Tech Liberty NZ Defending civil liberties in the digital age

GCSB Bill – Oral Submission

Posted on July 3, 2013

Text of our oral submission to the Intelligence and Security Committee concerning the GCSB Bill.

Introduction

I represent Tech Liberty, we’re a group dedicated to defending civil liberties in the digital age.

We see many problems with this bill and the thinking that lies behind it, problems that we described in our written submission. Today I want to concentrate on just a few of those that are particularly central to our group’s reason for existing.

Civil Liberties

Firstly, as a civil liberties group we are concerned that this bill significantly expands the powers of the GCSB. There has been a lot of spin one way or another on this issue, but we see:

  1. The GCSB’s new purpose of protecting NZ’s cybersecurity being used as an excuse to give them broad oversight and control of the country’s telecommunications networks.
  2. New permission to use their equipment and people to assist the SIS, Police and, oddly, the Defence Force.
  3. The ability to spy on New Zealanders for a number of reasons including both of those purposes just mentioned.
  4. Incredibly wide-ranging warrants and access authorisations that can be granted over classes of people and systems with little meaningful oversight.

We believe that these powers combine with what is left unsaid in the bill to prove a real threat to the security and well-being of New Zealanders. In particular we fear that this bill will allow significant mass surveillance.

Information is power

It’s commonly said that ‘information is power’, and government surveillance leads to an accumulation of information that changes the power balance in our society. Knowing that everything is being watched tends to make dissent more timid, limiting our freedom of expression and the effective working of our democracy.

People still believe in privacy and at times will do things that are lawful and reasonable but that they may not want their friends, peers or workmates to know about. It’s not illegal to have an affair or be in the closet, but this information can be used to wreck lives - or compel obedience. Can we trust a government agency to collect this sort of information and not abuse it?

This is not because we believe that the people who work for and oversee the GCSB are bad people, it’s because we believe that they, like the rest of us, are all too human.

Threats

What sort of threats must our country be facing to warrant these measures?

The Cold War is over. The last terrorist attack in New Zealand was nearly 30 years ago. We have no significant enemies. The internet provides some interesting challenges in terms of scammers and hackers but even there the impact is small scale.

The arguments made for this bill tend to be either non-existent or censored, hiding behind the idea that we can’t be trusted to know the threats that face our country, an assertion we find to be self-serving and weak.

Bringing this back to civil liberties and the NZ Bill of Rights - can the powers being granted by this Bill and the consequent impact on our rights and freedoms be demonstrably justified as necessary in a free and democratic society?

We believe that concentrating this sort of power in the hands of a government agency is a far greater threat to our personal security than any paranoid dreams of overseas terrorists and Nigerian internet scammers.

Metadata & Mass Surveillance

I now want to talk about two of the issues that are fundamentally important to Tech Liberty. The first is metadata and the second, connected but not the same, is mass surveillance.

The availability of cheap information storage, fast networks, and powerful data processing tools has materially changed how surveillance is done in the modern era. There is now so much data that can be captured and analysed, that what was once harmless is now, when done on a massive scale, a threat to our liberty.

Metadata

We’ve been hearing a lot about metadata recently in the revelations about PRISM in the USA and the spying done by the GCHQ in the United Kingdom.

As you probably all know by now, metadata is the information that describes other data. In a phone call, the conversation is regarded as the data while the numbers called, when it was, how long they talked for, where they were, etc is regarded as the metadata. The same principle applies to email, texts, web-surfing, and so on.

Some people seem to take the view that metadata isn’t important or doesn’t deserve protection. We saw in the Kitteridge report that the GCSB has viewed metadata as something they can access, free of the constraints that applies when they intercept communications.

But this view is wrong.

We recently saw the power of metadata in NZ’s parliament when the number, frequency and timing of emails were used to make assumptions about behaviour that led to a resignation, even though the content of those emails wasn’t revealed.

Metadata can be used to work out who you associate with, make assumptions about your health, your hobbies, your politics, where you go and what you do when you’re there. It can be used to find out all sorts of things about you - possibly even reveal things you don’t know about yourself.

