Friday, July 05, 2013

What can be done about the GCSB?

Wednesday's select committee hearings on the spy bill produced a number of suggestions for amendments to the GCSB's legislation, including treating metadata as communications and a ban on transferring data about New Zealanders offshore. These are excellent proposals, but there is one problem with them: we cannot trust the GCSB to obey the law.

Look at what we already know about this agency's behaviour. In 2003, Parliament gave them a clear prohibition on intercepting the communications of New Zealanders. They ignored it, "reinterpreting" the law to permit what it clearly banned and relying on secrecy to prevent anyone from challenging their opinion. And we only learned they were doing this because the police were caught out lying under oath to cover it up.

If we impose further limits on the GCSB, they will simply do the same thing again: "reinterpret" the law, then ignore it. And next time, we won't have clumsy police officers to alert us to their abuses.

What can we do when an agency has so utterly forfeited the public's trust? There are only two options. The first is radical transparency, so we can all see that they are obeying the law. This means some serious reporting by them and their Minister of exactly what they are spying on and how, so its legality can be publicly assessed. It means annual reporting to Parliament, on pain of contempt, of how many warrants are issued, for what purpose, how much data is collected and who it is given to. And it means command responsibility with tough criminal penalties for the Director, so that they will have an incentive to ensure their agency obeys the law and respects our privacy and human rights.

The spies will find that unpalatable. Tough. Because the only other solution is that we disband the GCSB and prohibit the government from establishing anything to replace it. No collection of foreign signals intelligence in peacetime. No intelligence links with other countries whereby our spies can spy on us by the back door. No transfer of any intelligence or law-enforcement material to any foreign power. Burn it all down and salt the earth.

If we can't trust our spies not to go rogue, we cannot have spies. Its that simple.