The GCSB Bill: We at least have to try

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On one level, Campbell Live‘s national GCSB Bill tour, which began on Monday night, is classic 7pm “heartland” current affairs. There could hardly be anything more cravenly Kiwi than crossing live from the Mangonui fish ’n’ chip shop...

On one level, Campbell Live‘s national GCSB Bill tour, which began on Monday night, is classic 7pm “heartland” current affairs. There could hardly be anything more cravenly Kiwi than crossing live from the Mangonui fish ’n’ chip shop, at least without an All Black being involved.

One another level, it’s a triumph. One set up by the government’s insistence that not only does New Zealand want or need any further discussion of this striking piece of legislation, but that New Zealanders themselves aren’t even interested.

All John Campbell needed to do was vox-pop a few Northland locals to put that one to bed. Most respondents had qualms about the bill, some professed to be relaxed about it, others to not know enough. Not one that we saw had no interest.

The responses cast the Prime Minister’s bizarre press-conference performance shown later in the programme in an unflattering light. To put it mildly. Rebecca Wright did not even get to the end of her question before being informed by John Key that “my advice is switch to snapper and more people’ll watch Campbell Live [but] that’s up to you.”

Wright tried again: “How do you think that Kiwis feel about the bill?

“I think they’re much more interested in snapper quota.”

“But I’m not talking about snapper quota, I’m talking about the GCSB Bill. How do you think that they feel about the GCSB Bill?”

“Yeah, I think they’re much more interested in snapper quota.”

“Why?”

“Because they like catching fish.”

Key’s tendency towards petulance is brought out the more he is challenged on any subject, and he seems to have had enough of being challenged on this bill. If his performance as chair of the security committee that heard submissions on the bill was niggling and unprofessional, his responses to Wright were those of a sulky adolescent. His predecessor in leadership certanly had her faults – a considerable capacity for hubris among them – but she never left you in any doubt you were speaking to a grown-up.

Key’s handlers have sensed that this was becoming enough to erode even his formidable stock of political capital, so they’ve clearly been trying to hide him – or at least confine him to chats with amenable radio hosts. And even there, he committed a nasty act of prime ministerial bullying by trying to smear Rodney Harrison, the QC who presented the Law Society’s submission.

I don’t think most of those surveyed by Campbell Live had a sophisticated understanding of the bill, even if they were uneasy with it. And that’s not their fault. It’s complicated and subject to wildly conflicting claims.

But in the first part of the programme, Wright also surveyed MPs at the National party conference in Nelson. Hekia Parata and Paula Bennett held close to the “no one cares” line and Nathan Guy professed that he wasn’t an “appropriate” person to be putting such a question to (the fact that he would be voting for the bill apparently hadn’t occured to him). Jonathan Coleman threw in the kitchen sink with “serious issues like terrorism, weapons of mass destruction research, drug smuggling, people smuggling”. Judith Collins went for “areas such as child pornography, online child abuse and online, those sorts of matters have been in the past worked on between the GCSB and police and frankly I think that’s something we should have happening.”

“Can you imagine this scenario?” declared Tau Henare. “We didn’t do anything with the GCSB legislation. Something goes wrong, they all blame John Key.”

And then, remarkably, “I think there are people, and you hear the chatter, and that’s the word people use, and I think that is when people like the GCSB will be interested in you. When you have something against your own country.”

Which, I think we can all agree, sets the bar for surveillance a hell of a long way below anything like criminal activity.

In truth, most of the government MPs appeared to know little about the bill they were defending (and those who might, like Nikki Kaye, had the good grace to look sheepish about what they were saying).

The most commonly-advanced claim in support of the bill – that an expert agency should legitimately be able to help agencies such as the police with technical surveillance – isn’t really the issue. You can make an argument in support of that. But you cannot make it in isolation.

Thomas Beagle’s new boiling-down of the issues – which I would urge you read read and share, because it’s clear and concise – leans to the view anyway that surveillance “in assistance” will be circumscribed by the originating agency’s oversight, and changes to the bill have offered some strength to that restraint.

But the GCSB will, for the first time, also be able to spy on New Zealanders for its own purposes. An interception warrant would be required to spy on on a New Zealander, a particular place, or a “class” of people within New Zealand. (That last category is as exceptionally broad as it sounds.) But the warrant can be issued by either the Prime Minister or the Commissioner of Security Warrants, who is appointed by the Prime Minister. There is no judicial or truly independent oversight for the exercise of these very serious powers. The warrants system is political. No FISA Court for us.

But wait, there’s more. There is an “access authorisation”. To quote Thomas:

An access authorisation (15A(1)(b)) allows the GCSB to access a particular or class of “information infrastructure” which is further defined as “electromagnetic emissions, communications systems and networks, information technology systems and networks, and any communications carried on, contained in, or relating to those emissions, systems, or networks”.

In theory, it seems that an “information infrastructure” could be all the traffic of a major telco or mobile provider, or even the New Zealand internet itself.

Then there’s 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.

The new section doesn’t solve the problem. While the GCSB can’t deliberately spy on New Zealanders without a warrant, it is free to use intelligence it has gained “incidentally”.

Alarmingly, the bill is still silent on the issue of metadata – for example, the records of phone calls or emails made and received and by whom, rather than the calls or emails themseves. It appears the GCSB can simply do as it wishes there. It may be useful to remember that the recent snooping on the communications of Andrea Vance and Peter Dunne involved just this sort of metadata.

The bill also also silent on with whom intelligence on New Zealanders can be shared – and this is crucially important, gven the GCSB’s genesis as part of a multinational intelligence alliance. Thomas believes the bill may allow the GCSB to gather intelligence for the sole purpose it is formally allowed – “cybersecurity” – share it with a foreign agency and and then be given it back to use as general intelligence. Nothing in the bill explicitly prevents such actions.

None of that means that the GCSB will set about doing you or me ill. But we demand oversight of powerful state agencies because if we do not, the way is open for those agencies to to begin to act in their own interest, or in that of the current political executive.

We can speculate on exactly why this bill has appeared at this particular time in this particular form – and why it has been accelerated through in a process nowhere near what we could reasonably expect for an act which confers such sweeping powers.

But the key thing is, it is an offence to our rights and liberties. It lays the ground for a move to mass surveillance under a future government.

I have no particular hope that any government MP will display the polical courage and honesty to vote against this bill, or of the centre-right’s internet megaphones showing some decency (but good on Act on Campus for making a stand). It will very probably pass by a single vote (which in itself is an outrage, given its nature). But I think the rest of us have to at least be seen to try and oppose its passage.

I’ll be attending the meeting at the Auckland Town Hall on Monday (I hope they keep those speeches short) and donating to the PledgeMe campaign for a prominent protest billboard. I’ll watch Campbell Live with interest. It’s up to you what you do, but I’d ask you not to let yourself be told you don’t care.

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