Targeted and proportionate?

Last week, the US Privacy and Civil Liberties Oversight Board - a body appointed by the President to "investigate" the NSA - endorsed the NSA's s702 international wiretapping programme, finding it to be legal, valuable, targeted, and proportionate.

I guess they'd never seen the actual intercepts then:

Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.

Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.

Many of them were Americans. Nearly half of the surveillance files, a strikingly high proportion, contained names, e-mail addresses or other details that the NSA marked as belonging to U.S. citizens or residents. NSA analysts masked, or “minimized,” more than 65,000 such references to protect Americans’ privacy, but The Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S.residents.

This isn't targeted interception - its a dragnet that captures people indiscriminately and grossly violates their privacy in a continuing manner. They're collecting people's CVs, academic transcripts, medical records, and personal photos - not to mention all the accompanying conversations - regardless of whether or not they're of actual interest. And naturally, they're keeping it all, just in case it turns out to be useful later.

Though its membership in the Five Eyes, our government is an active participant in this global conspiracy to invade people's privacy. Its time we ended that.

New Fisk

Dumping blame for the Holocaust on the wretched figure of the Grand Mufti is an insult to the six million victims of an evil regime

Still sinister

Last month, I blogged about the police's unlawful response to an OIA request sent to them via FYI. Faced with a request for a police's officer's identity from their badge number - a clear requirement of the Peelian Principles which provide the foundation of our policing culture - the police demanded that the requester fill out a form in person at a police station while providing ID, then refused to accept any further correspondence via FYI.

In addition to publicising the issue, I also filed a parallel request direct to Greg Waters (the officer who had given that outrageous refusal), seeking the same information by email. And so today I received a phone call from them about the request. Normally, when government agencies call me about a request, they're trying to be helpful, seeking clarification, or explaining an extension of the timeframe. This OTOH was quite aggressive, seeking to find out if I had any connection to FYI, why I wanted the information, and what I planned to do with it. The subject of the request - the mysterious officer NWJ012 - was apparently a very senior police officer with a lot of experience, and they were concerned about their privacy (because police officers shouldn't have names). The overwhelming impression was of the police trying to protect their own from the law. As with my previous experience, it was vaguely sinister. The police are clearly still operating under a paradigm where requesters have to justify themselves to people in uniform, rather than the other way round. And that's just not good enough.

As for the request itself, I've been told I'll get a response, which is a step up from the way the FYI requester was treated. As for the merits, its difficult to see how merely linking a name to a badge number would significantly infringe privacy (especially in light of the public interest in accountability), or credibly engage the interests protected by s6(d) (endangering safety) or 9(g)(ii) (protecting officials from improper pressure or harassment). Despite this, I expect the police to try and refuse the request, and to have to challenge that refusal through the Ombudsman.

National shuts down Christchurch's rape crisis centre

On wednesday, the government used sexual violence as an excuse to undermine the right to silence. Meanwhile, they're quietly letting Christchurch's only rape crisis centre close [audio]. There's been a 40% rise in sexual assaults in Christchurch since the earthquakes, but National is refusing to fund rape crisis there because it needs government funding to survive (yes, really).

And that's National for you in a nutshell. A lot of tough talk, while making things worse in practice. I guess there's just no "tough on crime" headlines for Judith Collins in well-funded rape-crisis centres, and hence no reason for this government to show interest.

John Key pisses on public service independence

One of the core principles of our public service is that Ministers have no role in staffing decisions. This is not the era of Seddon, where a Minister can hire or fire at will, and stack "their" department with cronies and time-servers regardless of merit. Instead, for over a century, public sector heads have been statutorily independent in such matters.

John Key has just pissed all over that principle:

The official who let the Malaysian Government believe New Zealand was comfortable with a diplomat accused of attempted rape going home, should consider their career options, the prime minister says.

[...]

Prime Minister John Key has backed both Foreign Minister Murray McCully and Mfat chief executive John Allen on the handling of the incident, but he has signalled repeatedly that he could not understand how an official could have given any sign that the position was unclear, given New Zealand's sound legal system and the seriousness of the allegations.

