Audrey Young

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

Fears Big Brother will spy on every one of us

Goff says just 'tweaking' GCSB law will do little to convince a highly suspicious public.

Former Foreign Minister Phil Goff says "tweaking" of the GCSB bill by Prime Minister John Key will not be enough to overcome the suspicions of a wide cross-section of New Zealanders.

People wanted to be assured that the expanded powers of the foreign intelligence spy agency to spy on New Zealanders would not be abused and that they would be used for targeted surveillance, not mass surveillance.

"No matter how John Key tweaks the particular legislation in front of him, he won't overcome the suspicion, not of a small group of paranoid people but a wide cross-section of New Zealanders who are asking justifiable questions about how the bodies work, how they should work and why they are needed."

Parliament's intelligence and security committee - headed by Mr Key - is due to meet in the Beehive this afternoon for deliberations on the Government Communications Security Bureau and Related Legislation Amendment Bill.

Mr Key has Act's support but doesn't yet have the guaranteed numbers to pass the bill, let alone the large majority of votes that such bills conventionally receive.

A wide range of people and commentators have expressed concerns about the bill, including Privacy Commissioner Marie Shroff, Human Rights Commissioner David Rutherford and Law Commission president Sir Grant Hammond.

Commentators with strong libertarian values such as talkback host Leighton Smith and former Act MP Deborah Coddington also have concerns.Public meetings and protest marches are planned for this week.

Mr Goff, when Foreign Minister, was close to the operations of the GCSB. He was consulted before any warrant for interception of foreign communications was issued by the Prime Minister.

"I understand that if you have good intelligence that there is a threat being posed either by a commercial organisation abroad or by a terrorist organisation, you need to have surveillance and you need to use that surveillance appropriately," he said. "But what I don't accept is that there is a clear guarantee to the public that this doesn't suddenly become more like what the [US National Security Agency] is doing and that the organisation is actually under the clear scrutiny and authority of its masters."

Mr Key has accepted two changes: to add a set of principles to the bill which may affirm that the law should have regard to the Bill of Rights Act (protecting New Zealanders from unreasonable search and seizure); and a panel of two to act as a sounding board for the agency's watchdog, the Inspector-General of Intelligence and Security.

Mr Goff said that was still toothless and if Mr Key wanted to pass the bill with wider support he had to do more. He said if Mr Key was to persuade Labour why it was important to pass the bill quickly, it should have a sunset clause - and a review of intelligence services was needed before the bill expired.

He also believed that the intelligence and security committee should under statute be chaired by the Leader of the Opposition, instead of having the minister responsible for the agency being responsible for parliamentary oversight.

"The Labour Party is not there simply to oppose it for the sake of opposition. We are there to say we want the best possible security arrangements with the best possible guarantees to New Zealanders, that powers given are not misused and that this is targeted surveillance and not mass surveillance."

Deborah Coddington told the Herald she was not one of those who thought if you had nothing to hide, you should have nothing to fear.

"The state does have a role in protecting its citizens from evil, whether that be within our border or outside the borders," she said. "But that doesn't mean you give the state licence to go on fishing expeditions, particularly among its own citizens."

Leighton Smith this month talked about watching TV3's Campbell Live show about the bill with National-voting friends who, he said, had been shocked by the report. He was clearly concerned too.

The bill "allows for more tracking than any of us should be prepared to submit ourselves to".

There might be some who saw him as a conspiracy nut, but technology was "leading us down a certain path and unless we are very wary, we will find that it is running our lives and we won't have any comeback on it."

The big issues

Expanded powers for GCSB to spy on New Zealanders

Currently: The main function of the GCSB is to collect intelligence on foreigners and to protect the cyber security of New Zealand government communications and systems. Spying on New Zealanders is banned, unless they are suspected agents, terrorists, etc, or incidentally involved.

Proposed: The GCSB's cyber-security role will be expanded to protect important private sector systems and it will be lawfully allowed to spy for the SIS, police and Defence. It will be allowed to spy on New Zealanders in carrying out both those expanded roles, although warrants will have to be authorised by the Prime Minister and commissioner.

