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Bad law making – GCSB Bill

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: ,

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;

and

“(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

subsection (1)—

“(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

Bureau’s functions

“(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.”

29 comments on “Bad law making – GCSB Bill ”

  1. mickysavage 1

    Thanks Karol.

    I agree the bill is as confusing as hell and it will take a few cases to try and work out what it says. Every time I read the bill I see new areas of doubt. For instance “incidentally obtained intelligence” is defined as intelligence
    “(a)that is obtained in the course of gathering intelligence about the capabilities, intentions, or activities of foreign organisations or foreign persons; but
    “(b)that is not intelligence of the kind referred to in paragraph (a)”

    Can anyone get their head around that? One way of reading it is that it is intelligence obtained in the course of gathering information about foreign organizations/persons but is not intelligence that is obtained in the course of gathering information about foreign organizations/persons. How ridiculous.

    One further thing that struck me is that “foreign organisation” now includes “an unincorporated body of persons consisting principally of foreign organisations or foreign persons that carry on activities wholly outside New Zealand”. The word “exclusively” has been replaced.

    So locals belonging to an international environmental organisation that is not incorporated can be spied on at will.

    • karol 1.1

      Thanks, micky for pointing out this. I’ve tried, with my non-legally trained mind to understand the Bill, but it just feels like disappearing down a rabbit hole – I keep needing to refer to other clauses to get interpretations of words in the original clause I was looking at.

      I’ve heard specific instances of this referred to in the House – especially re clarification of Section 8A – another clause is meant to clarify it, but doesn’t.

      The Bill really, really needs to be halted and started again, so that we can all be assured it says what is best for New Zealanders.

    • Bill 1.2

      So, if the information doesn’t pertain to the deliberate compiling of capabilities, intentions, or activities .., then it ain’t and can’t be ‘incidentally obtained information’…that helps clarify matters, dunnit? 😉

      edit. Or is it the complete opposite of that so that ‘incidentally obtained information’ that is connected to capabilities, intentions or activities can never be ‘incidental’?

      • mickysavage 1.2.1

        I haven’t a clue Bill and I have read it four times!

        I think they wanted to say that incidentally obtained intelligence is intelligence that they obtain while gathering information about gathering intelligence about the capabilities, intentions, or activities of foreign organisations or foreign persons which is not intelligence about the capabilities, intentions, or activities of foreign organisations or foreign persons but they seem to be saying it is intelligence that is obtained which is not intelligence that is obtained …

  2. Tracey 2

    “he would not allow that to happen in practice. ”

    Why not just put it in the Bill, then we don’t have to rely on him or any future PM? Why the resistance to so few words added to an already wordy Bill?

  3. SHG (not Colonial Viper) 3

    Shearer just dropped everyone in the shit.

    Hansard:

    http://www.parliament.nz/en-nz/pb/business/qoa/50HansQ_20130820_00000003/3-prime-minister%E2%80%94statements

    Summary: Shearer stupidly asks a question of the PM in Parliament that the PM can’t avoid answering, the PM tries to give Shearer a way out but he just keeps on asking the fucking question, and the answer reveals that Shearer and Key have had at least one secret meeting without the knowledge of the rest of the Labour caucus or the Greens on how Labour can get on board with the GCSB legislation.

    • karol 3.1

      Well, he just caused a diversion, and landed himself in the shit. I think his aim was to show himself to be the great negotiator. But he shows a political naivety and ineptness, and lack of understanding of Key’s slippery skills.

      He has showed he should withdraw and leave it to people with better political skills to lead the caucus. If others in the caucus didn’t know about his attempt at negotiating, it all comes back on Shearer.

      Others, like Robertson, Goff, Cunliffe, Norman, Peters have been better at pointing out the weaknesses in the Bill.

      • blue leopard 3.1.1

        @ Karol, I agree, that Shearer has shown real political naivety with the question he posed yesterday.

        The thing that disturbs me about the gaffs that Shearer (and Labour) are making is based on the understanding that political parties have advisors, people who have expertise on helpful strategic angles and also pitfalls, and I just don’t see any savvy skills in this regard being displayed by Labour on many occasions over many years.

