It is possible that a deliberately enabled loophole in our current GCSB law opens the way for the GCSB to legally spy on New Zealanders.
Denis Tegg reports that there are problems with the definition of “privacy” in the GCSB Law, following its amendment last year. He argues that most people now have an expectation that our private communications may be intercepted at some point.
These increased expectations of interception profoundly affect the legal interpretation of a critical phrase, “private communication”, in the GCSB Act.
It is critical because it is supposed to provide protection for New Zealanders against the GCSB’s most intrusive intelligence gathering and warrant-less interception powers.
Under the act a communication can be “private”, and therefore protected from interception, only if one of the parties has a “reasonable expectation” that their communication will not be intercepted.
Once we reasonably expect that our everyday communications will be intercepted, the GCSB can lawfully deem those communications to be not private.
John Key has stated that metadata won’t always be deemed part of private communications. And metadata are the records of dates, times, names of participants in our communications.
Tegg also points out that the Snowden documents show that the US spy agency NSA actively looks for ways to build surveillance loopholes in the legislation of their spy partners in foreign countries.
Tegg cites some overseas examples:
US authorities recently argued that even users of encrypted email service Lavabit did not have a reasonable expectation that their emails would not be intercepted.
In the UK, intelligence officials have contended in court that two users messaging each other on Facebook were not communicating with each other but with the Facebook “platform”.
This Guardian article from June 2014 argues that surveillance of social messaging, such as on Facebook, can be done without a warrant by the the GCHQ, the UK’s equivalent agency to NZ’s GCSB.
His submission explains that searches on Google, Twitter, Facebook and YouTube are likely to involve communicating with a “web-based platform” abroad and are therefore “external communications” which do not “require a person or a set of premises to be named in the interception warrant”. Emails sent or received from abroad could be intercepted in a similar way.
I’m no fan of Facebook, and do indeed assume someone in a position of power could read any messages I exchange on the platform. Reflecting on this, I started to wonder why the likes of Cameron Slater, National Party staffers and Judith Collins would use Facebook messaging to exchange messages that have the potential to blow back on them. It suggests an attitude of impunity and assumed powerfulness.
Above all, a vote Left in the coming NZ election, will ensure that the latest amendments to the GCSB law are repealed and/or the whole law gets reviewed and revised.
We need security laws and services that keep us safe, while also ensuring privacy, that democracy can thrive, and that freedom of speech and association is protected (especially for those with relatively little power).
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