Metadata is in some ways more useful to spy agencies than the communications themselves. Metadata is consistent, neatly formatted, and far easier for a computer to analyse than messy hard to interpret human conversation.

Metadata is an important part of modern surveillance and spying and there is no doubt that the GCSB has been involved in its collection and analysis - but this Bill doesn’t mention it.

It doesn’t clarify the rules around when and who the GCSB can collect metadata about. There’s no mention of where they can and can’t get it from, or how long they can keep it, or … anything else. There’s no indication that Kitteridge’s recommendation that metadata be treated the same as communications has been accepted.

Mass surveillance

The second thing enabled by our new and cheaper technology is mass surveillance - the ability to collect communications and metadata about everyone. Why bother targeting when you can collect everything easily, store it cheaply and then mine that stored data for interesting correlations?

The justification is that by collecting all of this data you can do a better job of spotting the “bad guys” because they behave differently. I’m not sure that this holds up in New Zealand where we basically don’t have any terrorists for our systems to detect patterns from. Are we going to single out the French for special attention?

We see mass surveillance as a betrayal of the idea that in our society you should be free from government spying unless there is a demonstrably good reason that you should be subject to it, and that this spying is subject to sufficient oversight.

And, once again, mass surveillance builds up a database of information about innocent people that is open to misuse and abuse.

Unfortunately the GCSB bill really says very little about mass data collection, especially if it’s “only” metadata. There are very few or no limits on what can be collected, how it can be used, and who the derived information can be shared with.

Broad warrants and access authorisations

One answer might be that the Bill says very little because it doesn’t authorise it and therefore the GCSB can’t do it, but we don’t think that stands up to scrutiny.

When we look at the bill, we can’t but help notice the potential for incredibly broad warrants and access authorisations in section 15A.

In (1)(a) we see warrants that can be granted for “communications made or received by classes of persons” with very little limitation on how these “classes of persons” can be defined.

Even more worrying is the access authorisations in (1)(b) that allow the bureau to ”access one or more specified information infrastructure”.

In case you don’t know what an “information infrastructure” is, it includes “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 other words, it includes every form of electronic communication and the associated metadata.

A single access authorisation could be granted to give access deep into our telecommunications networks to enable the GCSB to collect whatever data they see fit. This access authorisation could be open ended, without limit and, as 15A(5) makes clear, not to be limited by any other law.

You may look at this GCSB Bill and see some mild tweaking of the current law, we look at it and see it as the moment that New Zealand changes from being a society that investigates “bad guys” subject to judicial oversight, to being a surveillance state where the government is always watching and recording everyone just in case they're thinking about doing anything wrong.

No mass surveillance

We believe that there are simple solutions to these problems and that they should be incorporated into this bill.

  1. The first is that metadata must be treated the same as communications and should have the same limitations.
  2. Secondly, that the GCSB should be explicitly forbidden from creating any databases of information about New Zealanders who are not actively under investigation.
  3. Thirdly, that the warrants and access authorisations must be much more tightly defined and controlled to ensure that they are appropriately targeted.

Clarity

Now there’s a chance you’re sitting there thinking that we’ve got this all wrong, that the Bill doesn’t provide for these things that we fear. If this is the case, the bill must be very badly drafted because a large number of people and groups who have looked at it have come to very similar conclusions. In this case the bill needs to be rewritten to make these limits clear.

However, if it is the intention of this committee and the government to allow the GCSB to engage in these activities, which we certainly hope it isn’t, they should be properly codified and defined in the law with appropriate limits and controls, rather than being left to be read between the lines.

Oversight

Finally we wish to make a brief submission on oversight.

Civil liberties recognises that our freedoms and rights may need to be intruded on in certain circumstances. At the same time we believe that these intrusions must be done as openly as possible and with suitable oversight. We also believe we have a right to know what form those intrusions take.

The GCSB has highly intrusive powers that are exercised in secret. This secrecy means that these powers are open to abuse in a way that doesn’t apply to most other government agencies and we’ve already seen that the GCSB struggles to obey the law meant to limit its behaviour.

