The spy bill: Proposed amendments

John Key's spy bill is back before the House today for its committee stage - and there are a pile of amendments proposed. here's what they do:

• SOP 305 (David Shearer): establishes an immediate independent inquiry into the purposes and functions of New Zealand's intelligence agencies.
  
• SOP 306 (John Key): minor grammatical amendments and transitional provisions. All existing interception warrants and access authorisations will continue, but will expire after three months.
  
• SOP 307 (John Key): Standard procedural amendment splitting the bill into three separate bills.
  
• SOP 308 (Peter Dunne): Dunne's "concessions": slightly better monitoring by the IGSI and ISC, but no changes to powers.
  
• SOP 309 (Russel Norman): tweaks s14 - unnecessary in light of the definition of "intercept"
  
• SOP 310 (Russel Norman): adds the Inspector-General of Intelligence and Security and their Deputy to the OIA
  
• SOP 311 (Russel Norman): Adds "Privacy" to the values the IGSI must assess compliance functions against.
  
• SOP 312 (Russel Norman): Requires the Minister to formally respond to the Intelligence and Security Committee upon receiving a report from the IGSI.
  
• SOP 313 (Russel Norman): repeals the prohibitions on the Intelligence and Security Committee inquiring into complaints or operational matters
  
• SOP 314 (Russel Norman): removes "economic well-being" from the definition of "national security".
  
• SOP 315 (Russel Norman): prohibits information gathered under the cybersecurity function from being passed to other agencies (except as incidental intelligence?)
  
• SOP 316 (Russel Norman): amends the definition of "communication" to include metadata (redundant, but useful for the avoidance of doubt)
  
• SOP 317 (Russel Norman): Removes the new objectives clause
  
• SOP 319 (Russel Norman): deletes the function of cooperating with other agencies
  
• SOP 323 (Winston Peters): requires warrants to include information on methods and timeframes, and inserts a new clause requiring review by an "independent authority" consisting of the police, defence force, and judiciary
  

So once again it is the Greens who are leading the debate and representing the public - and many of their amendments would enhance the bill regardless of which side of the debate you are on. Saly, I expect the government to vote against them anyway.

ACT On Campus and the spy bill

So, ACT On Campus - the only part of ACT still with any life in it - has come out against the GCSB bill. Good. I was wondering if anyone in ACT still even pretended to believe in that "freedom" thing they used to be so big on. But while its good to see them add their voices to those defending our rights, they're in a unique position to do something about it as well. In the marriage equality drinking age debate, ACT On Campus basically held an electoral gun to their party leader's head, threatening that if he didn't vote for freedom, they would dump him at the next election. They should be doing the same here. Given the narrowness of the vote, they could actually make a difference, and defend the principles they purport to espouse.

Correction: It was the drinking age, not marriage equality, where ACT On Campus threatened the party leadership.

The Canterbury dictatorship's poison pill

So, Canterbury's unelected dictatorship are running ECan at a loss:

Environment Canterbury is staring down the barrel of a nearly $4 million deficit for the financial year.

The regional council's draft financial summary, presented at last week's commissioners' meeting, projected annual revenue for the year ending June 30 to be $141.632 million, against expenditure of $145.476m.

While there are still some costs yet to be tabled, it is likely ECan will record an annual deficit in excess of $3.5 million for the second consecutive financial year.

However, ECan commissioner David Bedford said it was a "reasonably positive" result.

So how are they paying for these losses? Not by borrowing, but by pillaging ECan's reserves - meaning that there will be nothing left when (if?) democracy is restored, and leaving any democratic successor with a nasty poison pill to swallow. But I guess that's what happens when you don't face any democratic accountability for your job performance, and you're responsible to a Minister in Wellington rather than voters in Canterbury.

