Friday, September 27, 2013

A senile watchdog

The outgoing Inspector-General of Intelligence and Security, Paul Neazor, released his annual report to Parliament a couple of weeks ago. Despite this being an unclassified statutory report, it was not made available publicly on the web. Fortunately someone in Parliament provided me with a copy [PDF]. It makes interesting reading.

Most interesting is the tacit admission that the GCSB broke the law while working for the police:

The first group related to requests, principally by the Police, for assistance by the bureau. The question then was whether in my opinion the Bureau's determination that targets were not New Zealand persons (and therefore not protected against interception) was reasonable. In all but three of the cases I was of the view that the determination was reasonable. In the three cases only foreign sources of calls was sought and no content was sought.

Parsing that, in three cases the GCSB intercepted the communications of New Zealanders. This was, of course, illegal.

So why isn't the Inspector-General raising hell about this and initiating prosecutions? Because as he makes clear when discussing the cases of the 88, he doesn't think metadata is a "communication":
Some attention has been focused on whether under the Act the collection of metadata as described should be regarded as the interception of a communication. I am not satisfied from reading the whole Act that it should be.

To see why this is so wrong, you have only to read the Act's definitions:
communication includes signs, signals, impulses, writing, images, sounds, or data that a person or machine produces, sends, receives, processes, or holds in any medium


intercept includes hear, listen to, record, monitor, acquire, or receive a communication, or acquire its substance, meaning, or sense

When I dial a phone number, my phone sends a signal to the phone company's exchange, which then hopefully connects me with the other phone. Whether GCSB directly pulls that off the line, or are given it by the phone company in accordance with some secret deal, it is a "signal... [that a] machine produces" - a "communication" - which they are acquiring or receiving - "intercepting". When my cellphone rats me to the tower, that's also a "signal... [that a] machine produces". Ditto if I had a cellphone with GPS in it (I don't). Call durations are the time difference between two signals etc. And if the GCSB acquires any of this in any way, then they are "intercepting" a "communication".

The Inspector-general's report makes it crystal clear that he cannot interpret the legislation he is supposed to be overseeing - and as a result, abuses of the privacy and rights of new Zealanders (and the law of New Zealand) are going unpunished. I am extremely glad he has finally been put out to pasture.