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Is GCSB using increased awareness of mass surveillance to justify mass surveillance?

Written By: - Date published: 1:00 pm, March 31st, 2015 - 21 comments
Categories: Abuse of power, john key, national, telecommunications - Tags: ,

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.

From Radio New Zealand:

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.

The Government Communications Security Bureau (GCSB)’s spy base at Waihopai, near Blenheim.

It will form part of the Inspector-General of Intelligence and Security’s wider inquiry into complaints about the bureau following the release of documents by the American whistleblower Edward Snowden.

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.

21 comments on “Is GCSB using increased awareness of mass surveillance to justify mass surveillance? ”

  1. Tracey 1

    RNZ national said Key was “relaxed” about what GCSB is doing. I feel a post coming on listing and linking to everything that relaxes Mr key.

    • exitlane 1.1

      Tim Groser has said publicly that expects that all of his phone calls to be intercepted. That expectation could mean the GCSB could spy on him and any other New Zealander with similar expectations.

      And still we have many media outlets (and David Shearer) parroting that the GCSB “cannot spy on New Zealanders” !

      So which communications of NZ’ers does GCSB regard as not private because it is no longer reasonable to have an expectation of non interception ? –
      Web browsing and browsing history ?
      Facebook posts, personal details, “friends” and comments?
      Unencrypted emails texts and chats – both content and metadata?
      Unencrypted landline calls? mobile calls? Skype calls? – both content and metadata?

      • tracey 1.1.1

        I guess we finally have an admission from Groser that nothing he says in phone calls matters…

        Yes, they have been steadfastly setting up this meme of expectation of being spied on in ordinary circumstances, usung the media and some bloggers to spread the word… then they can argue the particular wording of the legislation.

        • saveNZ

          How does Groser get confidential information through…. pigeon?

          Or is he thinking he has nothing important or confidential to report back, in which case what’s the point of him?

          • tracey

            he speaks out of both sides of his mouth… and assumes everyone does…

            he also has revealed that the important stuff is not recordable…. or traceable… and therefore he can never be held accountable…

          • exitlane

            The mechanics of how you communicate is not the point. What does count is whether you have an expectation of interception and whether this is reasonable.

            When 70% of Kiwis surveyed say they expect spy agencies to intercept then you have a societal change in expectations which kicks open the door for even more interception

            A self fulfilling prophecy – all thanks to the changes forced thru Parliament by Key against the advice of the Law Society and Appeal Court judges

        • adam

          “I guess we finally have an admission from Groser that nothing he says in phone calls matters…”

          Belly laugh of the day – Thanks Tracey

      • Paul Campbell 1.1.2

        So while Mr Grosser expects his phone calls to be intercepted and passed to the Americans, I on the other hand have an expectation of privacy.

        If you follow the GCSB’s supposed reasoning it’s obviously the expectations of the person doing the calling (and the person receiving the call) that determines whether the GCSB can record it.

        Apparently the GCSB think they can read minds …. it’s the only way I can see that they can know whether they’re allowed to record a call …. which I guess is even scarier

        • exitlane

          The expectations of the person calling/emailing/web browsing are only part of the equation. The other part is whether that expectation is “reasonable”

          So what would a reasonable person expect? 70% of kiwis survey by Stuff Ipsos recently believed their communications were being intercepted.. hardly surprising – or unreasonable given what we know thanks to Snowden.

          Thus it becomes a circular argument working in favour of the spies – the more we expect interception – the more the spies can deem your communication as not private – and open to snooping. How very convenient.

  2. ghostwhowalksnz 2

    I would have thought that they originally intended that to cover emails which could never be considered secure.

    But of course now a lot of people have home wifi which could be considered to be insecure as well.

    I think this part of the statute was interesting

    “an unincorporated body of persons consisting principally of foreign organisations or foreign persons that carry on activities wholly outside New Zealand:”

    Thats got Greenpeace written all over that one, since they use a lot of overseas people in their local leadership

    • RJL 2.1

      “…wholly outside New Zealand”

      Greenpeace is active in NZ. So would seemingly be excluded.

  3. ianmac 3

    Remember the anger and the huge reaction from Key in 2008 over the possibility that his conversation with Banks might have been overheard? How dare anyone record his words without his say-so.
    Nothing to hide. Nothing to fear. HA!

  4. emergency mike 4

    Wow so the GCSB isn’t monitoring private conversations because… ‘reasonably’, by their legislated definition, private conversations no longer exist. Kafka meets Orwell indeed.

    • Murray Simmonds 4.1

      Yep, that’s it emergency mike.

      Seems to me its a classic “Catch-22” situation.

      A private conversation is one that you wish to be confined to you, the person you are conversing with, and no one else.

      But there are no private conversations because all conversations carry with them the expectancy the the conversation may be intercepted.

      What kind of moron does the GCSB get to draught its law-changes these days?

      • emergency mike 4.1.1

        “What kind of moron does the GCSB get to draught its law-changes these days?”

        I can’t find a link, but I think I recall Greenwald claiming that the NSA ‘helps’ it’s five eyes partners draft legislation.

  5. Melanie Scott 5

    So Mr Grosser’s conversations are being hoovered up by the GCSB? Interesting. Presumably they are passing them on to the NSA for perusal at their leisure. When the NSA find out Mr G is a Muslim…?

  6. grumpystilskin 6

    I expect my communication is being logged, just as you all should. Nothing is secure. My son is a programmer and when I asked for advice when my sites were hacked and used for bank phishing scams he just shrugged and said there’s not much I can do..
    Now that quantum computers are nearly (or do exist, depending on who you ask) a reality. No system is safe.
    Assume everything is either being read or will be when the need arises.
    Just remember, socially we are only a few years behind the states. Think of those implications and whats happening over there. IE: In the movie “Terms & Conditions” a tv crime writer was interviewed by police after searching google on “how to kill his wife”. The kicker was that he’d just moved house and only his landlord knew he was there, no govt agency had a copy of his new address..

    • tc 6.1

      Your son is correct, by the time a scam/weakness is published its already been and done what it was designed to do. You only read about what they want you to also.

      My advice to anyone not wanting something known, don’t store/convey it electronically. Old school is good school.

      Back up in multiple physical sites not linked to each other and do it multiple times each day. VM is great at this but at a cost. Practice recovery from backup also in case it’s been corrupted or altered.

  7. saveNZ 7

    I look forward to the review, but I am not holding my breath that it will be truthful or accurate. Love how GCSB are using semantics to try to legally justify mass surveillance while denying they are doing it.

    Our politicians seem to not care what Kiwis think, (they just assume that all their important ideas are what everyone wants). That is why voters are sending a message. Not sure the interpretation of the message has been read accurately by many politicians or they understand that they should not override public opinion. That is called dictatorship.

  8. Ken Martin 8

    Elected dictatorship – likely to be the same no matter who forms a government.

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