Written By: - Date published: 12:10 pm, August 21st, 2013 - 29 comments
Categories: accountability, david cunliffe, grant robertson, john key, labour, law, making shit up, national, slippery, Spying, telecommunications - Tags: andrea vance, GCSB
The GCSB and Related Legislation Amendment Bill is a dog’s breakfast of a law, that confuses as much as it clarifies. John Key, in claiming the Bill will not enable wholesale spying on New Zealanders, issued a statement pledging he would not allow that to happen in practice. He did this in an email to Audrey Young and subsequently reported on in her article in the NZ Herald. This is bad law making. Instead of Key sending the Bill amendments back to the drawing board, he now says he will issue a statement before the 3rd reading in the House today, which will clarify his intent. Opposition parties say, this is not good enough – it needs to be made explicitly clear in the Bill.
The main part under debate is section 8A, 8B and 8C. Within it, there are references to other sections of the law, often not saying exactly what referring part claims. Each part of Section 8 focuses on a specific function of the GCSB: A) cybersecurity; B) Intelligence gathering; C) cooperation with other entities; D) Full power to Director in practice.
Yesterday in the House, Labour put forward an SOP asking for all the previous parts of the Bill to be reconsidered, with the aim of making explicit the points Key says he will clarify in his statement at the beginning of the 3rd reading today. Grant Robertdson explained why that is necessary and that the Bill does not include what the government MPs claim it does:
David Cunliffe in the House yesterday explained how the Bill does not include adequate protections of the privacy of New Zealanders:
Mr Speaker, there are no protections against the mass surveillance of metadata, because they are not included within the definition of quote personal communications set out in the Bill. Rather, they fall within the definition of information infrastructure in the cybersecurity provisions that include, and I quote all transmissions close quote, including anything which goes across any electronic or wireless network. That means every email, every text message, every phone call, every website visit of every New Zealander is able to be surveilled firstly in terms of its metadata, without a warrant. And secondly to establish a basis, and it may already be the case, for full interception without those warranting provisions, at least through the cybersecurity clause.
Cunliffe also says that there is not adequate oversight included in the Bill, and that John Key should ensure safe guards are in the Bill. In other speeches in the last 2 days, other opposition MPs have pointed out how oversight of the GCSB ultimately rests with the PM and some ministers, unlike in other countries where the government is not given such ultimate power.
An article on Stuff today by Andrea Vance aims to demystify the Bill. On Section 8A (on cybersecurity) and related sections 14 and 15, Vance says:
A handful of provisions set out the new rules for surveillance of New Zealanders. Section 8 of the new bill permits the GCSB to spy on Kiwis on behalf of the SIS, police or military. Section 14 expressly prevents the GCSB snooping on Kiwis. But this only applies to its foreign intelligence gathering – not surveillance for cyber security or on behalf of those other agencies.
In short, the GCSB can spy on New Zealanders under the guise of preventing cyber attacks or on behalf of law enforcement agencies.
The “protection” outlined in section 14 is extended only to private communications – not metadata or any conversations that could “reasonably” be expected to be intercepted. Some critics argue that this definition of “private communications” is too loose – and question if anyone can realistically expect internet traffic to be “private.”
For those wanting to look carefully at the detail of the relevant sections of the Bill, this is Section A:
“8A Information assurance and cybersecurity
This function of the Bureau is—
“(a) to co-operate with, and provide advice and assistance to,
any public authority whether in New Zealand or overseas, or to any other entity authorised by the Minister, on any matters relating to the protection, security, and integrity of—
“(i) communications, including those that are processed, stored, or communicated in or through information infrastructures; and
“(ii) information infrastructures of importance to the Government of New Zealand; and
“(b) without limiting paragraph (a), to do everything that is necessary or desirable to protect the security and integrity of the communications and information infrastructures referred to in paragraph (a), including identifying and responding to threats or potential threats to those communications and information infrastructures;
“(c) to report to the following on anything done under paragraphs (a) and (b) and any intelligence gathered as a result:
“(i) the Minister; and
“(ii) any person or office holder (whether in New Zealand or overseas) authorised by the Minister to receive the report.
“8B Intelligence gathering and analysis
“(1) This function of the Bureau is—
“(a) to gather and analyse intelligence (including from information infrastructures) in accordance with the Government’s requirements about the capabilities, intentions,
and activities of foreign persons and foreign organisations; and
“(b) to gather and analyse intelligence about information infrastructures; and
“(c) to communicate any intelligence gathered and any analysis of the intelligence to—
“(i) the Minister; and
“(ii) any person or office holder (whether in New Zealand or overseas) authorised by the Minister to receive the intelligence.
