Monday, September 30, 2013

Bad faith III

When we first learned that the GCSB had been illegally spying on New Zealand citizens, Privacy Commissioner Marie Shroff told them to ask for their file. But it turns out she was only joking:

“The Privacy Commissioner has upheld the GCSB’s ‘neither confirm nor deny’ response to people seeking to find out if they are among the 88 who were subject to illegal surveillance by the GCSB. This illegal activity has now been sanctioned by the Privacy Commissioner who has refused to require that the GCSB come clean and advise people if they have had their rights violated, allowing the GCSB to use the exceptions in the Privacy Act to cover up the systematic illegalities by this rogue agency.”

“Earlier this year, Marie Shroff encouraged ordinary people to come to her with complaints about the agency. She has done nothing but waste our time. Their so-called ‘oversight’ and ‘accountability’ is nothing but a sick joke.”

The law ties the Commissioner's hands on this, as it provides an exemption for disclosing even the existence of information which could "prejudice the security or defence of New Zealand". But the Commissioner presumably knew that back in April when she first urged people to ask for their records. Telling people to ask for something she knows they can never receive is acting in bad faith, and (as we're now seeing) undermines the reputation and integrity of the Commissioner.

But there's a complicating factor anyway: while the GCSB has an exemption to disclosure, this is also information they should never have in the first place. The GCSB's purpose is to intercept communications. But their governing legislation forbids them from spying on New Zealanders. So the GCSB were basicly being asked whether they had broken New Zelaand law. For any government agency to respond to such a question with anything other than an unequivocal denial can only be regarded as an admission of guilt.

As for the next step, lawyer John Edwards has previously suggested a class action against the GCSB. I support this approach. Drag the fuckers into court, expose their wrongdoing into disinfecting sunlight, and watch them wriggle and squirm. The Minister won't do it, and the "Inspector-General" certainly won't, so a BORA case to get discovery, followed by private prosecution of those implicated in wrongdoing, is the only alternative.