Tuesday, August 16, 2016

Against anti-whistleblower laws

Yesterday the government introduced new spying legislation into Parliament. The new law would enable the GCSB to engage in the mass-surveillance of New Zealanders while granting the SIS even more power to lie, cheat, and break into people's houses. But it also has another unwelcome feature: an anti-whistleblower provision. The proposed new section 78AA of the Crimes Act would impose a five year jail term for passing on, retaining, or refusing to return "classified information". And it would apply this penalty not just to government agents who hold that classified information in the course of their jobs - but to anyone who has ever held a security clearance, and over all classified information whether or not they've ever seen it before.

To give an idea of what this means in practice, a large number of public servants hold security clearances in the course of their work. MPs and Ministers automatically hold such clearances. Various people in the IT sector can be required by the GCSB to obtain a security clearance in order to keep their jobs. And this law would see all of them thrown in jail for five years for reading the Guardian, the Intercept, or any other news site which regularly publishes stories based on leaked government data (in other words, any news media worthy of the name).

Its a ridiculous overstretch, effectively an attempt to re-impose the long-repealed Official Secrets Act. It's also obviously incompatible with section 14 of the Bill of Rights Act, which affirms freedom of expression, including the right to impart and receive information. While the protection of (some) classified information may be an important public purpose, this measure is neither rationally linked to that purpose, or proportionate to it. Reading someone else's leak should not be a crime.

It is also of course completely unnecessary. We already have laws imposing confidentiality on spies (which are replicated in section 177 of the new bill), and we already have laws which criminalise the passing on of information which will harm "national security". The difference is that that law requires that real harm be likely and intended. Clearly, the spies feel that that is too high a threshold, and that their classification decisions should be exempt from factual scrutiny and impose penalties in and of themselves. It is our job as citizens to rein them in.

Meanwhile, if you are asked to gain a security clearance for your employment, you should refuse. Holding a security clearance exposes you to the whims of the spy agencies and allows them to fuck up your life at any time in the future if they ever want to. The safest way to protect yourself from such threats (other than campaign to disband those agencies) is to refuse to have anything to do with their bullshit.