Audrey Young 's Opinion

Audrey Young is the New Zealand Herald’s political editor.

Audrey Young: Academic up against heavies on GCSB bill

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Intelligence-studies lecturer a lone voice in support of spy bill

Jim Veitch says with technology changing so fast, the law is always playing catch-up. Photo / Mark Mitchell
Jim Veitch says with technology changing so fast, the law is always playing catch-up. Photo / Mark Mitchell

Jim Veitch cut a lonely figure at the GCSB hearings this week, figuratively speaking.

Of all of the submitters appearing before Prime Minister John Key and Parliament's intelligence committee, he was the only one who had a kind word to say about a new law that will expand the spy agency's legal powers.

An academic who has made a life's study of terrorism and intelligence and security issues, Veitch was alone in saying: "I welcome and support the Government Communications Society Bureau and Related Legislation Amendment Bill."

It was a stark contrast to heavyweights of the legal fraternity, internet specialists, dedicated life-long activists and civil libertarians who were disturbed as much by the consequences of what the bill does not say as those for what it does.

"You may look at this GCSB bill and see some mild tweaking of the current law," said Thomas Beagle of Tech Liberty.

"We look at it, and see it as the moment New Zealand changed from a society that investigates bad guys, subject to judicial oversight, to being a surveillance state where the Government is always watching and recording everyone just in case they are thinking about doing anything wrong."

Veitch was a daily fixture on New Zealand television screens after the September 11 terrorist attacks in the United States.

He has re-emerged as the go-to person for an alternative view to the wave of opposition to the bill.

Veitch knows his intelligence agencies. He has interacted closely with them as an academic. He helped to set up a course in intelligence studies at Victoria University's School of Government. It's a safe bet that some of the spies took the course.

He said it took two years to negotiate support from Government departments, including ODESC, the Officials Committee for Domestic and External Security Co-ordination.

It was the first time a university in New Zealand or Australia had proposed teaching intelligence studies.

"It has been done in England - at Cambridge - for 30 years and other places in England and in the United States," he said.

But because it was the first time in Australasia, a bit of thought went into getting government departments on side.

"If you tell them what you are doing, you'll get their students coming to take courses.

"What we argued was that we could benchmark standards and help managers and so on and determine the levels their staff had reached."

He supports the bill because he believes it is allowing the law to catch up with surveillance technology.

There is no concern that the agency may have been acting outside the law. The reality is, he says, with technology developing so fast that "legislation tails practice".

That would also be the case in another 10 years when the law would need updating again to catch up with technology.

Veitch knows about the work of the GCSB and the specialist equipment it shares with other Government agencies, which will explicitly be authorised under the bill. "But I can't talk about it," he says. "There are lines that I just don't cross."

He said the way the GCSB had operated until recently was that the police or SIS had asked for GCSB help to "confirm what they probably already had".

He said GCSB was not used as a primary source of collection and any evidence gathered with the assistance of the GCSB could not be used in a prosecution.

If that is correct, his statement is the closest anyone has come to explaining how the foreign intelligence agency convinced itself over many years that it could do something on the domestic front expressly prohibited in its empowering legislation: it could lend its expertise to "confirm" what others "knew" as long as the information it collected was never produced in a court of law.

When GCSB director Ian Fletcher issued a statement in May saying "police advise that no arrest, prosecution or any other legal processes have occurred as a result of the information supplied to NZSIS by the GCSB", that was not sheer luck; it was evidently a condition of GCSB's assistance.

"Helping others" is what started the law change.

The surveillance of internet businessman Kim Dotcom turned out to be unlawful because he was a New Zealand resident, but a review threw light on 88 other cases of surveillance of New Zealanders mainly for the SIS.

Now that the law is to catch up with practice, it will bring benefits: the evidence that the domestic agency acquires in future with the help of the GCSB will now be above board and legally sanctioned, and will therefore be able to be used in prosecutions.

That is likely to put greater demand on their services.

The bill specifies only the Police, the SIS and Defence as being the future beneficiaries of GCSB's sophisticated interception assistance (so long as they are duly warranted).

It may not be long before Customs, Immigration, Inland Revenue and the Serious Fraud Office and others are calling on their ministers to be added to the list.