Currently operational oversight consists of the Minister (typically the Prime Minister who we can expect to be generally very busy) and their direct appointee, the Inspector General of Intelligence.

The new regime suggested in this bill is that operational oversight will consist of the Minister and the Inspector General of Intelligence. In other words, except for slight tweaking around the powers and appointment of the Inspector General, nothing has changed.

We do not find this reiteration of a failed model to be an acceptable level of openness and oversight. We need an expanded and significantly better system of operational oversight that doesn’t rely on one politician and their direct appointees, ideally one with some involvement of the judiciary and possibly civil society. This bill does not provide it.

Conclusion

In conclusion, while we have made some suggestions for how this bill can be improved, we think that this will not go far enough.

We see the powers being given to the GCSB as being more of a threat to the security of New Zealanders than the perceived problems that these powers are meant to fix.

Some may argue that we are being naive and that we would change our minds if we could see what horrors our intelligence services protect us from. We would argue that in New Zealand we’re lucky that we don’t have to be scared all the time, and we don’t want to be railroaded by politicians naive enough to believe the self-serving scare stories told to them by the bureaucrats in the intelligence agencies.

We ask the committee to reject this bill, we believe that New Zealand needs a full enquiry into what we want our intelligence agencies to do and the powers that we need to give them.

About Thomas Beagle

Co-founder and spokesperson for Tech Liberty
Comments (7) Trackbacks (0)
  1. We need a mobilized physical public movement.. Bits of paper and computer written literacy can be manipulated as we have already seen with the asset sales.. We need to go Egypt on there ass.

  2. Thank you Tech Liberty

  3. As you comment in your submission when referring to who or what organisations are included in the “authorising” TechLiberty says: “and oddly Defence Forces” of New Zealand and therein lies an interesting point.
    Under the Defence Act legal provision is made to permit the formation of Defence Forces and specifies where and how they may operate for and in defence of New Zealand under direction of the civilian government. These Defence Forces (call it NZDF) are specifically provided for but are limited in where and how they may operate.
    For example they are NOT authorised (automatically) to operate within New Zealand and against the populace of this country EXCEPT to ‘render assistance to the elected government of the day’ when requested. An understandable example is how the NZDF provided support to civil authorities in the aftermath of the Christchurch earthquakes – they have since completed this task and ceased to function in that way.
    Accordingly there is no justification for “Defence Forces” to be included in the what I’ll call ‘the GCSB amending Bill’ and to be able per se to SPY of New Zealand citizens and residents. If the NZDF ever feels it has a good case for specific data to to collected by surveillance they should have to make a case to a Judge foe an authorising Warrant and should then have the information gathered by the NZ Police – such warrants should be detailed and specific and NOT be an open-ended licence to ‘fish’ for anything they like.

  4. We heard how Kim Dotcom mention before the New Zealand Parliamentary Select Committee Taxpayer Funded Public Servants in America, took innocent words that were twisted from their Proper Context, and made them the matter of an Indictment.

    Another example is that of a teenager who was be sarcastic, and we can read of his plight because of a sarcastic comment he made at http://www.activistpost.com/2013/07/teenager-jailed-for-facebook-comment.html .

    It would not surprise me to discover that that teenager was made an example to other Americans, that the Government can hack anyone’s Computer and change a few words and set them up, and Edward Snowden is fighting for America to make all Americans Free.

    We know that Kim Dotcom has said that the Prime Minister of New Zealand John Key knew of Kim Dotcom before the raid by the Police on his home, and John Key has denied any Knowledge of Kim Dotcom before that raid on his home.

    There is a good Article on why the Prime Minister John Key had to either know, or was incompetent, and the Article is Titled: Key’s proud claim to being the village idiot at http://www.scoop.co.nz/stories/HL1307/S00051/gordon-campbellkeys-proud-claim-to-being-the-village-idiot.htm .

    I do not blame Kim Dotcom for wanting to keep his Evidence until his extradition hearing, which is scheduled in April 2014, unless it is postponed after the Next Parliamentary Election in New Zealand which must place no later than December 2014.

