The Government’s apparent response (at least according to Kiwiblog) to news that New Zealand has been spying on the Chinese is that they spy on us so what is there to worry about? There have also been suggestions by the usual suspects that the work of investigative journalists in printing this information is somehow treasonous. Such comments are designed completely for local political consumption and for those limited purposes may work. But I am sure that the Chinese are fuming and wondering about the appropriate response.
The question will be asked what did John Key know about this activity, assuming of course that the planned interception occurred, and the answer must be that he knew what was happening. In fact he probably authorised it.
Putting to one side questions about whether or not the interception breached the Vienna Convention on Diplomatic Relations the legality of the interception shows how loose the Government Communications and Security Bureau Act 2003 is.
The interception is presumably one authorised under section 8B of the Act which provides:
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 provide 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.
So Key must have been told, presuming the interception happened while he was Minister in charge.
I would not be surprised if he actually authorised the interception. Under section 15:
15 Interceptions for which warrant or authorisation required
(1) Unless authorised by an interception warrant to do so, neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may—
(a) physically connect an interception device to any part of an information infrastructure; or
(b) install an interception device in a place for the purpose of intercepting communications that occur in the place.
Under section 15A the Minister in charge has to authorise the granting of an interception warrant. And the Minister had to consult with the Minister of Foreign Affairs before issuing the warrant. There is power under section 16 for warrantless interceptions but if they applied to this case very little activity would require warrants to be obtained.
Putting to one side the basic issue about the stupidity of such action you have to wonder if the action is in breach of the country’s international obligations concerning diplomatic communications. Under Clause 27 of the Vienna Convention on Diplomatic Relations official correspondence is meant to be inviolable and the receiving state is meant to permit and protect free communication for official purposes. To suggest that the GCSB legislation allows a Minister to make a decision that breaches international obligations is laughable.
It is now clear why John Key transferred obligations for the GCSB to Chris Finlayson. He must have anticipated after the Snowden revelations were made public that this news was on the way and wanted to avoid questions on the subkect.
It makes you wonder what will be disclosed next.