Friday, March 06, 2015

Depraved indifference

This morning's Snowden fallout: an admission from a top former-spy that yesterday's revelation was true:

This morning, former director of the GCSB Sir Bruce Ferguson told Radio New Zealand that mass surveillance was being undertaken in the Pacific, and it was "mission impossible" to eliminate New Zealanders' data from the collection.

"It's the whole method of surveillance these days - it's mass collection. To actually individualise that is mission impossible," he said.

You can listen to the full interview here, but two things stand out. First, Ferguson contends that this is legal, and that the 2013 GCSB Act amendments were designed to make it so. Reading the Act, this isn't obvious; s14 forbids the GCSB from doing anything "for the purpose" of intercepting New Zealanders' private communications, but also contemplates that they might be accidentally collected as "incidentally obtained intelligence" - which must be destroyed "as soon as practicable". But listening to Ferguson its clear that they don't do the latter, and in fact regard it as utterly impracticable to check their feed for such material so it may be destroyed (so they just pass it all on to the NSA, GCHQ, and fuck knows who else, and ask that their partners follow their rules when looking at it and not look at kiwis' data. Yeah, right). Which I don't think fits with kiwis' ordinary interpretation of the law or how it was sold to us as a safeguard; generally speaking, I think that if the law says "as soon as practicable", that's a clear command, and if there are problems, the government needs to make it practicable. They can't just engage in a clear course of action which will result in them conveniently not being able to do what the law commands them to.

Speaking of courses of action, its also clear that the GCSB is relying very heavily on "purpose" here. While they're collecting all this data on New Zealanders, its not for spying on us, but for spying on the whole Pacific (a policy which makes the legal requirement to minimise the impact of interception on third parties a bad joke. There are no "third parties" any more). But think about this: the GCSB, subject to a law which says "don't spy on New Zealanders", has deliberately chosen a course of action in which they know they will "accidentally" spy on hundreds of thousands of us (yes, that many. In 2013, 186,000 New Zealanders visited the South Pacific, excluding the Cook Islands. If you include them, its quarter of a million. That's almost 10% of the total population of the target area). Which shows a depraved indifference to our privacy (not to mention that of their Pacific victims).

(It also makes you wonder how far they're willing to stretch this purpose. can they spy on all internal NZ communications if its "only" done to intercept the communications of foreign terrorists? Its the same logic. How many kiwis caught in the dragnet is too many?)

The core problem here is that the law - and GCSB's nationality policy - is written for individual targeted collection. There's a person or a place (like an embassy) that you want to spy on, so you get a warrant for it, and if any kiwi happens to get in the way, you clean them out of it. But that's now how the GCSB does things, and it hasn't been for a long, long time. They do bulk collection, "full take", and the mindset is so ingrained that this morning Ferguson went so far as to outright deny that you could do targeted surveillance (someone better tell the police that their individually-warranted wiretaps based on individualised suspicion and probable cause don't exist). And this makes the law a farce which is no longer fit for purpose.

I'll repeat that: a law which in fact permits what it seemingly denies is a farce which serves only to obfuscate what the government is doing from the public. It is dishonest law. And it needs to be repealed.

As for the second point which stands out, it's Ferguson's response to Espiner's concerns about legality:
I don't think your concern is actually relevant

And that's the view of our spy agencies and the defence / foreign policy deep state in a nutshell. They've decided what's best for us, and what we think about it doesn't matter. These people need to be reminded that in a democracy, the people are boss. And the best way to do that is by sacking the whole fucking lot of them.