    Kim Dotcom has to have time to prepare his Defence against why he should not be extradited to participate in a Show Trial Charges in that Dictatorship called America, and unlike the Disingenuous Apology of John Key to All New Zealanders; Kim Dotcom is Genuinely fighting for New Zealand to keep All New Zealanders Free.

  5. Well done Tech Liberty.

  6. The Overwhelming Majority of Voters in New Zealand want Independent Democratic Checks on their Spy Agency, because it has Acted Corruptly and Illegally by spying on Many New Zealand Citizens, making it a Snooping Agency.

    There are Voters who see the Potential and Obvious Conflict of Interest for the Prime Minister who is a Person with a long History of International Market Trading and Investment Banking, and having Unrestricted Access to a Global Spying Agency which Spies for Commercial Reasons, and Allows the Inordinately Greedy to increase their Wealth.

    I need to Clarify that statement, by saying that I think that the Parliamentarians in New Zealand work hard, and that they certainly do earn their Money, and I do not think that they should be paid less than what they are receiving, but while they are hardworking, the Question remains, what could some of them be working hard on, and if not in this Parliament, then future Parliaments?

    Edward Snowden accurately says that having the Technology is one thing, but that it is the Veil of Secrecy and the Refusal to allow any Transparency to run these Systems that is the main Problem, and in a Democracy it should be up to the Public to decide what is acceptable, and this could be an Issue at the Upcoming Parliamentary Election in New Zealand.

    New Zealanders are being Ordered to Accept Less Freedoms, than Previous Generations who fought for these, and Many New Zealanders believe that their Duty is to hand over these same Freedoms and Democratic Values for Future Generations.

    They do not want the Precious Sacrifice of the New Zealand Men and Women who died in Wars to Establish Democracy, Justice, and Freedom to be forgotten, but they want it to have Protection in Law.

    This is an Extremely Crucial Issue for New Zealanders to Debate, and not a Circus, or a Scene from a Movie.

    Kim Dotcom has raised several Vital Questions about Security and Proper Governance in New Zealand.

    It will be Impossible now for Kim Dotcom to get a Fair Trial in America, because he has upset America by what he said during the Parliamentary Select Committee Spy Bill Hearings, and Pressure will be Exerted by America during the extradition hearing which is currently scheduled for April 2014 unless is delayed for some Reason.

    Concerned Citizens and Residents for a Constitutional Democracy in New Zealand, think that the Task of the Parliamentary Select Committee on the Proposed Spy Bill will begin Deliberating on how to best to Debate the Spy Bill to ensure that the Democratic Safeguards are followed.

    If Kim Dotcom is extradited to Dictatorial America, then it will be Impossible for him to gain Justice, because it would now be a Farce of a Show Trial, given all the Injustice that has occurred, and that was Only Motivated by Malicious and Predjudice.

    The Law Society of New Zealand is against this Snooping Bill, and they do not completely trust People that are against Transparency in their own Dealings.

    We should not Discount the Unprincipled Methods of falsely accusing Kim Dotcom as a narcissistic foreigner trying to interfere with how New Zealand’s Laws are shaped to suit his own personal commercial interests, while Narcissist Privileged Citizens shape New Zealand’s Laws to suit the Select Personal Commercial Interests of Only Themselves.

    Furthermore, the Unprincipled keep changing the goalposts to suit their Concealed and Corrupt Agendas, and they do Bribe or Intimate People to give False Testimonies, thus ensuring an Unacceptable Perversion of the Course of Justice.

    Any Honest Justice System does not allow a Person to face a Show Trial, because it would be a Travesty of Justice, and One Fundamental Principle of Justice is that it is better for 10 Guilty People to avoid Justice, rather than that even 1 Innocent Person should be the Victim of an Injustice.

    The Only Reason Kim Dotcom is involved, is because New Zealand Law, which was made without any influence by Kim was Violated against him and other Innocent People.

