Paul G. Buchanan: GCSB bill going too far too fast

GCSB director Ian Fletcher is running an agency in urgent need of review.

Opinion

An inquiry into the NZ intelligence community is needed before new legislation, writes Paul G. Buchanan.

In recent weeks the Herald has featured two pieces supporting proposed changes to the 2003 GCSB act. The first claimed that the changes would help prevent a Boston Bombing scenario. That ignores the fact that US intelligence agencies could not do so even with their massive meta data-mining schemes and a tip from Russian authorities. Nor could they prevent the Fort Hood massacre even though the perpetrator was in regular email contact with an al-Qaeda leader in Yemen prior to the shooting.

The second claimed that those who oppose the bill are scaremongers and uninformed, even though the Law Society and internet NZ, as well as other professional groups, have registered their opposition on legal as well as technical grounds. The author also asserted that because civil servants drafted the proposed changes, we should accept them in good faith.

I beg to differ. There is clearly a need to "tidy up" the legal framework governing GCSB activities on home soil because under the current act the role of the GCSB in domestic espionage is murky. But civil libertarians and privacy rights activists have legitimate reason to oppose the GCSB bill in its present form.

The bill expands the terms and conditions under which the GCSB can engage in domestic espionage, including reasons that have nothing to do with national security and for agencies unrelated to it. Those responsible for issuing the warrants under which the GCSB would "assist" domestic agencies would be those who currently do so, in a cross-signed fashion. In light of past excesses and mistakes it is evident that leaving warrant issuance to the Prime Minister and a retired judge (the Commissioner for Warrants) is pure folly even when done in combination. These are the individuals who were on watch during the Dotcom raid and, in the case of the Prime Minister, claimed ignorance after the fact as to how and why the GCSB became unlawfully involved in it.

The definition of threat to national security under which the GCSB would act is too nebulous and broad to prevent mission-creep into common law enforcement and encroachments on individual and group privacy. For example, under the proposed legislation the GCSB could assist the Ministry of Primary Industries to spy on environmental activists on behalf of fishing, logging or mining interests if their protests were deemed injurious to the economic well-being of the nation, which can be construed as a threat to national security under current definition of the term.

The oversight mechanisms proposed by the Kitteridge Report are a veneer on what currently exists. Even if bolstered by a deputy and some additional clerical staff and funding, the inspector-general of intelligence and security is simply too dependent and too powerless to effectively serve as the overseer of the New Zealand intelligence community. Without effective independent oversight, such as that which could come by making the inspector-general's office a department of Parliament responsible to a parliamentary committee with powers of compulsion under oath, the room for unaccountable manipulation of intelligence flows and analysis remains great.

The Telecommunications (Interception Capability and Security) Bill that accompanies the GCSB bill is more draconian than similar legislation under the US Patriot Act. It would compel telecommunications companies to provide access to their source and encryption codes (that is, provide warrantless access before the fact to private accounts when no threats are evident). Since New Zealand is not on the frontline of inter-state cyber espionage or the so-called war on terrorism, it is an overreach. What is the problem in requesting voluntary telecommunications company co-operation with national security investigations, particularly when they are clearly focused on clear and present threats? What telecommunications provider would refuse such a request, especially if issued under warrant specifying the reasons?

By expanding the GCSB's domestic "assistance" role, the proposed changes run the risk of deviating it from its main foreign signals intelligence and counter-cyber espionage efforts. It will add further burden to its already stretched staff of analysts, engineers, linguists and cryptographers. Since increased funding and recruitment are circumscribed by the present climate of fiscal austerity, it does not appear likely that resources for the GCSB will be increased commensurate with the increase in its domestic assistance authority.

Interestingly, the GCSB and telecommunications bills were proposed soon after issuance of the Kitteridge Report on the GCSB, which was driven by the unlawful electronic monitoring of Kim Dotcom and associates by that agency. Given the level of detail in the bills, that suggests that they were drafted before Rebecca Kitteridge's findings and recommendations were finalised. This contradicts the Government's claim that the bills came in response to the findings of that report.

In a world in which threats are increasingly "intermestic" or "glocal" in nature and in which the boundary between national law enforcement and international security is increasingly blurred, there is reason to adjust the legislative apparatus governing the role, scope and functions of the New Zealand intelligence community, including its international commitments. At present the GCSB and sister agencies appear rudderless, unsure of who and what purpose they serve, much less how they should prioritise their essential responsibilities.

This is why a full inquiry into the New Zealand intelligence community is needed before any reforms are made to its legal architecture, especially given that the last review of New Zealand intelligence operations occurred in the 1970s.

Much has happened since then, both in terms of the nature of national security threats as well as the technologies they employ and those used to counter them. It is therefore prudent to pause and review how New Zealand intelligence operations are conducted rather than rush to pass legislation that retroactively exculpates past unlawful behaviour by the GCSB while expanding the reach of those who authorised it.

Paul G. Buchanan is the director of 36th Parallel Assessments, a geopolitical and strategic analysis consultancy.