Contrary to what John Key says, Veitch believes that the new law would allow the spying on Kim Dotcom.

"I'm of the opinion it would be lawful," he said. "But I've noticed the Prime Minister saying it wouldn't be lawful and I wonder why he is saying that because what is the purpose of the bill if it is not to make that situation lawful."

Some submitters, including Vikram Kumar, Dotcom's chief executive at Mega Ltd, paid their respects to the professionalism, hard work and relatively low pay of staff at the GCSB. (Kumar worked with the GCSB in a previous capacity at the State Services Commission).

But the expansion of powers in New Zealand against the backdrop of Edward Snowden's revelations of mass metadata collection by the US's National Security Agency has undermined the "trust us" attitude.

The use of a minister's metadata - information about communication rather than the content - in forcing Peter Dunne's resignation and the use of a journalist's swipe card in a related inquiry may have turned the prevalent sentiment from "trust us" to "we're watching".

With John Key silent about the extent to which the GCSB collects metadata and what it does with what it gets, what it shares with its Five Eyes intelligence partners in the US, UK, Australia and Canada, metadata has emerged as one of the big issues.

The bill is silent on metadata.

The assumption is that the GCSB currently collects it about New Zealanders, despite not being explicitly empowered to, because it is not explicitly prevented from doing so under the current law's protections against spying on New Zealanders.

Susan Chalmers of internet NZ said metadata should not be dismissed as something less important under privacy norms than normal communications.

"This is because metadata in many situations could be more revealing than the actual communication itself."

Tech Liberty's Beagle raised concerns about the bill's open-ended wording, allowing warrants and computer access authorisations to target any number of people at a time, systems, or classes of people and systems at a time.

(A "class of person", for example, could be all people who sent an email to the United States last year).

He wants to ban GCSB from setting up databases using metadata from people not under investigation.

He is not alone in saying that the GCSB should not be able to collect metadata on any person they are not currently investigating. It was a point made by several submitters.

The way to do that would be to include metadata in the definition of protected "private communications" of New Zealanders.

Damien Rogers, a former senior adviser at the GCSB and now expert in international security at Massey University, also believes metadata should be protected.

Warranted collection had to be signed off by the Prime Minister in consultation with the Minister of Foreign Affairs and Trade.

The warrants were required because they intruded on people's privacy or people's expectations of privacy.

"But when it comes to routine running of the foreign intelligence machine, the protection provisions need to encompass the metadata.

"I would have a high degree of expectation of privacy on that metadata and it is as valuable as the content of intercepted communications."

Most Western intelligence agencies had analytic teams that had developed whole disciplines around making sense of that information.

"It is very valuable from an intelligence point of view."

Rogers won't discuss his work with the GCSB or comment on the suggestion by Kim Dotcom that a "spy cloud" exists containing "every email, phone call, chat message, SMS message ... of every New Zealander".

Key calls Dotcom a "well known conspiracy theorist".

Jim Veitch is familiar with the tradition signals intelligence role of the GCSB, describing the way in which the well-established rules of the Five Eyes partners operate - with the Echelon satellite system monitoring and picking up information going out of New Zealand and across the world.

"The rule is that New Zealand can't use material that is picked up from New Zealand. But America can be picking it up, for example, and looking through it, and if they find anything of any substance then they will draw it to the attention of New Zealand. And then New Zealand has to check it out."

As far as metadata is concerned, he says, "I don't think they are necessarily interested in that sort of area - at least at the present time."

- NZ Herald

Audrey Young

Audrey Young is the New Zealand Herald’s political editor.

Audrey Young is the New Zealand Herald’s political editor, a job she has held since 2003. She is responsible for the Herald’s Press Gallery team. She first joined the New Zealand Herald in 1988 as a sub-editor after the closure of its tabloid rival, the Auckland Sun. She switched to reporting in 1991 as social welfare and housing reporter. She joined the Herald’s Press Gallery office in 1994. She has previously worked as a journalism tutor at Manukau Technical Institute, as member of the Newspapers in Education unit at Wellington Newspapers and as a teacher in Wellington. She was a union nominee on the Press Council for six years.

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