"If that person doesn't have clarity about that position then they need to think very strongly about whether they're in the right job," Key said, adding that the situation had added to the distress of the victim.

Key said the official had created the ambiguity.

"That led to a situation that is unacceptable to me, and I think it is very distressing for the woman," he said.

The message is clear: the Prime Minister wants them to resign or be sacked. Its a direct attempt to pressure MFAT's CEO on a decision in which they are statutorily independent, and it irrevocably taints any inquiry, in that any decision to discipline or terminate the employee will be seen as the inquiry merely doing the Prime Minister's bidding. Such an improper intervention doesn't just expose the government to legal risk - Key has just given the employee an excellent case for constructive dismissal - it also directly violates Cabinet Manual guidance on interactions with the public service.

But as we've already seen, violating the Cabinet Manual is a problem for Key. A "higher standard" of government? I think not.

The NSA targets the privacy-conscious

The latest NSALeak: anyone who even searches for common web privacy tools like Tor and Tails is targeted for surveillance:

Since the start of the Snowden story in 2013, the NSA has stressed that while it may intercept nearly every Internet user's communications, it only "targets" a small fraction of those, whose traffic patterns reveal some basis for suspicion. Targets of NSA surveillance don't have their data flushed from the NSA's databases on a rolling 48-hour or 30-day basis, but are instead retained indefinitely.

The authors of the Tagesschau story have seen the "deep packet inspection" rules used to determine who is considered to be a legitimate target for deep surveillance, and the results are bizarre.

According to the story, the NSA targets anyone who searches for online articles about Tails -- like this one that we published in April, or this article for teens that I wrote in May -- or Tor (The Onion Router, which we've been posted about since 2004). Anyone who is determined to be using Tor is also targeted for long-term surveillance and retention.

They also target various other privacy tools, the anonymous remailer system, and the Linux Journal, which the NSA call an "extremist forum".

The full article with technical details (and leaked XKEYSCORE rules) is here.

The obvious question: is NSA data on NZ Tor users (and people who search for Tor, as I just did to get the links to put in this post) shared with the GCSB? Do they have, or have access to, a database of all such "extremists" in New Zealand? And shouldn't they be focusing on real threats to security - such as people with guns and bombs - rather than people who merely want to protect their privacy from a snooping, spying government?

Challenging the panopticon

Earlier this year we learned that Britain's GCHQ had hacked Belgian telecoms company Belgacom using a man-in-the-middle attack. The attack wasn't an isolated incident, but part of a wider pattern of cyberwarfare carried out by GCHQ. But now, some of GCHQ's possible targets are taking the spies to court:

Internet service providers from around the world are lodging formal complaints against the UK government's monitoring service, GCHQ, alleging it uses malicious software to break into their networks.

The claims from seven organisations based in six countries – Germany, the Netherlands, South Korea, the UK, the US and Zimbabwe – will add to international pressure on the government after Edward Snowden's revelations about mass surveillance of the internet by UK and US intelligence agencies.

The claims are being filed with the investigatory powers tribunal (IPT), the court in London that assesses complaints about the agencies' activities and misuse of surveillance by government organisations. Most of its hearings are held at least partly in secret.

Unfortunately the secrecy of the proceedings means we have no real way of determining whether this case is heard fairly, or simply fobbed off to protect a spying government. But if they don't win, there will be obvious suspicion of the latter, and increased pressure to shut GCHQ down entirely.

Climate change: A do-nothing approach

Another day, another example of our government's "do nothing" approach to climate change:

A lobby group has challenged the next government to introduce a climate change act that would galvanise promises to cut greenhouse gas emissions and help New Zealand "catch up" with proactive countries such as Denmark.

Climate Change Minister Tim Groser last night congratulated Generation Zero on its proposals, but said it wasn't New Zealand's place to position itself out ahead of where international negotiations were at.