The standard you walk past is the standard you accept

When John Key was first elected, he promised "a higher standard of government". Since then we've had Richard Worth, Rodney Hide, and of course John Banks. But yesterday we saw just how low he was willing to go, with the news that he had refused DPMC-head Andrew Kibblewhite's resignation:

The Prime Minister's chief public servant, Andrew Kibblewhite, offered his resignation to John Key for breaching the no-surprises rule in matters crucial to the David Henry inquiry, but it was rejected.

Mr Kibblewhite, however, has apologised to Mr Key for failing to tell him that the content of emails between United Future leader Peter Dunne and reporter Andrea Vance had been sent to the Henry inquiry into the leak of a report into the Government Communications Security Bureau spy agency.

Kibllewhite fucked up grievously in the worst possible way: he oversaw an investigation which ran amok, exceed its authority, violated people's privacy, and repeatedly lied to the public about what it had done. His head should be on a spike next to Geoff Thorn's. But Key is fine with this, because Kibblewhite's "oversight" of not telling him crucial, politically sensitive information has insulated him from blame.

If this is the standard of conduct Key is willing to tolerate from his senior public servants, then we could be in for a very rough ride.

A hole in the law

The weekend's news that the police had seized the text-messages of journalist Bradley Ambrose during their investigation of the "teapot tape" (including legally privilged messages between Ambrose and his lawyer) exposes a clear case of police over-reach. As constitutional lawyer Bill Hodge says, it is mind-boggling that they would apply such intrusive powers in such a minor case, and it appears to be a clear breach of the BORA protections against unreasonable search and seizure. But it also exposes a clear hole in the law, in that their seizure of privileged material appears to have been entirely legal.

The problem lies with the provisions on production orders in the Search and Surveillance Act 2012. These allow the police (and a host of other agencies) to apply for a production order for any document for which they could obtain a search warrant (basicly, anything containing evidence of any imprisonable offence). "Document" specifically includes call-data, including telecommunications stored on a network-provider's network (so text messages and stored voicemail), and the purpose of the provision was specifically to allow police to access such information (as well as banking information and so forth). That is, its all about extracting information from third parties. But the provisions around privilege (including legal professional privilege and journalistic privilege) apply only to the target of such an order. Telecom and Vodafone have no privilege over your communications with your lawyer, so those provisions are basically a dead letter.

Contrast this with the rules on interceptions and direct surveillance: a person conducting such surveillance must take all reasonable steps to prevent the interception or surveillance of privileged material, and must destroy any record of any privileged material which has been intercepted. Not so with a production order. There the police have carte blanche to rummage through privileged communications, provided they were acquired from a third party. While they would not be able to use it in court, in many cases the damage would already have been done.

There's also the problem that such orders are available for any imprisonable offence. This includes not just things like rape, murder, and drug dealing, but also minor vandalism, or those old police standbys disorderly behaviour and resisting police. So, protest with a message or in a way the police don't like, and they can rampage through your private communications - including those with your lawyer, doctor, and partner - looking for "evidence" (and then keep it all and database it for the future).

This seems to go far too far. Surveillance warrants are only obtainable for serious criminal offending. There should be a similar restriction on the use of production orders for telecommunications metadata. Does anyone want to take a private member's bill to protect our privacy from this abuse?

Reported back

The Local Government and Environment Committee has reported back on the Conservation (Natural Heritage Protection) Bill, recommending it be passed with amendments. Among the amendments is a new part increasing penalties under the Marine Mammals Protection Act 1978 for violating marine mammal sanctuaries, apparently sparked by my quick submission. So, submitting on a bill made a positive difference.

The bill is a member's bill, so it will be a couple of months at least before it becomes law.

Something to go to in Wellington

OASIS - Organising Against state intelligence and surveillance - is holding a public meeting in Wellington tonight about John Key's spy bill:

When: 18:00, Monday 5 august
Where: St John's Hall, cnr Willis and Dixon Streets, Wellington
Who: Helen Kelly (CTU), Thomas beagle (TechLiberty), Kate Dewes (Peace campaigner and surveillance victim)

New Fisk

Millions take to the streets of Egypt in an ever-growing media fantasy

More military intimidation

Last week we learned that our defence forces had been spying on kiwi journalists in Afghanistan. It turns out that's not the only thing they're doing - they've also been intimidating kiwis into removing tweets which undermined their PR message that everything was OK:

The Timaru man was working for a private company in Afghanistan's Bamiyan province at the time and had only eight Twitter followers - two of them journalists.

