Thomas Beagle at Tech Liberty has done a great job at presenting the technicalities of the Key-Dunne GCSB spying bill:
Does the new GCSB Bill give them the power to spy on New Zealanders?
Spying on behalfFirstly, everyone agrees that section 8C of the Bill will allow the GCSB to spy on New Zealanders on behalf of the SIS, Police or NZ Defence Force. This is the “giving assistance” part and it appears to be limited to only doing things that the original agency would have the legal authority to do. …
GCSB spying on New Zealanders
The GCSB also has the power do its own spying on New Zealanders as part of its new cybersecurity purpose (defined in section 8A). “to do everything that is necessary or desirable to protect the security and integrity of the communications and information infrastructures”.
The main interception powers are granted by section 15A and this makes it very clear that both interception warrants and access authorisations can be granted for the GCSB to spy on New Zealanders under purpose 8A (cybersecurity).
Interception warrants vs access authorisations
… an interception warranted is targeted at a person or place (although the targeting can be very, very broad), whereas an access authorisation allows general access to all the information on a particular computer system, network or phone system, or a specified type of all of those systems.
The only difference between those granted for spying on foreigners and those for spying on New Zealanders, is that the ones targeting New Zealanders have to be signed off by the Commissioner of Security Warrants as well as the Prime Minister. The Commissioner is appointed by the Prime Minister.
Doesn’t section 14 stop the GCSB spying on New Zealanders?
The new section 14 only stops the GCSB from spying on New Zealanders for purpose 8B (intelligence gathering and analysis). It does not apply to any surveillance done in relation to cybersecurity (purpose 8A) or done on behalf of other agencies (purpose 8C).
The new section 15C does stop the GCSB deliberately intercepting privileged communications (e.g. to your lawyer). However, see note below about incidentally gained intelligence.
Warrantless spying?
Section 16 of the GCSB Act also allows certain forms of spying without a warrant or access authorisation. However, the bill adds section 16(1A) which says that this cannot be done for the purpose of intercepting the communications of New Zealanders. (See the notes below about metadata and incidentally gained intelligence.)
Putting it all together
So what does all this mean?
Most importantly it clearly shows that the GCSB can spy on New Zealanders for its own purposes without doing it on behalf of another agency.
We see that this has been deliberately set up to allow mass surveillance either now or in the future. For example, the GCSB could apply for an access authorisation for access to “New Zealand’s mobile networks” and, after being signed off by the Prime Minister and the Commissioner for Security Warrants, they could then use that access authorisation to collect all phone calls, texts and data sent over the mobile networks.
This collected information could then be analysed and the resulting intelligence given to the Minister and any person, whether in New Zealand or overseas, authorised by the Minister (section 8A(c)).
In theory this activity would have to be done as part of their purpose to “protect the security and integrity of the communications and information infrastructures” but we see that this could be interpreted rather widely.
The post goes on to discuss other issues – Metadata, Incidentally gained intelligence, Access authorisation for the GCSB, Sharing data overseas, Collecting data from overseas, What about data that New Zealanders store overseas? – well worth your time to go and read the whole thing. Russell Brown also raises some useful issues in this post, referencing Beagle’s.
Tech Liberty have been on this case for a while now, and it was interesting to read this exchange of letters. Beagle writes to Key with 11 questions on the spying bill, polite reasonable questions covering a range of topics that should be of interest to all New Zealanders. The reply is a useless form letter, addressing none of them.
Finally, the current poster for the meeting coming up on Monday night – good to see that David Shearer has joined the speaking line up.
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