Which, as under National New Zealand is part of a group of countries actively impeding those negotiations, basically means doing nothing. The difference from our historical role on nuclear weapons, human rights and women's suffrage couldn't be any starker. This is a government with no ambition, and no commitment to the future.

As for the specific proposals National is rejecting, five-year carbon budgets are an essential mechanism for reaching any target, whether National's pathetic ones or something more realistic. They're also a vital means of holding government to account for not meeting those targets (e.g. by the usual NZ "strategy" of setting targets and then doing nothing to achieve them). Which is exactly why politicians hate them.

National standards for pollution

Today the government announced the final version of its national standards for freshwater. They're trying desperately to pretend that these will improve water quality, but nothing could be further from the truth. The standards have been panned by the Parliamentary Commissioner for the Environment, as they allow water quality to be further degraded from its already-polluter state. And as the Greens point out, their "bottom line" isn't rivers that are safe to swim in, but ones which are safe for wading and boating, where skin contact won't kill you (but accidental ingestion might). National are happy for rivers which we can't swim in and which kill our pets, because they view our recreation and use as less important than farmers' use of our rivers as open sewers for their cowshit.

I can't think of a better example of how bad these "bottom lines" are than to point out that the toxic sewer of lake Waikare, where the water is blood-red with algae, and the fish and birds have disappeared, would meet National's "standards". Campbell Live found that it had a Nitrogen level of 5.4mg/L. The government's bottom line is 6.9. According to the government, Lake Waikare is perfectly fine, nothing to see here, move along. And that sums up their attitude perfectly.

This is not a "balance" between the economy and the environment. It is destroying the environment for the profit of a few. And I'd like to see political parties making clear statements that these "bottom lines" will be improved, to outlaw pollution and make our rivers safe to swim in.

The police are still ignoring electoral crime

NewstalkZB reports on the woeful state of police enforcement of our electoral laws:

The Electoral Commission is saying nothing about apparent police inaction on breaches of the electoral law.

Information provided by the Commission reveals that since the beginning of 2011 there have been 113 breaches of the Electoral Act that it's referred to police for investigation.

Not one has resulted in a prosecution.

According to a report in January last year, only five of those cases had been resolved, with none resulting in prosecution. The others were still under "investigation" - including 62 cases of double voting. But if they don't sort it out by November, then the prosecution time-limit will kick in, and these people will escape justice.

Its crystal clear that the police do not regard this as a priority, and instead would rather focus on "real crime", like personal drug use. I've said it before and I'll say it again: if they don't want to do the job they're funded to do, we should take it off them and give it to someone who will do it: the Electoral Commission.

An important question

Kim Dotcom has won another victory, with a ruling that the New Zealand police cannot give his encryption keys to the FBI. Which immediately raises the question of whether we can trust them to obey it, or whether they'll just leave them "lying around" where an FBI person can copy them.

Which in turn shows how low the police have sunk in the public trust. The idea that they might disobey or circumvent a court order ought to be unthinkable. Sadly, their recent behaviour, in this case and others, means that no is longer true.

Time to defend the right to silence

Another day, another attack by the government on the rights of the accused. This time, its the right to silence: as part of a new package aimed at reducing family violence, the government will

explore whether prosecutors should be able to invite the judge or jury to draw an adverse inference when a defendant refuses to give evidence in sexual violence cases. Current law only allows the defendant, the defendant’s lawyer or the Judge to comment on a defendant’s failure to give evidence.

Apparently England and Wales have such a system, but unlike Judith Collins I'd hardly consider Britain, with its creeping totalitarianism and corrupt police force, to be a model for our justice sector.

As for why we should resist this, its simple: because it undermines the right not to be compelled to give evidence against yourself. To point out the obvious, if an adverse inference can be drawn from your refusal to speak, then that is no longer a right. It is also a direct attack on the presumption of innocence, in that rather than proving their case, police will be able to use a defendants refusal to admit guilt to imply it. Which probably sounds great to regressives like Collins who want to drag us back to the era of guilt of accusation, but the result will be injustice and the persecution of the innocent.