Expansion of type of communication

Currently: The GCSB can intercept the communications of foreigners with a warrant or authorisation if it is in the interests of national security and without a warrant or authorisation if a device is not required to be installed.

Proposed: Warrants may be issued to intercept communications:

Made or received by one or more persons or classes of persons (eg, Pakistanis who arrived in 2012) specified in the authorisation or made or received in one or more places or classes of places (eg, all emails from Qatar to NZ, and NZ to Qatar) specified in the authorisation.

Communications that are being sent from or are being sent to an overseas country.

Authorisations may be issued to access the information infrastructures of one or more specified information infrastructures (eg, Facebook, Weibo, Telecom) or classes of information infrastructures (eg, all New Zealanders on Facebook with friends in Tehran) that the bureau cannot otherwise legally access.

Metadata

Currently: Collection of metadata of foreigners is legal. It is almost certainly not for New Zealanders, though that has not been tested in court. Rebecca Kitteridge's report said the GCSB believed it could collect New Zealanders' metadata without a warrant and did so occasionally. She thought metadata fell within the definition of New Zealanders' communication and should have been protected.

Proposed: Collection of New Zealanders' metadata will be legal under cyber security function, with a warrant signed by the Prime Minister and Commissioner of Warrants; and if the domestic agency it is helping is warranted to collect metadata on Kiwis.

Collection of metadata on foreigners will still be legal.

The Prime Minister has made no statement about New Zealand's involvement in the mass collection of metadata, similar to the NSA's in the United States.

What they say

"The GCSB bill currently before Parliament trumps all other recent breaches of democratic freedoms in New Zealand ... New Zealanders must stand up for their democratic rights when they are threatened or they'll lose them."
- Dame Anne Salmond, historian, anthropologist, New Zealander of the Year

"The bill is being put before the House at a time when the activities of intelligence agencies worldwide are under serious scrutiny ... there is therefore good reason to postpone consideration of this bill at least for a short time to enable us to develop a clearer perspective on what powers New Zealand intelligence agencies should have to perform their functions."
- Marie Shroff, Privacy Commissioner and former Secretary to the Cabinet

"You might say technology is leading us down a certain path and unless we are very wary, we will find that it is running our lives and we won't have any comeback on it. That basically is where I'm at."
- Leighton Smith, Newstalk ZB host

"People in New Zealand are entitled to know if mass surveillance of data, such as metadata relating to them, is being collected through surveillance by New Zealand's intelligence services or its international agencies and, if so, for what purpose or use."
- David Rutherford, Chief Human Rights Commissioner

"The [Legislation Advisory Committee] makes a number of suggestions to add to and improve the range of safeguards in the bill to enhance the protection of citizens from state surveillance [including] introducing appropriate principles underpinning the performance of the GCSB's functions [and] strengthening the Inspector-General's oversight of the activities of the GCSB."
- Sir Grant Hammond, Appeal Court judge, Legislation Advisory Committee

"I think that Winston Peters' demands for independent monitoring of it by three people [is not] too big an ask. I think it is quite reasonable and I would be more reassured by that. I'm not one of those people who often say if you've got nothing to hide you've got nothing to fear. I'm not one of those."
- Deborah Coddington, former Act MP

"When the fact that the gathering of 'foreign intelligence' is no longer to be the touchstone for the GCSB's entitlement to conduct intelligence-gathering and in particular to intercept communications is placed alongside the open-ended breadth of the expression 'information infrastructure' a very substantial expansion of role and function is, in fact, being proposed."
- Dr Rodney Harrison, QC, Law Society

"You may look at this bill and see some mild tweaking of the current law. We look at it, and see it as the moment NZ 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."
- Thomas Beagle, Tech Liberty

"The bill lacks sufficient clarity as to the circumstances under which the bureau may exercise its three functions and as to whose communications will be gathered ... a broad reading renders the sum effect of the bill, as currently drafted, as providing access to anyone's communications whether live or stored, including internet communications."
- Jordan Carter, Internet NZ

- NZ Herald

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