Tuesday, March 10, 2015

Collection, surveillance, and interception

Back in 2013, John Key promised he would resign if there was mass-surveillance of New Zealanders. Now that the former head of the GCSB has admitted that there is mass-surveillance, which includes New Zelaanders, he's changed his mind. His reason? Because he's "sure the lawyers would tell you there is a difference" between mass-surveillance and mass-collection. At this stage, we should all remember John Key's view of lawyers: "I can provide you with another one that will give you a counterview", and this morning he's reportedly not even sure what the word he was hiding behind yesterday means anyway, but it doesn't matter. Because firstly, from a targets point of view, there's no difference whatsoever. Just as with public security cameras, it doesn't matter whether someone is watching them right now; what's important is that a) you know you're being watched; and b) they can look at the data whenever they want. And that's the case with the GCSB's spying on kiwis in the Pacific, regardless of what word games the Prime Minister plays.

But more importantly, none of it legally matters. Because the GCSB Act doesn't talk about "surveillance" or "collection" - it talks about "interception". What's "interception"?

intercept includes hear, listen to, record, monitor, acquire, or receive a communication, or acquire its substance, meaning, or sense

Its a pretty expansive definition, which covers not just the traditional ideas of someone sitting there with a pair of headphones while you're on the phone, but also recording it for later use, acquiring it from a foreign "partner", or even just being given a summary. They don't have to look at it - simply recording or acquiring it is enough. And it applies to any communication whatsoever, whether phone calls or internet or Morse code.

It is clear from what we've seen so far and what has been admitted that there is mass-interception across the Pacific. Because of the method - "full-take" - that mass-interception necessarily includes the private communications of New Zealand persons. The scale of that interception seems to be well beyond a level where it could be considered "incidental", and to piss on the legal requirement to minimise impacts on third parties. John Key was the Minister in charge of the GCSB at the time, and he still holds overall responsibility through his national security portfolio. The buck for this stops with him, and its time we held him accountable for what the spies have done under his watch.