Wednesday, July 04, 2018

The GCSB spied on the Pacific

The Inspector-General of Intelligence and security has released her report on GCSB spying in the South Pacific. The short version: the GCSB spied (and almost certainly still spies) on our Pacific neighbours, this spying may have illegally captured the private communications of New Zealand citizens, but as they do not appear to have been retained, there's no finding. Its a deeply unsatisfactory report, in that GCSB appears to have been doing something illegal and escaped consequences for it (again), and it spends a lot of space talking about how the law has changed and the protections GCSB has in place, but the fact remains: if they are still spying on the Pacific, then they will still be intercepting the communications of kiwis living or holidaying there. They have legal cover now for such "incidentally obtained intelligence", but that shouldn't be any comfort. We're meant to be a free and democratic society, and free and democratic societies don't spy on their citizens without particularised suspicion and individual judicial authorisation. And yet, the GCSB's methods at least sometimes involve indiscriminate mass surveillance. And all the equivocation in the world over "collection", "selection" and "retention" can't hide that.

Plus of course, there's the discomfort of an official acknowledgement that our government was (and probably still is) spying on our closest neighbours, all of whom we consider to be friendly states. I wonder how that will go down at the Pacific Forum?

Meanwhile, there's an interesting admission in the report: pre-2013, the GCSB considered metadata interception and getting its Five Eyes partners to provide intelligence on kiwis to be entirely legal and not requiring authorisation. So, the entire critique of the GCSB was accurate. Post-2013 both of these activities required legal authorisation, but that might not be any comfort - because when the law changed, the number of access authorisations issued went through the roof, suggesting that Ministers simply signed off on the spying GCSB was doing anyway. And of course, no-one at GCSB was held accountable for its previous, highly dubious and self-serving interpretation of the law.