        The Greens are clearly disciplined in the way that they structure their opposition, media releases and such like. Their questions in parliament q&a are clearly well researched. Labour is a bigger party in parliament, I assume this means they have more funding (correct me if I’m wrong, I really don’t know how these things work and would like to), yet they have near-consistently shown that they are not up with the play regarding their approach, how they choose to send their message out, what the implication of their questions are etc. Content is important, however, if it is not conveyed in a way that is understood, then it is useless.

        Arising from this train of thought is the concern that unless both Mr Goff and Shearer, and many members of caucus were/are choosing to ignore good advice that exists within their party structure, this appears to be a bigger problem than simply the leader of the caucus.

        ?? What is going on with the NZ Labour Party?

        • Colonial Viper 3.1.1.1

          There is a very thin level of expertise in some areas nowadays as Labour has burned off more and more of its professional and expert volunteer support, and in Opposition you do not have access to any expertise and resources from Govt depts.

          Wellington bubble political operators can’t land the right hits without a strong level of subject area content expertise to draw on.

    • Colonial Viper 3.2

      Oh gawd. Shearer basically gave Key license to go take the discussion anywhich direction that Key wanted. And so, Key ran rings around Shearer with Secret Squirrel stuff about waiting for Norman to leave and taking the stairs so that other people would not see their secret meeting etc.

      I didn’t really see any denials from Shearer over Key’s statements of events either.

      • Tim 3.2.1

        Labour really is making things easier for the disillusioned – even those lifetime LP suppotas:
        Keep it simple, forget all the maccinations and cudda shudda wuddas….. Just vote Green, or Mana.
        In the overall scheme of things (just as after the neo-lib wave became fashionable), it was always going to take a generation to fix the damage.
        Currently Labour isn’t doing much to distance themselves from all that – SO BE IT! It’s a shame it may well be the demise of the ‘brand’ – but its bloody obvious the principles behind that brand exited stage right a long time ago!

  4. SHG (not Colonial Viper) 4

    Clifton:

    Mr Shearer had asked Mr Key to confirm whether he or his office had held any meetings with Labour in the run-up to the bill. “I can’t believe he is asking that question,” Mr Key boggled, indicating that he would answer it, but it would not be fun for Mr Shearer if he did.
    Mr Shearer said to bring it on – so falling into another question time heffalump pit. For one thing, cross-party talks are supposed to be high-trust affairs, used sparingly and with the utmost discretion. For another, question time is the clumsiest of forums in which to break that trust.

    Unbelievably stupid.

    • Craig Glen viper 4.1

      The fact that Shearer let Key of the hook yesterday and put him self squarly on it was just ridicolous.

      Shearer must have a huge ego to think he could lead the NZ Labour Party its just bloody crazy but as much as I think Shearer is an idiot what do you call the caucus members who supported and voted him in against The wider party members wishes.
      Heres another poll and yup you can guess the trends people hate what the Nats are doing but they dislike the idea of Shearer as a PM more.
      http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11112107

      When are is this caucus going to put there country and voters before themselves.

      • Hami Shearlie 4.1.1

        I think we’ll be waiting a long time for that CGV! It won’t happen until they(ABC) have made sure there is no Labour Party any more!! The enormous self interest and selfishness of the ABC is absolutely breathtaking!

  5. URGENT!!!

    ATTN: Nikki Kaye!

    ‘Open Letter’

    Over 1000 signatures have now been collected of people pledging to campaign against you if you vote for the GCSB Bill!

    Nikki Kaye,
    National MP for Auckland Central

    Dear Nikki,

    Attached are scanned copies of further signatures of people pledging to campaign against you if you vote for the GCSB Bill, and ‘to encourage our families, neighbours and workmates to do the same’.

    Nikki – this now takes the total number of signatures to well over 1000 people.

    Given that your majority over Jacinda Adern is only 717 votes, this should be of some concern?

    Please, do NOT underestimate the growing concern of citizens of New Zealand, to the legislative undermining of our lawful rights to privacy, and against arbitrary search and surveillance.

    Where’s the fire?