Hussey said a friend, also in Bamiyan, contacted him on August 19, 2012, to tell him there was a gunfight happening 2km away and "not to go up there to the valley on your motorbike".

Hussey tweeted : "Poor Kiwis under fire in Bamiyan :-(".

Just 20 minutes later he was contacted by a member of the NZDF, told to remove the tweet and instructed to attend a meeting immediately at the NZDF base in Bamiyan where he was told he was a "security risk".

[...]

"I was told that there would be widespread panic from the families of soldiers back in New Zealand if it got out," Hussey said.

Firstly, there's absolutely no statutory authority for this - NZDF does not have any legal power to censor people's tweets, let alone demand people meet with them. Secondly it is fairly clearly driven by PR reasons - a desire to keep news about their role in Afghanistan "on message" as not being a combat mission. Thirdly, it seems to be a pretty obvious violation of the BORA-affirmed right to freedom of expression (which applies to the NZDF whereever they are in the world) by using the implied power and authority of the state to silence someone. NZDF has to take extra care here - as an organisation with uniforms and guns, their "requests" are by default seen as an exercise of state power, even when they are not backed by any legal authority. And in the circumstances described above - immediate, having harassed people in New Zealand to learn contact details, with an "interview" in an armed camp - they are simply intimidation.

While Hussey's tweet was public, I don't think I'm the only one to find the idea that NZDF is monitoring what we say about them... disquieting. Their job is to defend us, not spy on us, and our attitudes towards them and their mission are something they must simply accept. When they try and manipulate them with intimidation, they shift into being downright menacing - and a threat to our democracy.

The real threat

While John Key is scaremongering about terrorists in an effort to ram through intrusive and over-reaching spy legislation, the real threat to New Zealand seems to have passed completely unnoticed. I'm talking of course about Fonterra's poor sanitation, which has resulted in New Zealand dairy products being banned in at least two countries, falling share prices and a collapsing dollar - and that's just the start. In the long-term we could be looking at a decline in overall exports. The effects have been far more devastating than any terrorist attack. But I guess basic food safety just isn't as sexy as people thinking they're James Bond.

And as with last time, Fonterra's natural inclination seems to have been to try and launch a cover-up:

The dairying giant knew something was wrong as long as ago as March, but only informed the Government of the issue on Friday after realising last week the scale of the problem, which has been traced back to a dirty pipe at a plant in Hautapu, Waikato.

And this remember is for botulism, which is potentially fatal. But rather than worrying about people's lives, they worried about the effects full disclosure would have on their share price and exports. And the result is that when it inevitably came out, all those effects were compounded by a crisis of trust. Dicks.

Meanwhile, the undetected manufacture and export of contaminated food is a fundamental failure of our food safety system. How can detecting a potentially lethal bacteria take ten months? How can not immediately responding to such detection with a recall not be a crime? There are serious gaps here, almost certainly the result of cost-cutting and deregulation, and they need to be remedied. Quite apart from the basic issue of public safety, as a food exporter we live and die by our reputation for clean food. Fonterra's lack of basic hygiene has destroyed that reputation. We need to make sure that it is not allowed to happen in the future.

More lies from the Henry Inquiry

John Key's office has released the email trail between the Henry Inquiry and Parliamentary Services. And it shows that they've been lying to us about whether they had accessed Peter Dunne's emails:

Parliamentary Service gave a ministerial inquiry emails between UnitedFuture leader Peter Dunne and Fairfax journalist Andrea Vance, it has emerged.

The revelation follows the resignation yesterday of Parliamentary Service head Geoff Thorn amid fallout from the Henry inquiry.