    Kim Dotcom and Many Citizens of New Zealand are Victims of the Callous Criminality that John Key has shown he wants to sweep under the carpet with suggestions of Retrospective Legislation, rather than pursuing Accountability and Honesty; and this is Proven because Compensation has not be paid, and it is owed, and it should be Paid to the Victims, which is a Necessary Sign of Parliamentary Accountability.

    Kim Dotcom has done a great service to the New Zealand Community, by promoting Honesty in Business Dealings, because Honesty is the Best Policy, and while some may speak overly critically of his alleged past; as a convenient excuse, we know that Honesty is the Best Policy.

    The International Business Community are Clever Enough to know that if they have being Spied On, then they will Set Up Secret Deceptions on which to be Spied On, and this will cost those Countries Economies who think that Spying can make them Money, because it will Cost them Money, because they will be planning Business Activity on Lies, and this could be a Significant Factor why we have a Poor Global Economy.

    They will know that they should stay away from Such Countries, because those Countries Businesses are not Implementing Proper Business Practice, because they actually believe Secret Deceptions of those being Spied On, and this will come at a Great Cost to those Spying Countries’ Economies, even though a few will make a lot of Money at the Expense of those who Voted for them.

    It is true that Kim Dotcom is only a Permanent Resident in New Zealand, and this can sometimes be Advantageous, because they have not been in any Position to be Corrupted by the Possible Disadvantages of Citizenship, and I hope that New Zealanders consider at the arguments Only on their Merits.

    Although Kim has said that he presently has no intentions of seeking a Parliamentary Position of Service to the Community; Many New Zealanders want an equally Trustworthy Person of Integrity like Kim to be the Honourable Minister Responsible for the Government Communications Security Bureau in the Next Government.,

  7. There are some sentences that I wished I had written in my other comment with more information for better Clarification.

    There are Many New Zealanders who see the Potential and Obvious Conflict of Interest for the current Prime Minister who is a Person with a long History of International Market Trading and Investment Banking, being in a Position of Unrestricted Access to a Global Spying Agencies which Spies for Commercial Reasons.

    This Enables the Insatiably Greedy to increase their Illegally Obtained Dirty Money by Improper Means; while also Evading Paying Taxes on that Dirty Money that is Laundered in Offshore Tax Havens, and Offshore Financial Institutions.

    If Kim Dotcom is extradited to Dictatorial America, then it will be Impossible for him to have a fair trial, because it would now be a Farce of a Show Trial after what he said at the Parliamentary Select Committee on Spying and all of the Injustice that has occurred, and that was Only Motivated by Malicious and Prejudice.

    We have already seen that Kim Dotcom and other New Zealanders were Spied Upon Illegally, and as a Consequence of this, they can and perhaps should Sue the Government.

    However, the Government should Willingly Pay Compensation, in order to keep their Election Promise of Honest and Accountable Government.

    Otherwise there really is one Law for Us, and another Law for Them.

    This is because, One of the Basic Principles of Justice, is that Justice Must not only be done, but Justice Must be seen to have been done.

    The Unprincipled keep changing the goalposts to suit their Secret and Corrupt Agendas, and they do Bribe or Intimate People to give False Testimonies and False Evidence, thus ensuring an Unacceptable Perversion of the Course of Justice.

    The Unprincipled do Destroy their Incriminating Evidence, and they do Manufacture False Evidence, and they Employ the Best Think Tanks to plan their Conspiratorial Schemes, and this is why the odds are greatly stacked against those who are against Corruption.

    There could be People who think that the only reason that someone would sue the Government is for Money, but they are in Fact protecting their own Citizens, which is one of the most Basic Functions of Government, and this is why the Government of New Zealand should pay Just Compensation.

    I had a read of what Wikipedia says on Dotcom, and I know that advocates for a Surveillance State or SS, and for a Police State should not use smear tactics on some of matters that are in the past, and therefore are Irrelevant to the Public Debate on Mass Spying.

    Wikipedia says: Dotcom claims he was not guilty, and he said the judge and prosecutor offered him a suspended sentence if he pleaded guilty, and Dotcom said: “I took the deal and moved on with my life instead of spending the next few years in court rooms defending my innocence.”

