The SIS and the "mosaic effect"

Back in 2022, when the government was consulting internally about proactive release of cabinet papers, the SIS opposed it. The basis of their opposition was the "mosaic effect" - people being able to piece together individual pieces of innocuous public information in a way which supposedly harms "national security" (effectively: correlating the contents). DPMC was eventually forced to release further information on the SIS's opposition, in which they offered to brief other government agencies on this risk, and also attempted to weaponise the OIA's outdated eligibility requirement to oppose the entire concept of proactive release. In the process, they made a specific claim that proactive release could result in information being released which "would be of no interest to someone who meets the requestor criteria, but may be of interest to a foreign state."

I was interested in this claim, so I asked the SIS for guidance they have about the "mosaic effect", as well as for evidence of their claim. Their response is here. It includes SIS/GCSB guidance on the use of "neither confirm nor deny" responses under the OIA and Privacy Act, and an internal memo on "The mosaic effect in the context of official information release". The latter is quite interesting, in that its primary evidence is from privacy researchers attacking the concept of "anonymised" data (though they are also agitated about the work of the UK's Undercover Research Group, which helped expose widespread police spying on civil society groups and identify its perpetrators and forced an ongoing public inquiry into police wrongdoing). It also rehearses some rather novel OIA withholding arguments, the use of which is something to keep an eye out for in the future. Along the way they also make a somewhat startling claim that:

some individuals have used information gained through the Privacy Act improperly (i.e. taken information provided to a separate individual, or sought to suborn an individual to make a Privacy Act request under genuine auspices.

...which sounds like they're annoyed that their past victims and relatives of their past victims have been pooling their information to assemble a pretty damning picture of the SIS's historic wrongdoing.

So, what about the specific claim they make about information being released which is "of no interest to someone who meets the requestor criteria, but... of interest to a foreign state"? What evidence do they have that this is actually a problem (and a problem sufficiently threatening to justify undermining our freedom of information rights under s14 BORA)? The SIS won't say. While they claim this is because of "national security", as in the case of Ahmed Zaoui, the natural suspicion is because whatever "evidence" they think they have would not withstand public scrutiny. What does speak volumes is that while they offered to brief other government agencies on the mosaic effect "threat", they didn't actually give any briefings. Which I think tells us how serious it really is: not at all.

SIS "evidence" isn't, again

Back in 2016, then-Internal Affairs Minister Peter Dunne cancelled a New Zealand woman's passport, claiming she was a terrorist. The basis for his decision was a secret briefing by the SIS, which claimed that if she was allowed to travel, the woman would "engage with individuals who encourage acts of terrorism". The Supreme Court has now ruled that that decision was unlawful and invalid:

In its judgment released today, the court found the minister did not have reasonable grounds to believe the woman intended to facilitate an act of terror, and the briefing paper provided to the minister by the SIS was not fair, accurate, or adequate.

The judgement said Dunne's reliance on the woman potentially travelling to Syria to join a terrorist group fell short of the requirement under the law that the person be an actual danger to a country, not just a potential one.

The judges also found the law required there be evidence that the passport holder intended to travel and facilitate in a terrorist act, and Dunne did not have reasonable grounds to believe this - a higher standard than just suspecting it.

So, once again, SIS "evidence" turns out to be a tissue of lies and assertions when subjected to independent judicial scrutiny - just as it was in the Zaoui case. No wonder they kept the entire trial under a cloak of secrecy.

Obviously, this invites serious questions about why the SIS is so bad at its job, and why Ministers persist in relying on their "evidence" when it so obviously and so publicly gets it wrong whenever tested. And it invites serious questions about the quality of the "security assessments" they apply to visa applicants, and whether those assessments are also similarly unfair, inaccurate, and inadequate. A serious government, and a serious opposition, would be asking those questions. But given the way these things normally go, instead we'll see legislation to prevent judicial scrutiny of such decisions, rammed through under all-stages urgency, with the full support of the Labour Party.

The SIS turns Parliament into liars again

When Parliament passed the Intelligence and security Act in 2017, they assured us all that it was full of safeguards. Any intrusive surveillance of New Zealanders would be subject to a "triple lock", requiring the approval of the Minister and (supposedly independent) Commissioner of Intelligence Warrants, as well as post-facto review by the Inspector-General of Security and Intelligence. But according to the latest report from the Inspector-General, the SIS has turned them all into liars.

The problem is that the SIS has switched from using individual warrants to "class-based" ones when collecting intelligence on potential terrorism and violent extremism. So rather than having to convince the Minister and Commissioner of the need to spy on a particular person, as they were required to do in the past, they have instead switched to convincing the Minister and the Commissioner that they need to spy on classes of people, broadly and apparently subjectively defined - meaning that the actual decisions about who gets spied on and how are left entirely to them. This is clearly envisioned by the Act, but at the same time also clearly evades all those safeguards we were told about. And in the specific case, the Inspector-General argues persuasively that it is a "general warrant" (one which does not specify exactly what can be done under it) - a thing which has been unlawful since forever. And interestingly, once you strip away the tortured language designed to hide the admission, it seems that Crown Law agreed:

The Service disagreed with me that the warrants were general warrants at common law, provided the class definitions were tightened, and this was a view supported by Crown Law.

