Thursday, November 07, 2019

More crime from the spies

Last year, the Inspector-General of Intelligence and Security reported on significant problems with the intelligence warrant system. While they were unwilling to declare any warrant "irregular" (meaning unlawful) due to the recent law change, they were also not willing to give the system a clean bill of health. Now, they've done a followup report, and while there have been improvements in several areas, they have also for the first time reported that a number of warrants did not meet the statutory criteria under the Intelligence and Security Act 2017:

As noted above (paragraph 10) the Inspector-General reached the view this year that one of the Bureau’s Type 2 warrants was irregular for a lack of sufficient operational detail in the application and a consequently inadequate demonstration of necessity and proportionality. We have since found that another Bureau Type 2 warrant was irregular for deficiency of information on one of the activities for which authorisation was sought. The Bureau is working to address the issues raised by this warrant.

Late last year we formally advised NZSIS that activity under one of its Type 1 warrants was irregular, as it involved a privacy intrusion beyond what was articulated in the warrant application. The Service did not agree...

The Inspector-General says they will be doing more work to bring the agencies into compliance, but shouldn't they be doing more? Because, to point out the obvious, the effect of a lawful warrant is to authorise things like the use of interception devices or the unauthorised access of a computer system, both of which are crimes. If the warrant wasn't lawful, then the activities conducted appear to be criminal. Shouldn't the spies therefore be being prosecuted? Or does the law simply not apply to them like it applies to the rest of us? And shouldn't the agencies be paying damages to the victims of their criminal interference with privacy? Instead, it seems like secrecy will let them just get away with it. With the result that no-one will be held to account, and that there is no incentive not to repeat such behaviour in the future.

This shows the toothlessness of our "watchdog". Yes, they've got quite a bark on them. But like the IPCA, nothing ever results (except perhaps law changes retrospectively legalising the spies' crimes). And that means that their net effect is to provide a veneer of accountability to unaccountable criminal agencies. Until they can prosecute people - and actually do so - they're a sham, and a waste of everyone's time.

Meanwhile, we should remember: spy Minister Andrew little approved these warrants, despite their unlawfulness. Which shows that he is aimply unfit for his position. And it should also cause severe questions about trusting this Minister and these agencies with any more powers, like the control orders they're currently trying to ram through Parliament.