There are sound reasons why no-one should ever talk to the police under any circumstances (American context, but the same principles apply here). The response to people taking their right to silence seriously is not to strip it from them, but for the police to do their fucking job and find another way to build a case. And if they can't, it is better to see the guilty go free than an innocent punished.

Shooting at MPs

For the past few years, the right has been whipping up hatred against Hone harawira. And now, predictably, people are shooting at him:

An investigation is underway after bullet holes were found in Mana leader Hone Harawira's Kaitaia electorate office.

Shots were fired through the office's front window last Thursday night, Mr Harawira told Radio New Zealand.

He said he was taking the threat seriously.

"It is a worry, I get criticisms, I get threats - I even get death threats - but when people start taking shots at your office it's a whole different ball game.

Hopefully they'll catch the shooter, and I look forward to their prosecution. This sort of thuggery has no place in our political system.

New Fisk

Israeli teenagers' funeral: It is obscene when either side kills children – not only Palestinians

Dysfunctional

Yesterday SSC released its Performance Improvement Framework Report for the New Zealand Intelligence Community (SIS, GCSB, NAB, and bits of DPMC). The short version? Our spies are completely dysfunctional:

A dismal picture of New Zealand's intelligence services has been painted in an official report which has urged greater transparency and says huge change is urgently needed.

It says the intelligence agencies are unclear about what their priorities are while tolerating poor performance and questionable work quality.

[...]

It specifically withheld an assessment on the GCSB and NZSIS ability to reach its performance targets, saying doing so would place the security of New Zealand at risk.

But it did say there was a "huge amount of change to be undertaken" and it needed to happen with "urgency".

A declassified version of the report painted a grim picture of the work our spies were doing, saying "national security and intelligence priorities are inadequately defined".

In short, they don't know what they're doing, they don't know why they're doing it, and they're not doing it well. NZSIS can't do its core job - security vetting - in a timely fashion, GCSB can't even count, and they hate each other. Plus they've got poor financial management practices and no idea of how much stuff they own to boot.

And then they wonder at the level of public hostility: its because we doubt their purpose, see their intrusive powers as unjustified, and view them as useless muppets who have never done the job they're supposed to. If the entire NZIC was shut down tomorrow we wouldn't notice and wouldn't care. And that I think is the most powerful argument for doing so.

Overstretched

The Office of the Ombudsman issued its Statement of Intent yesterday, setting out what they plan to do over the next five years. we've been hearing a lot recently about how the office is failing to deal with the deluge of complaints it must now handle, and the Statement of Intent confirms it. Here's their projected performance targets for handling OIA complaints:



Spot the difference: their budget target - on which their budget is based - underestimates demand by 75% or more. It's a similar story for Ombudsman's act complaints: they have a target of 8,000 contacts/complaints a year, and they're actually dealing with 11,000. Which is why people are waiting years to have their complaints resolved. Further down they note that

there is a risk we will not be able to meet stakeholder expectations of the time taken to complete the complaints and other contacts we receive.

Timeliness is often critical to complainants and significant failures in this regard carry the risk that people will choose not to turn to us or, if they do, the outcomes we can achieve will not be relevant, useful or appropriate.

No shit. OIA requests are often highly time sensitive. If you have to wait two to five years to get an effective response, there's simply no point asking. And that has unpleasant implications, not just for transparency, but for confidence in our system of government overall.

But its not just complaint-handling which is underfunded. The Ombudsman also has a vital role in inspecting places of detention to ensure that detention conditions are humane. And there the targets are similarly dismal. They have a target that only 80% of their recommendations in this area are accepted. Given that these are recommendations to end inhumane treatment, I'd expect that target to be 100%. Then there's this:

There are also approximately an additional 130 aged care facilities with dementia units that may fall within our designation in respect of health and disability places of detention. If so, we would need to seek additional funding in order to conduct regular inspections of these facilities.