In documents set to be released this afternoon, it will be revealed that Parliamentary Service recalled the emails that it sent to inquiry head David Henry, who had been tasked with finding out who leaked a confidential report on the Government Communications Security Bureau to Vance.

The Department of Prime Minister and Cabinet (DPMC) will issue a statement this afternoon saying the emails were never read and the attachments were destroyed.

But why should we believe that statement? Everything we've learned about the Henry Inquiry has shown that it has lied to us at every turn. It said it didn't have access Andrea Vance's phone records. It lied. It said it didn't have access to Peter Dunne's emails. It lied about that too. All it has done is lie to us in an effort to cover up its over-reach and constitutional abuses. Why should we believe it is doing anything different now?

Parliamentary Services manager Geoff Thorn has already resigned over this for bowing to the inquiry's demands, but more heads have to roll. DPMC Chief Executive Andrew Kibblewhite says he was one of the inquiry's commissioners, along with GCSB Director Ian Fletcher. Let's start with them.

Meanwhile, this pattern of deceit has been absolutely corrosive of trust in government. Such systematic lying means that we can no longer trust anything the government says. And that's not good for our democracy.

Look! More terrorists!

Yesterday, John Key tried to scare us into supporting his intrusive, over-reaching spy bill by invoking the spectre of terrorism. When this was greeted with widespread incredulity and scorn, he doubled down, claiming that he had signed warrants to observe New Zealanders who were currently training in terrorist camps in Yemen.

Other commentators have already focused on whether this undermines "national security", or whether it is even true (and lets be honest: secrecy means we have no way of telling, and Key has every reason to lie to us - and the GCSB have every reason to lie to him). I think the more interesting question is whether the Prime Minister has broken the law.

How? Well, there are two broad types of intelligence warrant he can sign. The first is the type we've all been talking about for the last month: a GCSB interception warrant, allowing the interception of phone calls, email, or other "communications". But as we all know, the GCSB is absolutely forbidden from spying on New Zealanders in any way. So if the Prime Minister had signed such a warrant for a New Zealander in Yemen, it would be illegal.

The second sort of warrant is an SIS intelligence warrant. This allows the interception of communications, electronic tracking and so forth. But as the SIS is unlikely to have field agents in Yemen to do the tracking, they probably would have relied upon... the GCSB, either directly or by getting them to ask their foreign "partners" for assistance. And thanks to section 14 and the broad definition of "communication" (which covers even receiving summaries or "the sense" of a phone call or email) that too would be illegal.

In short, if the Prime Minister has done what he's claimed, then he and/or the GCSB has probably broken the law. No wonder he wants a quick patch-up!

But there's also another troubling question - namely whether any intelligence gained by such surveillance (if it actually exists) has been shared with the United States. Because as we know, they arbitrarily kill people with drones in Yemen. Passing information to them about New Zealand citizens allegedly training with Al Qaeda exposes those kiwis to a US drone strike. Which would seem to be a prima facie breach of the right not to be deprived of life affirmed in the Bill of Rights Act.

In short, the Prime Minister's claims strengthen the case for a full inquiry into our intelligence services, to determine both whether they have complied with the law, and the extent and risks posed by their intelligence sharing with foreign powers. And we absolutely should not be writing the Prime Minister a "get out of jail free" card until that is done.

He who pays the piper calls the tune

Today's NSA leak: the NSA are secretly funding Britain's GCHQ by over £30 million a year:

The US government has paid at least £100m to the UK spy agency GCHQ over the last three years to secure access to and influence over Britain's intelligence gathering programmes.

The top secret payments are set out in documents which make clear that the Americans expect a return on the investment, and that GCHQ has to work hard to meet their demands. "GCHQ must pull its weight and be seen to pull its weight," a GCHQ strategy briefing said.

[...]

In one revealing document from 2010, GCHQ acknowledged that the US had "raised a number of issues with regards to meeting NSA's minimum expectations". It said GCHQ "still remains short of the full NSA ask".