“(2) For the purpose of performing its function under subsection (1)(a) and (b), the Bureau may co-operate with, and provide advice and assistance to, any public authority (whether in New
Zealand or overseas) and any other entity authorised by the Minister for the purposes of this subsection.
“8C Co-operation with other entities to facilitate their functions
“(1) This function of the Bureau is to co-operate with, and provide advice and assistance to, the following for the purpose of facilitating the performance of their functions:
“(a) the New Zealand Police; and
“(b) the New Zealand Defence Force; and
“(c) the New Zealand Security Intelligence Service; and
“(d) any department (within the meaning of the Public Finance Act 1989) specified for the purposes of this section by the Governor-General by Order in Council made on the recommendation of the Minister.
“(2) To avoid doubt, the Bureau may perform its function under 5
“(a) to the extent that the advice and assistance is provided for the purpose of activities that the entities may lawfully undertake; and
“(b) subject to any limitations, restrictions, and protections under which those entities perform their functions and exercise their powers; and
“(c) even though the advice and assistance might involve the exercise of powers by, or the sharing of the capabilities of, the Bureau that the Bureau is not, or could not be, authorised to exercise or share in the performance of its other functions.
“8D Director has full powers for purpose of performing
“(1) The Director has all the powers that are necessary or desirable 20
for the purpose of performing the functions of the Bureau.
“(2) Subsection (1) applies subject to this Act, any other enactment, and the general law.”
Some of the other sections of the Bill that refer to Section A are
Sections 14 & 15, showing how convoluted and confusing the Bill is:
“14 Interceptions not to target New Zealand citizens or permanent residents for intelligence-gathering purposes
“(1) In performing the Bureau’s function in section 8B, the Director, any employee of the Bureau, and any person acting on behalf of the Bureau must not authorise or do anything for the purpose of intercepting the private communications of a person who is a New Zealand citizen or a permanent resident of New Zealand, unless (and to the extent that) the person comes within the definition of foreign person or foreign organisation in section 4. 10
“(2) Any incidentally obtained intelligence obtained by the Bureau in the performance of its function in section 8B—
“(a) is not obtained in breach of section 8B; but
“(b) must not be retained or disclosed except in accordance with sections 23 and 25.”
“15A Authorisation to intercept communications or access information infrastructures
“(1) For the purpose of performing the Bureau’s functions under
section 8A or 8B, the Director may apply in writing to the
Minister for the issue of—
“(a) an interception warrant authorising the use of interception devices to intercept communications not otherwise lawfully obtainable by the Bureau of the kinds:
“(i) communications made or received by persons or classes of persons specified authorisation or made or received in 1 places or classes of places specified in the authorisation:
“(ii) communications that are sent from, or sent to, an overseas country:
“(b) an access authorisation authorising the accessing or more specified information infrastructures of information infrastructures that the Bureau otherwise lawfully access.
“(2) The Minister may grant the proposed interception warrant access authorisation if satisfied that— “(a) the proposed interception or access is for the of performing a function of the Bureau under 8A or 8B; and “(b) the outcome sought to be achieved under the interception or access justifies the particular tion or access; and
“(c) the outcome is not likely to be achieved by other and
“(d) there are satisfactory arrangements in place that nothing will be done in reliance on the warrant authorisation beyond what is necessary for the performance of a function of the Bureau; and
“(e) there are satisfactory arrangements in place that the nature and consequences of acts done in on the warrant or authorisation will be reasonable, ing regard to the purposes for which they are carried “(3) Before issuing a warrant or an authorisation, the Minister consult the Minister of Foreign Affairs about the warrant or authorisation.
“(4) The Minister may issue a warrant or an authorisation to any conditions that the Minister considers desirable public interest.
“(5) This section applies despite anything in any other Act.
“15B Involvement of Commissioner of Security Warrants
“(1) An application for, and issue of, an interception warrant or access authorisation under section 15A must be made jointly to, and issued jointly by, the Minister and the Commissioner
of Security Warrants if anything that may be done under the warrant or authorisation is for the purpose of intercepting the private communications of a New Zealand citizen or permanent resident of New Zealand under—
“(a) section 8A; or
“(b) section 8B, to the extent that intercepting the person’s private communications under that section is not precluded by section 14.
“(2) For the purposes of subsection (1), section 15A applies—
“(a) as if references to the Minister were references to the Minister and the Commissioner of Security Warrants; and
“(b) with any other necessary modifications.
“(3) In this section, Commissioner of Security Warrants means the Commissioner of Security Warrants appointed under section 5A of the New Zealand Security Intelligence Service Act 1969.”