Monday, March 09, 2015

Massively disproportionate

Over the weekend, a second dump of Snowden documents revealed exactly what was going on at Waihopai, and that the GCSB is spying on the Cook Islands and Niue:

The people of both these tiny nations are New Zealand citizens, and the GCSB is legally barred from eavesdropping on New Zealand citizens' phone calls and emails except under a warrant.

However, a United States National Security Agency document, which explains GCSB targeting rules to US spies, says: "Note: The governments of Cook Islands and Niue may be targeted, but not their citizens since they are entitled to hold New Zealand passports."

The exception is made to allow spying on all Cook Island and Niue politicians and public servants, even though they too are New Zealand citizens.

While I don't like it - the Cook Islands aren't just our friends, they're family - there's no question that spying on members of these two governments is legal. The GCSB Act bans spying on New Zealanders "unless (and to the extent that) the person comes within the definition of foreign person or foreign organisation". What's a "foreign organisation"?
a Government of any country other than New Zealand [or] a person acting in his or her capacity as an agent or a representative of any Government, body, or organisation referred to in any of paragraphs (a) to (e)

So, section 14 doesn't apply, and the governments of our cloest allies are fair game for spying even though everyone involved is a New Zealand citizen.

But there's a bigger legal problem. On Friday, former GCSB head Bruce Ferguson admitted that the GCSB doesn't do targeted surveillance anymore, and all it does is mass surveillance, spying on whole countries to get the information they ask for. What does that mean in practice? Let's look at the numbers for the Cook Islands. The Cook Islands has approximately 1,100 core public servants, or ~450 if you exclude the doctors and teachers. Throw in 50 MPs and Parliamentary support staff, and you have a total target group of about 500 people. And to acquire intelligence on them, the GCSB spies on the phone calls, emails, and web traffic of 10,000 Cook Islanders and the 70,000 New Zealanders who visit them each year. Every one of which is a New Zealand citizen. They spy on tens of thousands of New Zealand citizens in order to capture intelligence from the 0.6% of them who are legal targets. Whatever way you look at it, its grossly disproportionate.

But it may also be illegal. Section 24 of the GCSB Act requires the GCSB to
take all practicable steps that are reasonable in the circumstances to minimise the likelihood of intercepting communications that are not relevant to the persons whose communications are to be intercepted.

Their chosen collection method - mass surveillance, "collect it all" - pisses on this law. Again, its a depraved indifference to our privacy and a depraved indifference to the law. And the only way to end it seems to be to shut this agency down permanently.

Meanwhile, if any MP wants to protect New Zealanders in the Cook Islands and Niue from GCSB spying, I have a members bill for you.