Thames Lawyer Denis Tegg has been doing some sterling work in unravelling what the GCSB is up to. He has recently been able to persuade Inspector-General of Intelligence and Security, Cheryl Gwyn to investigate whether the GCSB is using increased awareness of mass surveillance as a legal justification for mass surveillance.
The country’s spy watchdog is to investigate whether the Government Communications Security Bureau is using its interpretation of private communication to spy on New Zealanders.
Under the law governing the GCSB, a private communication does not include any communication where people ought to reasonably expect that it will be intercepted by another party without their permission.
Thames lawyer Denis Tegg worries that using that interpretation the bureau is able to spy on people here without a warrant.
Mr Tegg said that ironically the disclosures by Edward Snowden had led to more people expecting that their communciations would be intercepted.
“That has, I think, substantially changed the public perceptions of what their expectations are of privacy although in this case it’s actually expectations of whether their communciations will be intercepted, which is a slightly different concept.
“And so I think the whole ground has shifted in terms of that definition and leaves it open. So that’s why I think we need to know just how the GCSB is interpreting this clause in the Act.”
He had complained to the Inspector-General of Intelligence and Security, Cheryl Gwyn.
While Ms Gwyn would not respond to his specific complaint, she wrote to him saying her investigation would include looking at how the GCSB interpreted private communication and whether its collection of information raised questions about that interpretation.
The basic problem is that under section 4 of the GCSB Act a private communication is defined as:
… a communication between 2 or more parties made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but … does not include a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so …
Private communications between New Zealanders are meant to be protected. But from Tegg’s analysis the more publicity there is about surveillance the less legal protection there is against such surveillance occurring. How Kafkaesque can you get.
Key’s often repeated comment that what the GCSB is doing is perfectly legal fills me with no confidence whatsoever.
Tegg’s proposal is the only realistic means of having this important issue considered. And if this interpretation is being used to permit mass surveillance of Kiwis then an urgent law change is needed.