[Emphasis added]

The SIS subsequently did that. But the "improved" warrant still lets them decide "what ideologies are considered terrorism or violent extremism, who is a valid target, and what intrusive activities would be carried out, up to the maximum level of intrusiveness that the law allows." It may no longer be illegal, but it is absolutely improper.

That question of propriety is the real and underlying issue here. The IGIS is clear that while class-based warrants may legally be available, using them for intrusive surveillance "undermines the spirit of the warranting regime" and betrays the promises made to us about safeguards:

The authorising framework in the ISA provides for a process to give the public confidence in the justification for the agencies’ actions, by requiring external authorisation for the use of highly intrusive powers. Prior authorisation is a safeguard against agency overreach. It helps to ensure that breaches of protected rights in the interests of national security are justified and according to law. In the development of the ISA, this was described as a “triple-lock” of protection for individuals, with the three locks being control from the Minister, the Commissioner of Intelligence Warrants, and post-facto review by the IGIS. The effective delegation to NZSIS, under these warrants, of decisions on who to target for counter-terrorism or violent extremism purposes, by what means and for how long, and to undertake the most intrusive activities available, effectively leaves the scrutiny of individual cases to my office alone, after the fact. That is not what the public was led to expect.

Bluntly, the ISA was meant to stop the spies from doing whatever the fuck they want. This is a deliberate circumvention of all those safeguards. It is absolutely unacceptable. Further, it betrays that the culture of lawlessness and unaccountability the ISA was meant to stamp out continues to exist, in the SIS at least. And if that's the case, you really have to ask why we tolerate their continued existence.

IGIS will now be putting the SIS's improperly-delegated targeting decisions under the microscope, giving them the scrutiny the Minister and Commissioner should have. But while that's better than nothing, its not enough. And you really have to ask whether the Minister and Commissioner of Intelligence Warrants were doing their jobs properly when they signed off on this. The then-Minister, Andrew Little, is gone, so there's nothing we can do about him other than make sure he's not let within a mile of the position in future. As for the Commissioner, this seems to be a strong case for removal for neglect of duty.

The SIS is evading oversight again

The Inspector-General of Intelligence and Security released their annual report today. And it contains some rather worrying revelations about the SIS and their efforts to circumvent the restrictions on their use of intelligence warrants. When the government rams through new spy powers (typically under urgency, with no public input), it tells us that they are subject to oversight and therefore cannot be abused. But it turns out that the SIS is systematically evading that oversight. Which invites the natural conclusion that they are engaging in systematic abuse - otherwise, why bother to evade?

And this isn't over little things - its about intelligence warrants, the core of their legal powers. An intelligence warrant allows a spy agency to do something illegal to collect intelligence. Typically that's intercepting phone calls or internet traffic, or burgling somewhere to plant bugs or copy or steal documents. And when they do something like that which might affect a kiwi, they need to ask other people: both the Minister (who is a rubberstamp) and the Commissioner of Intelligence Warrants. These warrants are also reviewed after the fact by the inspector-General, who tends to be a lot more critical in their assessments than either of the other two.

Or at least, that's how it used to work. But John Key's spy law, passed in 2017, fundamentally changed the warrant system. Previously, SIS warrants had to be about a particular individual, and required particularised suspicion. Now, they can be about a "class" of people, and require only a generalised suspicion. Whether a particular person falls into the target class is up to the agency, and there's no external review of that. So of course the SIS is doing everything under class warrants, despite the fact that they are almost always targeting particular individuals:

NZSIS investigations are often focused on particular individuals. Over many years of producing individual warrant applications the agency became proficient at putting together ‘intelligence cases’ in warrant applications for intrusive surveillance of specific targets. Such applications are now disappearing. They are being replaced by applications for warrants against classes of persons defined in terms of the NZSIS having assessed them as threatening national security. It has become apparent that a class warrant can be drafted to cover any NZSIS investigation, no matter how closely it might be focused on a particular person. With a relatively small set of class warrants in place, an individual coming to the attention of the Service may be assessed as coming within an authorised target class (a class possibly approved months beforehand). That person may then be put under surveillance, potentially up to the maximum possible level of intrusion (if that is what the warrant allows), without their existence or any intelligence on them having been presented to anyone outside the NZSIS. That is obviously convenient for the agency. I seriously question whether it is consistent with the concept of a warrant as a safeguard for the rights of anyone prospectively in the sights of a state security agency.

Translation: the SIS's use of class warrants is undermining the entire oversight regime, and the entire concept of warrants as a safeguard.

The Inspector-General apparently has a report in the works about a particular class warrant, questioning whether it was lawful or proper. It will be interesting to see what comes of that, and whether the supposed safeguards in the law mean anything, or whether everything our politicians tell us about restrictions on the spies is just lies, and that the entire legal regime is designed to hide the fact that there are no effective restrictions on their activities. Meanwhile, people might want to consider whether an agency which systematically and repeatedly attempts to circumvent and undermine its own legal oversight regimes can ever be trusted, and whether it should be allowed to exist at all.