Sunday, July 28, 2013

A point that needs making

Today, we learned that the NZDF had been spying on a kiwi journalist in Afghanistan in an effort to prevent political embarrassment. But John Key's spy bill would let them do the same thing right here in New Zealand. Don't believe me? Let's look at the law.

Firstly, the bill's new section 8C gives the GCSB the explicit role of cooperating with the NZDF. This cooperation is limited to "activities that the entities may lawfully undertake", and here its worth noting that the NZDF has no statutory authority under any enactment to intercept private communications (unless it is one of "the inherent powers of search exercisable by commanding officers under service custom", but they certainly have no power to do so under the Search and Surveillance Act 2012, not being "enforcement officers" for the purpose of that Act). But NZDF weren't spying on Stephenson's communications, they were spying on his metadata. While there's no statutory authorisation for that, there's also no statutory prohibition either - something the Police at least seem to have regard as carte blanche, and which the GCSB's stooge Inspector-General regards as "arguably" legal.

Still, they'd need a legal purpose for such interceptions. And they have one: the Armed Forces Discipline Act 1971 prohibits members of the NZDF from (among other things) unauthorised disclosure of information and creating alarm or despondency. NZDF personnel providing information to journalists could be accused of such crimes, the investigation of which is an activity NZDF may lawfully undertake. Meaning GCSB could spy on their behalf.

Yes, it sounds tenuous. But if we accept that the GCSB is subject to no controls in its spying on metadata for the police's criminal investigations, then this is where we end up.

All of which highlights the crucial role of metadata, and the problems which leaving it out of the law create. Parliament desperately needs to fix this. Failing to do so leaves the door open for domestic military spying - an anathema in a democracy.

(Of course, there's also the SIS, who can spy on "subversive" investigative journalists with total legality, despite it being a gross breach of the democratic principles they supposedly exist to defend. But I take it as given that they are anti-democratic thugs who need to be destroyed. I think all of us expect better from the NZDF).