    I think that this is Completely Consistent, with my own knowledge of how Legal Systems work, because there is a Great Reluctance by those involved in the Legal System to Concede that at times, they do mistakes, because it will be viewed as Incompetence.

    Even though the Judge knows that a Court Trial will reveal that a Person is Innocent; the People in that Legal System are either All Friends or Good Acquaintances, and so the System does at times Manipulate a Situation, in order to look after each other.

    People who were not there cannot say for certain that they know what happened; but New Zealanders know that since coming to New Zealand, Kim is Champion for Democracy, Justice, and Freedom.

    What can be known for certain is Kim Dotcom was wrongfully imprisoned in New Zealand, and this was Confirmed by the High Court, and the Court of Appeals, which are the highest Courts in New Zealand.

    The current Narcissistic Government of New Zealand in their Pettiness; some would say in their Twisted Nastiness tried to Obstruct Justice, which the High Court said that Dotcom was entitled to, and they did this by wasting the Taxpayers Hard Earned Money on appealing the High Court’s Verdict that the current Government Acted in an Illegal and Unprincipled way, because the High Court found that New Zealand Citizens and permanent residents are Entitled to Justice.

    We saw how the Court of Appeals Upheld that New Zealanders are Entitled to Justice, and so the current Government Schemed to Cover Up their Deviousness and Criminality.

    If the current Government pays Mister Dotcom Just Compensation, then the current Government has Done the Right Thing, but what is the Real Motive behind this?

    Could it be that the current Government will do this to look like they are Following the Law, while Scheming to Pervert the Court of Justice at Kim’s extradition hearings scheduled for April 2014, because they consider him to be a Liability to their chances of winning the Next Election if Kim has not been extradited to America to face a Show Trial?

    We know that Mister Dotcom is on the Public Record as saying that even though he is innocent, he will make a Deal for the sake of Convenience, and I have already provided the Wikipedia Quote for this.

    I think that Dotcom should take Legal Advice if the Government makes a Secret Offer to him by means of his Legal Representative, that the current Government will not extradite him in return for Dotcom not Angering the current Government by pursuing Justice that the High Court and the Court of Appeals have affirmed he is Legal Entitled to.

    I will say that he needs to be certain that he can trust the current Government, given their Record of Past and Present Hostility toward New Zealander’s Legal Right to Justice and Privacy.

    There is a real risk that the current Government will Once Again Cunningly and Dishonestly shift the goalposts to Cover Up their Crimes.

    There are Many New Zealanders who are hoping that someone stands up for what is Right, and for Democracy, Justice, Privacy, and Freedom at http://www.nbr.co.nz/article/gcsb-bill-deeply-deeply-flawed-russell-norman-ck-142522 .

    If Kim accepts any Secret Deal from the current Government, then Many New Zealanders will be disappointed to Learn that New Zealand is on its way to becoming a Dictatorship using Intimation and Pressure, and I for one will not be overly critical of Kim as a person, given the Unfair Disadvantage of the Situation, because we know that the odds are greatly stacked against Ordinary Citizens.

    Even so, given the fact that Mister Dotcom wants to be granted New Zealand Citizenship, then Many New Zealanders would want him to provide evidence that he shares their Values, and this can be best proven to his fellow New Zealanders by pursuing his Legal Right to Justice through the Courts in a Dignified Manner.

    We will see if the current Government will either postpone the extradition hearings until after the Next Election, or if they will move the Election Date forward, so as to have the Election before the extradition hearings, and as a way to prevent Mister Dotcom and New Zealand Citizens from being awarded Compensation.

    The current Government of New Zealand could do this hoping to win the Next Election, so that they can be back to their Standard Procedure of Perverting the Course of Justice, with regards to the extradition hearings, and Other Matters, because if the current Government Brazenly Defies and Mocks the current Laws and Proper Human Norms, then Voters are asking what will they be like if they are Reelected?

    The World knows New Zealanders as Honest and Good Natured People, and Many New Zealanders want their Government to reflect this same Attitude in their Dealings with Others.


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