Thursday, October 10, 2019

The SIS unlawfully spied on Nicky Hager

Back in 2011, journalist Nicky Hager published Other People's Wars, an expose on NZDF's activities over the previous decade of the "war on terror". NZDF didn't like this, and especially didn't like the fact that it was based on leaks from their own. So, they had the SIS investigate him for "espionage" in an effort to uncover and punish his sources. In the process, the SIS acquired two months of his phone metadata (more on that later). Now, the Acting Inspector-General of Intelligence and Security has ruled that it their suspicions were absurd and the entire operation unlawful:

The Acting Inspector General of Intelligence and Security has upheld a complaint by investigative journalist Nicky Hager against the New Zealand Security Intelligence Service for unlawfully attempting to uncover his journalistic sources.


The SIS sought to justify this use of its powers against Mr Hager by claiming that it was investigating espionage. However, the Acting IGIS found that the SIS had no reasonable grounds for suspecting that any espionage had occurred.

In her report, the Acting IGIS wrote that, “NZSIS provided that assistance despite a lack of grounds for reasonable suspicion that any activity had occurred that was a matter of national "security'”. She also concluded that she had “been unable to find that the Service showed the kind of caution I consider proper, for an intelligence agency in a free and democratic society, about launching any investigation into a journalist's sources.”

The full report is here, and it is very interesting reading. Some highlights:
  • The ruling depending heavily on the definition of "security" in the old New Zealand Security Intelligence Service Act 1969, which specifically referred to protection from "espionage". While the report does not include a timeline, presumably the complaint was in the system when the new Intelligence and Security Act 2017 was being drafted. Which explains why the government at the time was very keen not to define "national security": so the SIS could interpret it to mean whatever they wanted it to mean, and legitimise this behaviour. So once again, the spies have been allowed to rewrite the law to legalise their behaviour after being caught out.
  • The Inspector-General finds that, given its seriousness, imputing a motive of intending to prejudice the defence and security of New Zealand (a necessary requirement for espionage) requires some actual foundation, and neither SIS nor NZDF had anything of the sort. Along the way, they also pour scorn on the SIS's theory that any publication of classified information is communication with a foreign power and therefore criminal. That is simply not a construction supported by the law (so I guess we can expect the SIS to push for changes to that as well). Incidentally, that's the argument used by the SIS's foreign partners against publishing leaks, and its good to see that our oversight agencies think it is bullshit.
  • It is unclear from the report how the SIS acquired Hager's phone metadata. There are a number of options here: they could have acquired it using an intelligence warrant, or they could have acquired it simply by asking his phone company (Hager being a New Zealander and the government having denied mass-surveillance, presumably they didn't get it from the GCSB or their foreign "partners"). If they got it under warrant, then that warrant would have had to have been signed by the Minister - who at the time was none other than John Key, which given his role in Dirty Politics again raises the issue of government use of spies for persecution. OTOH, if his phone company provided it without any lawful authority to do so, then given the lack of any basis for the investigation, that seems like a violation of the Privacy Act, just as was committed by his bank when they provided information on request to the police. And hopefully he'll go after them as well, pour encourager les autres.
The Inspector-General has recommended that the SIS apologise. I'd go further: they invaded Hager's privacy, and should be paying damages. And I'd hope that the staff who approved this baseless and intrusive investigation will be facing employment consequences, assuming they're still around. We trust our spies with tremendous powers. We must hold them properly to account when they abuse them. Update: The complaint was not made until 2018, after the Intelligence and Security Act was law.