Yesterday morning’s revelation that data collected from the Pacific Islands is being handed over to the Americans is opening up many interesting legal issues. One that is of interest to me is what happens to data collected from New Zealand citizens while they are in the Pacific Islands. I wondered about this because I have spent time in Western Samoa and Rarotonga since 2009 and I used local telecommunications to keep up with work and politics in Aotearoa. The thought that this information has been sent to the Americans is somewhat scary.
The GCSB Act provides a clear distinction between New Zealanders and others and how they are to be treated. Key has said consistently that there are cast iron guarantees that New Zealanders are not subject to mass surveillance and he will resign if the GCSB is engaged in mass surveillance. I hope this guarantee applies if we are overseas.
The Act authorises the GCSB under section 8B “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“. A foreign person is “an individual who is neither a New Zealand citizen nor a permanent resident; and includes a person acting in his or her capacity as an agent or a representative of such an individual”. This definition does not appear to include New Zealanders temporarily or even permanently overseas. A foreign organisation includes mostly corporates or individuals representing corporates.
There is protection for New Zealanders. Under section 14(1) of the Act “[i]n performing the Bureau’s function in section 8B, the Director, any employee of the Bureau, and any person acting on behalf of the Bureau must not authorise or do anything for the purpose of intercepting the private communications of a person who is a New Zealand citizen or a permanent resident of New Zealand, unless (and to the extent that) the person comes within the definition of foreign person or foreign organisation in section 4.” The definition of foreign organisation is essentially to entities and body corporates and their officers.
Incidentally obtained information can be communicated to another entity including an overseas public authority but only if the director is preventing or detecting serious crime in New Zealand or any other country, preventing or avoiding the loss of human life on the high seas, preventing or responding to threats to human life in New Zealand or any other country or identifying, preventing, or responding to threats or potential threats to the security or defence of New Zealand or any other country. The bolded words may represent a rather large loophole.
Maybe what is happening is legal. Maybe handing over our private data collected while we are overseas to the NSA is necessary for the identification of potential threats to New Zealand’s defence and is not mass surveillance by the GCSB. But if this is the correct interpretation then there is very little restriction on what personal information can be handed over and it may not not matter if it is collected in New Zealand or overseas.
And as noted by the Greens this change is a recent one. Previously the GCSB was authorised “for the purpose of preventing or detecting serious crime in New Zealand or in any other country [to] communicate that information to employees of the New Zealand Police or to any other persons”. The changes last year to allow for the identification of threats or potential threats to New Zealand or any other country clearly extended who the information could be given to.
This morning there was this extraordinary interview on Morning Report with former head of the GCSB Bruce Ferguson. He essentially admitted that mass collection of data was occurring and was being handed to the Americans but thought it was fine because it was not illegal to do so.
But this misses the point. Key promised there was no mass surveillance of kiwis occurring. It is clear now there is. Saying it is perfectly legal is no answer to his original promise.
Reprinted with additions and alterations from Waitakerenews.