Friday, December 14, 2018

Little lays down the law to the GCSB

Yesterday we learned from the Inspector-General of Intelligence and Security that the GCSB appeared to be breaking the law, by using Type 2 warrants (which have a lower level of oversight and scrutiny) to illegally scoop up New Zealanders' private communications. Today, Intelligence Minister Andrew Little made it clear that that was unacceptable:

Minister of spies Andrew Little has backed the intelligence agencies' oversight body as it raised questions about the legal basis relied on by the GCSB to carry out electronic surveillance operations which captured New Zealanders' communications.


Little said he had personally pushed back on "Type 2" warrants to ensure it was the most appropriate form of authorisation. "Part of my role is to probe and question."

"If New Zealanders are going to have their privacy interfered with in more than an incidental way, or there is a possibility New Zealanders are going to be caught up in an area of activity they are going to go after, there would have to be a Type 1 warrant."

Gwyn's report said the GCSB should be seeking a Type 1 warrant when it knew it was likely to incidentally pick up New Zealanders' communications.

Little has also made it clear that in the absence of formal advice from the Solicitor General, spy agencies should defer to the legal interpretation of the Inspector-General. Which should help enormously in bringing these rogue agencies under control.

But this isn't just an abstract legal argument: people's privacy has been invaded, their private communications are likely to have been unlawfully intercepted, snooped through and stored. All of which is likely to constitute an unlawful search under s21 BORA. Will those responsible be held accountable? Will they be prosecuted or fired? I think we all know that the answer to those questions is "no". Which means there's no incentive for the spies not to engage in similar abuses in future.