Tuesday, March 11, 2014

Did the NSA write John Key's spy bill?

NSA whistleblower Edward Snowden gave evidence to the European Parliament last week about the NSA and mass-surveillance. The most interesting revelation? The NSA's use of lawyers to subvert other countries limits on surveillance - including out own:

One of the foremost activities of the NSA's FAD, or Foreign Affairs Division, is to pressure or incentivize EU member states to change their laws to enable mass surveillance. Lawyers from the NSA, as well as the UK's GCHQ, work very hard to search for loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance operations that were at best unwittingly authorized by lawmakers. These efforts to interpret new powers out of vague laws is an intentional strategy to avoid public opposition and lawmakers' insistence that legal limits be respected, effects the GCHQ internally described in its own documents as "damaging public debate".

In recent public memory, we have seen these FAD "legal guidance" operations occur in both Sweden and the Netherlands, and also faraway New Zealand.

[Emphasis added]

So what did GCSB receive "legal guidance" on? Was the secret interpretation of the old law, under which they asserted that metadata wasn't a communication and so spying on it was lawful, concocted by foreign spies? What about the careful loopholes in the new Act, which allow them to claim the same thing, or conduct mass surveillance for "cybersecurity"? Was John Key's spy bill really written in Washington, DC?

We need answers on this. And we need protection. The most obvious method is to make the GCSB publish their legal advice, so that we know how they interpret the law, what they believe they are allowed to do, and whether that matches what Parliament and the public think they are allowed to do. They won't want to do that, of course - and in an environment of secrecy, that can only be interpreted as trying to hide a new "interpretation" to allow unlawful spying.

As for why the NSA is so keen on this, here's Snowden again:
Once the NSA has successfully subverted or helped repeal legal restrictions against unconstitutional mass surveillance in partner states, it encourages partners to perform "access operations." Access operations are efforts to gain access to the bulk communications of all major telecommunications providers in their jurisdictions, normally beginning with those that handle the greatest volume of communications. Sometimes the NSA provides consultation, technology, or even the physical hardware itself for partners to "ingest" these massive amounts of data in a manner that allows processing, and it does not take long to access everything.
And the ultimate goal is for NSA to be given access to that. Of course, they promise not to spy on citizens of the agency which grants them access, but those promises are unenforceable, and in the EU they can often get around it by using one country to spy on another in violation of their agreements with both.

This is what the NSA wants to do to New Zealand. And John Key has just given them a law which enables them to do it. Sure, he's promised that there's no "wholesale collection", but its worth noting here that the NSA doesn't consider information is "collected" until an actual human reads it - so they can spy on everyone, while denying doing it. The GCSB could be playing similar word-games here. And we won't know, unless we force the publication of their legal advice.