Tuesday, May 30, 2023

Some sensible suggestions on reining in the spies

In 2022 the government announced a periodic review of the Intelligence and Security Act, the legislation governing New Zealand's spies. Yesterday the review presented its report, Taumaru: Protecting Aotearoa New Zealand as a Free, Open and Democratic Society. Its a chunky read, and I'm not finished yet, but from the bits I've read, its not the usual spy-agency power grab, but rather, the complete opposite, presenting ideas to increase oversight and rein in the power of the spies.

Stuff has a good summary of the key recommendations. The big three are:

  • Strengthening the Intelligence and Security Committee, making it actually independent by kicking Ministers off it, and giving it power to investigate the effectiveness of the agencies, as well as oversight of other intelligence bodies (of which we have a disturbingly large number). The spy agencies absolutely hate this idea, so that's a strong reason to do it.
  • Removing the distinction between type 1 and type 2 warrants for "national security" purposes - a bit technical, but basicly type 1 warrants are required to spy on kiwis, type 2 are for foreigners and have lower oversight. The recommendation is that everything would use the higher standard. This apparently happens anyway because of the risk of incidentally spying on kiwis, but it will mean a legislated improvement in oversight.
  • Defining "national security" in the Act - this is an important definition, and defining it will potentially limit what the intelligence agencies can do. When the ISA was introduced to parliament, the Bill originally included a definition, but this was removed by the select committee because it "would require the intelligence and security agencies to make difficult judgements about when the definition applied, and when their powers could be invoked" - that is, it might stop them from doing whatever they wanted. IIRC the definition also attracted opposition from the public, because it included "economic security" and "international relations" - protecting the rich and silencing criticism of NZ's so-called "friends" - which do not enjoy social licence as a basis for spying. The review's proposal doesn't include any of that bullshit, focusing strictly on territorial integrity, safety, democracy, and social diversity. There is a mention of "essential interests", but that's nailed down by talking about "critical infrastructure and governmental operations", so it might not be the open slather it seems like. Overall, I think this is a good move, because it will limit the spies.

One of the other recommendations is legislative consistency for all the other intelligence groups (such as NZDF, police, customs, MBIE, MPI... apparently everyone's got one now). Insofar as these bodies are operating on an unclear legal basis and without statutory constraints (NZDF appeals to the royal prerogative, FFS), this seems like a bloody good idea. The Search and Surveillance Act should have done this, and it is highly disturbing that some bodies apparently fell through the cracks (and that the recommendations of the Law Commission around requiring warrants for undercover operations have been ignored). And it seems especially necessary now that the legal consensus on what constitutes a "search" has shifted to mean interference with "a reasonable expectation of privacy". Under this new consensus, these bodies are likely engaging in widespread illegal searches (the review unwittingly gives an example of the SIS using a fake identity to monitor a private chatroom. That's a search, and should need a warrant). It would be better for Parliament to legislate properly to give certainty about what they can and can't do, rather than for them to ram through "fuck you" empowering legislation when one of these agencies is caught and made to pay damages by the courts.

Again, I haven't finished reading the whole thing yet. But so far, this seems like a sensible review. So now we'll no doubt get to see the spies either bin it, or pervert it into giving them even more powers and less accountability.