Below is my draft submission on the Government Communications Security Bureau and Related Legislation Amendment Bill. Submissions are due tomorrow (details here), so if you want to send in one of your own, be quick about it.
- I oppose the bulk of the Government Communications Security Bureau and Related Legislation Amendment Bill. I specifically oppose the expansion of GCSB powers in part 1 of the bill. I cautious support the amendments to other acts in parts 2 and 3 of the bill. Finally, the bill is an excellent opportunity to improve the transparency of intelligence oversight in New Zealand by bringing the Inspector-General of Intelligence and Security and the Intelligence and Security Committee under the coverage of the Official Information Act 1982.
Amendments to the Government Communications Security Bureau Act 2003
- I oppose the amendments to the Government Communications Security Bureau Act 2003 in the bill and ask that they not be passed.
- The primary effect of the amendments to the GCSB Act in the bill is to broaden the powers of the GCSB and allow it to spy on New Zealanders. This is unjustified and a threat to democratic freedoms.
- The supposed justification for these amendments is that the law is "unclear". This is incorrect. Section 14 of the Act is crystal clear: the GCSB is barred from intercepting the communications of New Zealanders. And as the Hansard of the debates when the Act was passed makes clear, that was the clear intent of the government and of the House. The fact that the GCSB has ignored the law is not a good reason to change it.
- The revised interception powers in section 14 of the bill apply not just to foreign intelligence-gathering, but also to information assurance and cyber-security. The justification for the latter is weak. According to the bill's Regulatory Impact Statement, they are required in order to prevent cyber-crime (identified as "cyber-borne frauds and scams") in order to "allow the GCSB to see who (namely New Zealand individuals and companies) is being attacked". This is a disproportionate response, akin to the police sticking hidden cameras inside everyone's house in order to detect burglars.
- The new interception powers are broader than the existing ones, applying not just to specific persons or places, but to classes of persons or places. As written, they would allow GCSB to obtain a warrant applying to "all members of Greenpeace", or to all ISP email servers.
- Recent revelations from the USA about widespread surveillance by their National Security Agency on domestic telephone metadata and on internet user data in cooperation with major internet companies such as Apple and Google invites suspicion that the GCSB could engage in similar behaviour. Under the bill, this would be completely legal. Given the level of secrecy involved, the best way to prevent such suspicions is not to grant the powers in the first place.
- Finally, I am concerned about the new objective of the bureau in section 6 of the bill, which includes "the economic well-being of New Zealand". In an environment where the government denounces critics of its policies as being guilty of "economic sabotage", extending the GCSB's ambit to encompass economic security while giving it domestic spying powers invites suspicion, and can only have a chilling effect on political discourse.
- Government surveillance, or the potential for government surveillance, has a chilling effect on political expression and a corrosive effect on social relationships between citizens. It must be kept to an absolute minimum if we are to remain a free and democratic society. No justification has been provided for these powers, and therefore they should not be granted.
Amendments to other Acts
- I support the amendments to the Inspector-General of Intelligence and Security Act 1996 and Intelligence and Security Committee Act 1996 and ask that they be passed.
- The Inspector-General of Intelligence and Security has a significant credibility problem and is widely viewed as a toothless rubberstamp. While I do not believe the changes in this bill will lead to much improvement, they have the potential to do so, and so I support them.
- The changes to the Intelligence and Security Committee are mostly housekeeping but could slightly strengthen the committee. However real change will only come from the committee members taking a robust and proactive view of their role in overseeing New Zealand's intelligence agencies.
Increasing transparency
- I also ask that while Parliament is revisiting the Inspector-General of Intelligence and Security Act 1996 and Intelligence and Security Committee Act 1996, it add both the Inspector-General of Intelligence and Security and the Intelligence and Security Committee to Schedule 1 of the Official Information Act 1982.
- The Inspector-General of Intelligence and Security performs a watchdog function over the SIS and GCSB. While they report annually to Parliament, these reports have been difficult to obtain, and there is little real information available about their work. Public confidence in their role would be improved by more openness.
- The Committee is a government body, but it operates totally in secret. Confidence in its work (and hence in the New Zealand intelligence community as a whole) would be increased if the public were able to learn such basic facts as how often it met and whether it considered any matters beyond the annual reports of intelligence agencies (that is, whether it was providing robust and proactive oversight) without having to depend on the grace and favour of the Prime Minister.
- The agencies the Inspector-General and Committee are responsible for - the SIS and GCSB - are both themselves subject to the OIA. The OIA contains a conclusive withholding ground for information likely to the security and defence or foreign relations of New Zealand, and this is sufficient to protect any such information either may handle.
- I do not wish to appear before the committee.