Yes, they're not even funded to inspect every class of detention facility - which means inhumane treatment may be going undetected and uncorrected.

These are serious problems. And the root cause behind most of them seems to be underfunding. The Ombudsman is our watchdog against the government. If we want it to do that job effectively, its needs to be funded properly. But what politician would ever want to do that?

Fiji: Intimidating democracy

Fiji will be holding elections in three months to return the country to democratic government. But the military is clearly worried that their candidate - dictator Voreqe Bainimarama - might not win. So they'll be sending soldiers to political meetings to "monitor" them:

Fiji's military chief Mosese Tikoitoga says military officers will attend political gatherings as the military needs to be informed of political parties' manifestos.

The explanation doesn't wash. party manifestos get published, and parties campaign on their contents. If the military wants to know what's in them - something a democratic military has no legitimate interest in, I might add - then all they need to do is read the papers. Sending soldiers has only one purpose: to intimidate the opposition, and make an implicit threat of another coup if the "wrong" party wins.

Australia returns refugees to persecution

Non-refoulement is a key principle of international law, which forbids the return of a victim to their persecutor. Its encoded in both the Convention Against Torture and the Refugee Convention. But in its efforts to shut out refugees, Australia is now abandoning it:

Tamil asylum seekers believed to have been intercepted on astricken fishing vessel off Christmas Island might be forcibly returned directly to south Asia by the Australian government.

Immigration Minister Scott Morrison said on Monday night the government was prepared to talk with any country to enforce its policy of stopping boats from reaching Australia.

If the asylum seekers are in Australian custody, they are being held without communications. The last contact made by satellite phone was at the weekend.

Removing the asylum seekers from Australian territory would be illegal under international law.

Sri Lanka is a torture-state whose government committed numerous war crimes during its civil war. The government use rape and sexual violence to brutalise the Tamil population. Returning people to a government which does this is a clear violation of international law, and makes Australia responsible for these refugees' subsequent treatment. But Australia's racist government doesn't care.

"Talking about the things that matter"

There's been appalling news today about the housing crisis, with the $34.53 increase in the annual average (not median) massively outstripped by a $38,000 increase in the average house price. So naturally Labour is talking about resurrecting the Moa:

Trevor Mallard continues to push his idea that moa may one day roam in Wainuiomata, despite his leader saying the "moa is not a goer".

Labour's Hutt South MP presented the idea to 30 or so businesspeople at a development breakfast in the Lower Hutt suburb Wainuiomata.

While admitting it sounded "a bit Jurassic Park", Mallard said scientists had been making progress on techniques for using recovered DNA from extinct animals to reconstruct new life. Moa could return to the bush of Rimutaka Forest Park, he said.

If this is their idea of "talking about the things that matter", then its no wonder they're losing.

(I've got nothing against Moa, and I think de-extinction would be an interesting scientific project. But FFS. If you don't want the media to stop focusing on this sort of thing, you should stop offering it to them on a silver platter).

Why is John Key covering up for American murderers?

Last night, Native Affairs screened an important piece by Jon Stephenson investigating the aftermath of a 2010 revenge raid by the SAS in Afghanistan in which civilians were killed (apparently by a trigger-happy US helicopter crew). Our government has consistently refused to acknowledge any civilian deaths during the raid, despite the Afghan Human Rights Commission and their own ISAF allies reaching the opposite conclusion. Its pretty obviously a self-serving position designed to protect the reputation of the NZDF and toady to its American "friends", who define any dead Afghan as an "insurgent" (meaning civilian casualties are zero by definition). But the result is that then-defence Minister Wayne Map and now Prime Minister John Key (who signed off on the mission) have lied to us about our military's involvement in civilian deaths.

When given a choice between believing John Key, who wasn't there, and the Afghans who were and have the photos of the dead and scars on their bodies to prove it, I think its a no-brainer. Our government should acknowledge its role in this war crime. And it should acknowledge the dead and compensate their families. Its the lest we can do. And if we don't, we can blame John Key when the terrorists come knocking.