Chris Barton: Can NZ say no to the US?

The Waihopai Valley Satellite Station near Blenheim. Photo / NZH

Can New Zealand say no to the United States of America? This is the difficult question at the heart of two pivotal and far reaching decisions about to be made.

Our parliament is deliberating whether it's OK for the NSA to spy on all New Zealanders all of the time. And our Supreme Court is deliberating whether a United States request for extradition trumps the fair process of New Zealand law.

Saying no to such a powerful ally is never easy, but there is some precedent for such a stand on principles - in New Zealand's case its rejection, in 1984, of nuclear-powered or nuclear-armed ships using New Zealand ports.

But any attempt at such a principled denunciation of mass surveillance of New Zealanders by the Unites States security agency and what some have called "its New Zealand subsidiary", the GCSB, seems doomed to fail. That's because of the so called "Dunne Deal" by United Future MP Peter Dunne, who has negotiated his principles on the basis of having "a willing buyer and a willing seller", handing the National Party a slender one vote majority to pass the GCSB Bill and, presumably, the equally contentious TICS Bill.

Dunne's claims that the concessions he has gained mitigate concerns about mass surveillance have been roundly derided as illusory. His mental gymnastics - especially in light of his own privacy being breached - reflects a breathtaking state of cognitive dissonance. On the one hand Dunne says there is truth to the claim that "there is still no mechanism in the new laws to ensure our private communications are not fed into any kind of global surveillance programme, like the NSA's Prism". On the other he says that's beyond the scope of what GCSB does within New Zealand and is a debate that should be dealt with separately.

This is the irreconcilable aspect of the GCSB Bill that is so chilling - that it makes legal the indiscriminate spying on of New Zealanders, but remains silent on the mechanism under a Kafkaesque don't-tell regime to protect national security. The illegal surveillance of New Zealand resident Kim Dotcom and others tells us, however, that the agency doing the spying is the GCSB and that metadata has indeed been harvested.

Thanks to the ongoing revelations from the former NSA contract employee Edward Snowden, we also now know how it's done - through a massive "Five Eyes" global spy cloud, of which New Zealand is a part, and data-mining software that collects "nearly everything a user does on the internet".

Yet, as Tech Liberty's Thomas Beagle and others have pointed out, the GCSB is silent on both metadata and the means of harvesting it, storing it and accessing it. Worse still the vague wording of the GCSB Bill indicates that's precisely what is being envisioned - permission to access the treasure trove of all New Zealanders' metadata and communications that has been collected and stored for some considerable time by the NSA and its Five Eyes partners.

How can this be? As Dr Rodney Harrison QC pointed out at a public meeting to stop the bill, it's a virtual certainty that operations at New Zealand's Waihopai spy base, part of the Echelon network opened in 1989, "are tacitly treated by government and the GCSB as an operation of the USA and other security partners not covered by the New Zealand legislation".

Dotcom, who was also at the meeting, was more specific: "As part of the Five Eyes spy network New Zealand is feeding data into the NSA spy cloud and is also extracting data from it when needed." That's not all. Through software such as the XKeyscore tool - more prosaically described as "Prism Google" - Dotcom claims the NSA can gain access to all communication, email, messaging and phone calls which are also stored. Ridiculous, paranoid conspiracy? Look at the latest revelations which show telecommunication companies including BT, Verizon, Vodafone and others routinely giving up information to Britain's GCHQ security agency, also part of Five Eyes.

The question New Zealand citizens are being denied the chance to debate is whether we want to be a part of this routine mass surveillance dictated by Washington; whether such a wholesale surrender of privacy is necessary, or even desirable, to combat terrorism; and whether we can opt out of Five Eyes and still remain a friend of the United States.

Pausing to consider such matters has been the common recommendation of all those who oppose this Bill - a list that includes Internet NZ, The Law Society, the Human Rights Commission, and the Privacy Commissioner plus Labour, the Greens and New Zealand First, and the Maori and Mana parties. For Dame Anne Salmond, another who objects, the matter goes to the heart of our democracy - transforming the GCSB from a foreign intelligence agency "into one that spies on New Zealand citizens and residents - a kind of electronic McCarthyism."

It also goes to the heart of New Zealand's sovereignty - our right to independent self-government without interference from outside - which is currently under consideration by our Supreme Court. There, the question is whether Dotcom and his co-accused have a right to see some of the documentary evidence against them in the extradition hearing which seeks to remove Dotcom et al to the United States to face charges including conspiracy to commit racketeering, money laundering and criminal copyright infringement.

Once again it's a tricky situation because New Zealand has a reciprocal extradition treaty with the United States which means both countries agree to co-operate with one another under the concept of "comity of nations". The treaty says before extradition takes place, our court has to be satisfied there is a prima facie case against the person under New Zealand law. Our Extradition Act also makes it clear that extradition hearings are not trials and that what the extraditing county has to do is provide a "record of case". Our law sets out pretty clearly what that means:

"A record of the case must be prepared by an investigating authority or a prosecutor in an exempted country and must contain-

(a) a summary of the evidence acquired to support the request for the surrender of the person; and

(b) other relevant documents, including photographs and copies of documents."

The operative word here is "must", but the United States doesn't see it that way in regard to "other relevant documents", which it's refusing to provide. It's an odd thing to refuse because the documents have clearly been provided to the American grand jury which issued the indictment against Dotcom. How it plays out remains to be seen. Unlike deliberations over the GCSB Bill, the matter will at least have five Supreme Court judges weighing argument from both sides.

But the case does raise the same question as the GCSB Bill. Do we agree to allow the rights of people in New Zealand - such as the right to privacy or justice - to be diluted or ignored in favour of international obligations? It's a question those MPs about to pass the GCSB bill should ask, keeping in mind, on a matter as important as this, they are elected to represent the people not their party.

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