Ministers have denied that GCHQ does the NSA's "dirty work", but in the documents GCHQ describes Britain's surveillance laws and regulatory regime as a "selling point" for the Americans.

What they're paying for here is the ability to bypass American law on domestic surveillance by getting a foreign ally to do it for them. But it raises some unpleasant questions about who is really directing UK intelligence operations and policy: elected politicians or the foreign paymaster. There is an unpleasant word for people who take money from foreigners to provide intelligence for them: they're called traitors. And it looks like GCHQ are the biggest bunch of traitors in the UK.

This also raises questions about whether this is happening in New Zealand. Is the NSA part-funding the GCSB? If so, what do they expect in return from their "investment"? Unfortunately, the GCSB's budget, even the appropriation saying what services Parliament expects of it, are secret. Which gives our politicians total impunity to lie to us about who "our" spies are really working for.

Guilty

Last year, an Italian court convicted former Italian Prime Minister Silvio Berlusconi of tax evasion, sentencing him to four years' imprisonment (which was automatically cut to one year under an amnesty law Berlusconi passed in 2006). Today, that conviction was upheld by Italy's constitutional court. Berlusconi is now officially a convicted tax-fraudster, and he will be spending the next year under house arrest. But it wasn't all good news - they also ordered a review of the five year prohibition from holding public office handed down by the lower court, meaning that he will not be automatically evicted from the Senate and will still be able to run if elections are called soon or the ban is not uphold.

Still, its a good result, and justice is finally being served on one of the most corrupt western leaders in some time. And there's still plenty more of it to come...

Democracy and "national security"

Trade Minister Tim Groser during the debate on John Key's spy bill today (video here):

[W]e all know about Opposition politics. There has got to be some slack given to Opposition politics, where things that were done when the party was in Government are airbrushed out of reality—fine—but there are some limits that have to be observed. We could debate, probably inconclusively, where they should stop—before you start to undercut the fundamental concept where Government proposes and Opposition opposes—but we cannot debate where it starts. Where it starts is national security.

Or, in short, "opposition should not be permitted on national security". But as we're seeing with this very bill, "national security" is a highly political concept - there is nothing more political than defining who is an "enemy" and what the state is allowed to do to them. And what Groser is suggesting is that those hugely political questions should somehow be beyond democratic politics and beyond the vote.

Groser is Trade Minister and used to work for MFAT, and this is very much how MFAT operates. But it sure as hell isn't democracy. And for a senior government Minister to expound this ideology in Parliament raises serious questions about whether that party believes in democracy at all.

Head on a spike

Geoff Thorn, the General Manager of Parliamentary Services, has resigned. Good riddance. Thorn failed to understand the fundamentals of his job, namely the separation of the executive and legislature. Not only did he provide information on MPs' communications to Key's inquiry without their consent, he provided information on a journalist. And that's just unacceptable.

But while Thorn's resignation is welcome, it shouldn't be the only one. The Prime Minister's chief of staff, Wayne Eagleson, had a similar disregard for the separation of powers and Parliamentary Privilege, attempting to bully the information out of Parliamentary Services. He should go too.

Keeping up with the Joneses

The latest NSA leak: the NSA spies on everyone's phone calls and email traffic and can make the metadata (and in some cases, the communications themselves) available at the touch of a button:

A top secret National Security Agency program allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals, according to documents provided by whistleblower Edward Snowden.

The NSA boasts in training materials that the program, called XKeyscore, is its "widest-reaching" system for developing intelligence from the internet.

[...]

XKeyscore, the documents boast, is the NSA's "widest reaching" system developing intelligence from computer networks – what the agency calls Digital Network Intelligence (DNI). One presentation claims the program covers "nearly everything a typical user does on the internet", including the content of emails, websites visited and searches, as well as their metadata.

Analysts can also use XKeyscore and other NSA systems to obtain ongoing "real-time" interception of an individual's internet activity.

