web analytics

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 1.1.1.1

          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 1.1.1.1.1

            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 1.1.1.1.2

            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 1.1.1.2

          “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 1.1.2.1

          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.

Recent Comments

Recent Posts

  • NZ announces a third P-3 deployment in support of UN sanctions
    The Government has deployed a Royal New Zealand Air Force P-3K2 Orion (P-3) maritime patrol aircraft to support the implementation of United Nations Security Council (UNSC) resolutions imposing sanctions against North Korea, announced Minister of Foreign Affairs Winston Peters and Minister of Defence Ron Mark. “New Zealand has long supported ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Pacific trade and development agreement a reality
    Pacific regional trade and development agreement PACER Plus will enter into force in 60 days now that the required eight countries have ratified it. Trade and Export Growth Minister David Parker welcomed the announcement that the Cook Islands is the eighth nation to ratify this landmark agreement. “The agreement represents ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Securing a pipeline of teachers
    The Government is changing its approach to teacher recruitment as COVID-19 travel restrictions continue, by boosting a range of initiatives to get more Kiwis into teaching. “When we came into Government, we were faced with a teacher supply crisis,” Education Minister Chris Hipkins said. “Over the past three years, we ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Border exceptions for a small number of international students with visas
    The Government has established a new category that will allow 250 international PhD and postgraduate students to enter New Zealand and continue their studies, in the latest set of border exceptions. “The health, safety and wellbeing of people in New Zealand remains the Government’s top priority. Tight border restrictions remain ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • First COVID-19 vaccine purchase agreement signed
    The Government has signed an agreement to purchase 1.5 million COVID-19 vaccines – enough for 750,000 people – from Pfizer and BioNTech, subject to the vaccine successfully completing all clinical trials and passing regulatory approvals in New Zealand, say Research, Science and Innovation Minister Megan Woods and Health Minister Chris Hipkins. ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • International statement – End-to-end encryption and public safety
    We, the undersigned, support strong encryption, which plays a crucial role in protecting personal data, privacy, intellectual property, trade secrets and cyber security.  It also serves a vital purpose in repressive states to protect journalists, human rights defenders and other vulnerable people, as stated in the 2017 resolution of the ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Ministry of Defence Biodefence Assessment released
    The Ministry of Defence has today released a Defence Assessment examining Defence’s role across the spectrum of biological hazards and threats facing New Zealand. Biodefence: Preparing for a New Era of Biological Hazards and Threats looks at how the NZDF supports other agencies’ biodefence activities, and considers the context of ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New Approaches to Economic Challenges: Confronting Planetary Emergencies: OECD 9 October 2020
    New Approaches to Economic Challenges: Confronting Planetary Emergencies: OECD 9 October 2020 Hon David Parker’s response following Thomas Piketty and Esther Duflo. Good morning, good afternoon, and good evening, wherever in the world you might be. I first acknowledge the excellent thought provoking speeches of Thomas Piketty and Esther ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Kaipara Moana restoration takes next step
    A Memorandum of Understanding has been signed today at Waihāua Marae between the Crown, local iwi and councils to protect, restore and enhance the mauri of Kaipara Moana in Northland. Environment Minister David Parker signed the document on behalf of the Crown along with representatives from Ngā Maunga Whakahī, Ngāti ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • New Zealand and Uruguay unite on reducing livestock production emissions
    Agriculture Minister Damien O’Connor and Uruguayan Minister of Livestock, Agriculture and Fisheries Carlos María Uriarte have welcomed the launch of a three-year project that will underpin sustainable livestock production in Uruguay, Argentina, and Costa Rica.  The project called ‘Innovation for pasture management’ is led by Uruguay’s National Institute of Agricultural ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • 3100 jobs created through marae upgrades
    Hundreds of marae throughout the country will be upgraded through investments from the Provincial Growth Fund’s refocused post COVID-19 funding to create jobs and put money into the pockets of local tradespeople and businesses, Regional Economic Development Minister Shane Jones and Māori Development Minister Nanaia Mahuta have announced. “A total ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Health volunteers recognised in annual awards
    Health Minister Chris Hipkins has announced 9 teams and 14 individuals are the recipients of this year’s Minister of Health Volunteer Awards.  “The health volunteer awards celebrate and recognise the thousands of dedicated health sector volunteers who give many hours of their time to help other New Zealanders,” Mr Hipkins ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Community COVID-19 Fund supports Pacific recovery
