initially envisaged. GCSB will be able to provide a confirmed figure in the coming weeks.

(Emphasis added)

So, firstly, GCSB has only a hazy idea of how many times it spies for the police. No matter what you think of that spying, given the powers involved and the need for them to have an absolute legal justification for them, that should be deeply worrying. But secondly, there's the worrying admission that these powers are exercised at the request of other agencies. The way the Act is structured strongly suggests that they're not meant to do this. Interception powers are limited to foreign communications, and the interception of domestic communications is forbidden. They can pass on information related to serious crime if they happen across it while intercepting for foreign intelligence, but they can't intercept communications in New Zealand to go looking for such information. They're a foreign intelligence agency, not a domestic law enforcement one.

We also need to look closely at the police end of this. For very good reasons, police spying powers are highly restricted. But they appear to be using GCSB to do an end-run around those limits. And that is not something we should accept or tolerate.