This is why the GCSB is so hot for its spy bill. Currently, section 14 of the GCSB Act forbids them from doing anything like this here, or even from receving data on New Zealanders from their overseas "partners". Key's spy bill would repeal that protection. While they would still be prohibited from intercepting the "private communications" of New Zealanders, it would be open-season on our metadata, letting them see who we've talked to, what websites we've visited, how often, and for how long. And they'd be able to collect it, database it, mine it, and search it to their heart's content.

The spy bill isn't about "national security" - its about our spies keeping up with the Joneses in their ability to intrude into our lives. The Americans and the British have a panopticon, and the GCSB want one too. Its that simple.

As for what these vast new powers would be used for, we only have to look at how existing powers have been used: not against real threats to "national security", but against journalists, political threats to the government of the day. It is not about our safety, but about protecting the government from democratic accountability. And that is simply wrong.

SIS spies on journalists

This week, while we're debating an over-reaching spy bill which would allow the GCSB to spy on all our phone calls and internet traffic, we've learned that both the NZDF and the Prime Minister's office have been spying on journalists for political ends. And now, thanks to some good OIA work by the Herald's David Fisher, we learn that the SIS does it too:

The country's internal intelligence agency has a special protocol for spying on journalists, the Prime Minister's office has confirmed.

The revelation of the protocol came in a letter which effectively confirmed journalists as valid targets for NZSIS surveillance.

[...]

The Herald learned details through the Official Information Act which an intelligence community source said needed to be seen in the context of those who classed themselves as journalists. He said it was an extensive grouping of people which could include dangerous or radical elements.

The response from the Prime Minister's chief of staff Wayne Eagleson provided scant details saying the intelligence agencies needed to work in secret.

But the few details provided ruled the Government Communications Security Bureat out of spying on journalists - and appear to confirm journalists had been targeted by the NZ Security Intelligence Service.

I guess they didn't want to be left out of John Key's snoop-a-thon.

As for "dangerous and radical elements", we can see exactly what the government means by that by looking at who they've spied on already: war correspondents publishing details which embarrass the military and political journalists who embarrass the government. Given that track record, I think we can take the SIS's assurances that they respect the democratic role of journalists with a pinch of salt.

Key on Al Qaeda

So, how seriously does John Key take the threat of Al Qaeda terrorists he is invoking to justify his invasive and unconstitutional spy bill? Fortunately, he's gone on the record on this. In 2009, kiwi Mark Taylor was arrested in Pakistan and accused of having links to Al Qaeda. His name was placed on a US no-fly list and he was subsequently denied a New Zealand passport on "national security" grounds (the only time this power has been invoked). So was he the sort of threat which justifies spying on all our phone and email communications? Not according to John Key:

"For reasons that you'll appreciate, I can't go into great detail about Mark Taylor. All I can say is that he's known to us, he's someone that has quite a number of restrictions on him for very good reasons.

"I know him and his name very well."

When asked if New Zealanders had anything to fear from him, Mr Key said: "I don't believe so, no."

Which makes Key's comments today look even more like fearmongering. He doesn't think kiwis linked with Al Qaeda are a threat, and he wasn't demanding extra spy-powers to help him deal with them back in 2011. So why does he need them now?

(Taylor's side of the story is here, BTW)

Look! Terrorists!

The PM has turned up the frightners in his efforts to pass his spy bill, claiming that some kiwis have been trained by Al Qaeda in Yemen. So? The SIS already have the power to intercept the communications of known security threats under warrant, and if they are actually involved in terrorist activity (even merely financing or recruiting), the police do too. But what he's proposing is to allow the GCSB to intercept the phone and internet traffic of every New Zealander, just on the oft-chance that one of us turns out to have done something. Which seems like a bit of an over-reaction to a rather vague (and let's be honest, over-used) threat.

When the government tries to frighten you to try and pass a law, it is a sure sign that there is something wrong with it. We must not pass this bill.