    The Minister for Pacific Peoples, Aupito William Sio says a total of 264 groups and individuals have successfully applied for the Pacific Aotearoa Community COVID-19 Recovery Fund, that will support Pacific communities drive their own COVID-19 recovery strategies, initiatives, and actions. “I am keen to see this Fund support Pacific ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Community benefits from Māori apprenticeships
    Up to 50 Māori apprentices in Wellington will receive paid training to build houses for their local communities, thanks to a $2.75 million investment from the Māori Trades and Training Fund, announced Employment Minister Willie Jackson today. “This funding will enable Ngāti Toa Rangatira Incorporated to provide its Ngā Kaimahi ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Training fund supports Māori jobseekers
    Rapidly growing sectors will benefit from a $990,000 Māori Trades and Training Fund investment which will see Wellington jobseekers supported into work, announced Employment Minister Willie Jackson today. “This funding will enable Sapphire Consultants Ltd. to help up to 45 Māori jobseekers into paid training initiatives over two years through ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Ruakura Inland Port development vital infrastructure for Waikato
    The Government is investing $40 million to develop an inland port at Ruakura which will become a freight super-hub and a future business, research and residential development for the Waikato, Urban Development and Transport Minister Phil Twyford, and Māori Development Minister Nanaia Mahuta announced today. The funding has been has ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Appointments made to Defence Expert Review Group
    Defence Minister Ron Mark announced today the establishment of an Expert Review Group to review a number of aspects of the New Zealand Defence Force’s (NZDF) structure, information management and record-keeping processes.  The Expert Review Group’s work arises out of the first recommendation from the Report of the Government’s Inquiry ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • No active community cases of COVID-19
    There are no active community cases of COVID-19 remaining in the country after the last people from the recent outbreak have recovered from the virus, Health Minister Chris Hipkins said today. “This is a big milestone. New Zealanders have once again through their collective actions squashed the virus. The systems ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Clean energy upgrade for more public buildings
    More public buildings will be supported by the Government to upgrade to run on clean energy, the Minister for Climate Change James Shaw announced today. Minister Shaw announced that Lincoln and Auckland universities will receive support through the Clean-Powered Public Service Fund to replace fossil fuel boilers. Southern, Taranaki, and ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Schools back donations scheme for the second year
    More schools have opted in to the donations scheme for 2021, compared to 2020 when the scheme was introduced. “The families of more than 447,000 students will be better off next year, with 94% of eligible schools and kura opting into the scheme,” Education Minister Chris Hipkins said. “This is ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Ruapehu cycle trails gets PGF boost
    The spectacular Mountains to Sea cycle trail in Ruapehu District will receive $4.6 million in funding from the Provincial Growth Fund for two additional trails, Regional Economic Development Minister Shane Jones announced today. “This is an exciting development for the local community, and one that will provide significant economic opportunities ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Update to air border order strengthens crew requirements
    Additional measures coming into effect on Monday will boost our defence against COVID-19 entering New Zealand through the air border, Health Minister Chris Hipkins said today. “As part of our precautionary approach and strategy of constant review, we’re tightening the requirements around international aircrew,” Chris Hipkins said. The COVID-19 Public ...
    BeehiveBy beehive.govt.nz
    3 weeks ago
  • A true picture of Māori business activity
    A better picture of the contribution Māori businesses make to the economy will be possible with changes to the way information is collected about companies and trading enterprises. Māori Development Minister Nanaia Mahuta and Small Business Minister Stuart Nash have announced a new option for Māori enterprises who are part ...
    BeehiveBy beehive.govt.nz
    3 weeks ago
  • PGF funding for Taranaki projects
    The South Taranaki museum, a New Plymouth distillery and a Pasifika building firm will benefit from a Government investment totalling more than $1 million, Regional Economic Development Minister Shane Jones says. The $1.05m in grants and loans from the Provincial Growth Fund (PGF) will help the recipients expand and create ...
    BeehiveBy beehive.govt.nz
    3 weeks ago
  • Fijian Language Week 2020 inspires courage and strength during COVID-19 pandemic
    The Minister for Pacific Peoples, Aupito William Sio says the theme for the 2020 Fijian Language Week reflects the strong belief by Fijians that their language and culture inspires courage and strength that is strongly needed in times of emergencies, or through a significant challenge like the global COVID-19 pandemic ...
    BeehiveBy beehive.govt.nz
    3 weeks ago
  • Trades training builds on iwi aspirations
    An investment of $2.025 million from the Māori Trades and Training Fund will support Māori to learn new skills while making a positive difference for their communities, announced Employment Minister Willie Jackson today. “K3 Development Limited Partnership will receive $2,025,000 for its Takitimu Tuanui apprenticeship programme, which will support the ...
    BeehiveBy beehive.govt.nz
    3 weeks ago