Tuesday, June 14, 2016

Who ordered that?

The government announced a new regulatory regime for rocket launches today, to provide a regulatory framework for Rocket Labs expected launches. Its what you'd expect - launches and payloads must be licenced, there's a security regime based on the Civil Aviation Act to keep people from wandering onto launch sites etc - and you'd expect it to be fairly uncontroversial. But digging into it, there are a few odd bits. Firstly, launches will be reviewed by the SIS and GCSB, who can veto them. That's expected - the security agencies have an interest in space, and presumably they don't want some nefarious country to launch anything from New Zealand we would object to. But the interesting bit is the appeal regime: if a launch is vetoed, all you can do is complain to the Inspector-General of Intelligence and Security. And even if they find against the spies and issue a formal finding, the spy agencies don't have to act on it, but "may" withdraw their objection. So its absolutely toothless. Interestingly, the entire section on "dealing with national security issues in court proceedings" has been censored from the relevant Cabinet paper, but we know that their inability to win in a court where they are actually required to present testable evidence is a sore point for the spies; hence the restriction of appeals to their pet, secret "watchdog".

But the other odd point is the Minister's ability to declare a "debris recovery area" for locations of space accidents. There's a legitimate purpose for this - space debris is often dangerous, and you don't want people grabbing it and selling it on Trademe. But the law also criminalises taking any photograph or image of anything in such an area, on pain of six month's imprisonment. So, they don't just prohibit photgraphing fallen space debris, but also photographing the landscape, your lunch, or even yourself.

This is an absolutely unprecedented power and an obvious prima facie violation of the BORA's affirmation of freedom of expression. The government does not criminailise photography in general in places even to protect national security (e.g. it is not in general illegal to take photographs on an NZDF base or SIS or GCSB facilities), and there's absolutely no power to prohibit publication. If you can get hold of photos of the GCSB's sensitive satellite interception technology, you are absolutely free to publish them (and the most the government can do is ask you where you got them). The closest provision I can find to it is a power in the International Terrorism (Emergency Powers) Act 1987 which permits the Prime Minister to prohibit publication or broadcasting of certain matters relating to international terrorist emergency - a power which predates the BORA and is tightly restricted both in content and in timeframe. Only photos of emergency personnel and images and descriptions of sensitive equipment or techniques can be prohibited,and the prohibition only lasts for a year. It must be notified in the Gazette, and as far as I can tell, the power has never been used.

So who ordered a broad, untargeted, unprecedented restriction of New Zealander's freedom of speech rights? The Americans, of course:

The draft [Technology Safeguards Agreement with the US] places obligations on New Zealand to ensure that, in the event of a launch failure or accident, measures are taken to protect US technology. These measures include designating a "debris recovery site" controlled jointly by US participants... and ensuring that components or debris are not studied or photographed in any way, except as required by the laws and regulations of New Zealand.

That Cabinet paper then goes on to assert that:
The proposals in this paper are consistent with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

Which is simply bullshit. Restricting the freedom of expression of New Zealanders to protect the commercial and national security interests of a foreign power cannot possibly be justified under the BORA. It is highly questionable as a public purpose, and its absolutely disproportionate as a measure to protect that purpose. While the US may desire absolute secrecy over its Super-Sekret Rocket TechnologyTM, that's nothing to do with us. Insofar as there is a legitimate New Zealand national security interest in prohibiting the photography of space debris, that is already properly covered by the Crimes Act.