The 2004 Telecommunications (Interception, Capability and Security) Act was strongly criticised when it made its way through Parliament. Keith Locke, then a Green MP, said it gave security agencies a dangerously high level of power to intrude into the lives of New Zealanders. Others worried that the requirement for telecommunications companies to help these agencies snoop on emails and listen in on land and cellphone calls would be abused.
Time has shown these fears to be overstated. That, however, is unlikely to prevent an even louder chorus of disapproval as legislation updating the act and clarifying the activities of the Government Communications Security Bureau makes its way through Parliament.
That response has been guaranteed by the revelation that the GCSB spied on New Zealanders when it was assisting other agencies, mainly the Security Intelligence Service, which had warrants. Questions about the legality of this co-operation were raised in a report by the Cabinet Secretary, Rebecca Kitteridge. Legislation amending the 2003 GCSB Act will formalise what the agency has been doing and introduce greater oversight.
In addition, changes to the telecommunications law will update requirements for network operators to have specialised eavesdropping equipment available for use by the GCSB, as well as the police and the SIS. Operators will also be obliged to engage with the GCSB on network security "where it might affect New Zealand's national security and economic wellbeing".
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According to the Communications Minister, Amy Adams, these changes "will not in any way alter the authority of police or intelligence and security agencies to intercept telecommunications, or reduce the checks and balances on how these agencies can access and use private communications information".
It is entirely reasonable to allow the GCSB to provide specialist help to other agencies. If this were not so, the SIS, for example, would have to spend millions acquiring the sophisticated equipment operated by the other agency. There is also no doubt this work is necessary. Ms Kitteridge's report made that abundantly clear. Where valid questions will be raised is in relation to the checks and balances on the operations of the GCSB. The legislation must include cogent and compelling steps to increase these.
In one aspect of previous shortcoming, the oversight by the Inspector-General of Security and Intelligence, this appears to have been achieved. Previously, holders of that position have been passive and their monitoring of the GCSB inadequate. The failure to consider the possible illegality of the agency's work with the SIS was an obvious consequence. The amending legislation improves matters by requiring the Inspector-General to conduct unscheduled audits of the GCSB's procedures and compliance systems. Complaints can also be more actively pursued.
Less convincing is the procedure for authorising interception warrants. That remains with the Prime Minister, although the Commissioner of Security Warrants must be involved if the purpose is to intercept the private communications of New Zealanders. The new legislation also requires "satisfactory arrangements" to be in place to ensure the warrant is not abused. But many doubters would surely be reassured if the level of scrutiny was heightened.
New Zealand First, as a condition for supporting the legislation, wants every warrant to be reviewed within three weeks by an independent authority selected from the judiciary, the Defence Force and the police. This, it says, would give the public confidence they are not being unfairly spied upon. It is right. A little tinkering along these lines would help smooth the passage of what should be largely uncontroversial changes.