    What’s the rush?

    Where and what is the ‘real and present threat’ to the security of New Zealanders, that warrants this railroading over our lawful human rights and civil liberties, with the slimmest of Parliamentary majorities?

    How is this a right and proper way to run our country?

    The GCSB has not yet ‘got it’s house in order’, yet you want to give them even more powers?

    The Kitteridge Report came up with 80 recommendations, of which 76 the GCSB is directly responsible for implementing.

    So far, according to GCSB Director Ian Fletcher, the GCSB has only implemented 25 out of these 76 recommendations.

    _________________________________________________________

    http://www.gcsb.govt.nz/newsroom/reports-publications/Compliance%20Review%20Progress%20Report%201.pdf

    “Of the 80 recommendations, there are 76 that the GCSB is directly responsible for implementing, and there are others, such as legislation, for which others are responsible.

    One of our greatest challenges has been finding staff with expertise in the areas we need with appropriate security clearances. Nonetheless, we have made real progress, which means we will have even greater resource to implement the recommendations.

    The first tranche of recommendations that we have implemented focuses on the things that we need to have in place immediately to function more effectively: getting new processes and systems bedded in to be business as usual, and making appointments to key roles including the Associate Director, a Chief of Staff, a Chief Legal Adviser, and a Compliance and Policy Manager.

    A total of 25 recommendations have been completed. We are on track to have another 11 recommendations implemented in the next quarter.

    Some of the recommendations will take well into 2014 to implement, as they involve longer term programmes including staff rotation, external secondments and performance management practices. ”
    ________________________________________________________

    The Privacy Commission are actively investigating my complaint (and others), regarding the unlawful spying upon 88 New Zealanders, but this process is not yet complete.

    http://www.occupyaucklandvsaucklandcouncilappeal.org.nz/wp-content/uploads/2013/08/GCSB-Privacy-Comm-Update-Letter-30_7_13.pdf

    Seriously Nikki, this is NOT ok.

    Historically, in my considered opinion, this will be a defining moment in New Zealand’s defence of democracy.

    Do you attend ANZAC commemorations Nikki, remembering those who went overseas in their khaki uniforms and never came back?

    ‘Lest we forget’?

    Please, Nikki, do the decent thing, and do NOT vote for this GCSB Bill.

    Kind regards,

    Penny Bright

    ‘Anti-corruption / anti-privatisation’ campaigner

    2013 Auckland Mayoral candidate
    ______________________________________________________________________________

  6. Treetop 6

    It is only Wednesday and I feel despondent about three awful situations of the governments making.

    1. GCSB Bill
    2. First home buyers having a longer reach to get into a home.
    3. Meridian share buyers only having to pay 60% and in 18 months time the rest will be required.

    To have all three announcements so close together is nothing to celebrate.

    Surely the 60% offer is to attract people to buy shares, it is obvious that there is nothing lucrative about being a share holder.

    • leftriteleft 6.1

      But wait. There’s still the TPP to come. More secret squirrel stuff. When will it stop.

  7. tracey 7

    Just heard grant robertson on gcsb. Impressive. Norman speaking now.

    • karol 7.1

      Both Norman and Robertson were impressive. Norman on democracy, Robertson on the failure to listen to New Zealanders & being out of touch etc.

  8. tracey 8

    I see the new govt spin is that anyone opposing is a scaremongerer… forgetting that railing al queda isnt scaremongering.

  9. Paul 9

    No longer the granny Herald. It’s Big Brother Herald.
    “Bill ‘needed right now’
    John Key says if he could disclose some of the briefings he has had about risks to New Zealand it would ”cut dead” some of the opposition to the GCSB bill.”

    Editors of the Herald hang your heads in shame.
    You facilitated this bill, as did most of the paid puppets of the corporate media.
    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11112152

    • Hayden 9.1

      John Key says if he could disclose some of the briefings he has had about risks to New Zealand it would ”cut dead” some of the opposition to the GCSB bill.

      Quick, someone take him to More FM!

  10. tracey 10

    Its not like him to breach riles when it suits him

  11. lolz in wrong place, sorry.

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