The Inspector-General of Intelligence and Security released their annual report today. And it contains some rather worrying revelations about the SIS and their efforts to circumvent the restrictions on their use of intelligence warrants. When the government rams through new spy powers (typically under urgency, with no public input), it tells us that they are subject to oversight and therefore cannot be abused. But it turns out that the SIS is systematically evading that oversight. Which invites the natural conclusion that they are engaging in systematic abuse - otherwise, why bother to evade?
And this isn't over little things - its about intelligence warrants, the core of their legal powers. An intelligence warrant allows a spy agency to do something illegal to collect intelligence. Typically that's intercepting phone calls or internet traffic, or burgling somewhere to plant bugs or copy or steal documents. And when they do something like that which might affect a kiwi, they need to ask other people: both the Minister (who is a rubberstamp) and the Commissioner of Intelligence Warrants. These warrants are also reviewed after the fact by the inspector-General, who tends to be a lot more critical in their assessments than either of the other two.
Or at least, that's how it used to work. But John Key's spy law, passed in 2017, fundamentally changed the warrant system. Previously, SIS warrants had to be about a particular individual, and required particularised suspicion. Now, they can be about a "class" of people, and require only a generalised suspicion. Whether a particular person falls into the target class is up to the agency, and there's no external review of that. So of course the SIS is doing everything under class warrants, despite the fact that they are almost always targeting particular individuals:
NZSIS investigations are often focused on particular individuals. Over many years of producing individual warrant applications the agency became proficient at putting together ‘intelligence cases’ in warrant applications for intrusive surveillance of specific targets. Such applications are now disappearing. They are being replaced by applications for warrants against classes of persons defined in terms of the NZSIS having assessed them as threatening national security. It has become apparent that a class warrant can be drafted to cover any NZSIS investigation, no matter how closely it might be focused on a particular person. With a relatively small set of class warrants in place, an individual coming to the attention of the Service may be assessed as coming within an authorised target class (a class possibly approved months beforehand). That person may then be put under surveillance, potentially up to the maximum possible level of intrusion (if that is what the warrant allows), without their existence or any intelligence on them having been presented to anyone outside the NZSIS. That is obviously convenient for the agency. I seriously question whether it is consistent with the concept of a warrant as a safeguard for the rights of anyone prospectively in the sights of a state security agency.Translation: the SIS's use of class warrants is undermining the entire oversight regime, and the entire concept of warrants as a safeguard.
The Inspector-General apparently has a report in the works about a particular class warrant, questioning whether it was lawful or proper. It will be interesting to see what comes of that, and whether the supposed safeguards in the law mean anything, or whether everything our politicians tell us about restrictions on the spies is just lies, and that the entire legal regime is designed to hide the fact that there are no effective restrictions on their activities. Meanwhile, people might want to consider whether an agency which systematically and repeatedly attempts to circumvent and undermine its own legal oversight regimes can ever be trusted, and whether it should be allowed to exist at all.
