Tech Liberty NZ Defending civil liberties in the digital age

Speech to the Auckland public meeting against the GCSB Bill

Posted on July 26, 2013

Text of Thomas Beagle's speech to the Urgent Public Meeting to Oppose the GCSB Bill held in Auckland, 25th July, 2013. (Or watch video of all of the speeches.)

 

Introduction

Liberty

I’m from Tech Liberty. We’re a group dedicated to defending civil liberties in the digital age. I want to start by explaining what that means in the context of this bill.

I’m pretty sure you’re all familiar with civil liberties – the right to freedom of expression and speech, the right to follow a religion, or associate with other people, the right to a fair trial.

But it’s not just the individual rights that matter, what’s important about them to me is that I see these civil liberties as being a vital part of a working democracy. And I like democracy. I believe it’s a better way of organising ourselves.

This means that threats to our civil liberties are also threats to our democracy.

Tech

The other half of our name is Tech for technology, and that’s the source of the latest threat to our civil liberties.

Communications have gone digital – voice, texts, emails, video chat, blogs. Behind the scenes everything is processed and stored as digital data.

Now what does this mean? The key point is that computers are very very good at handling digital data. We can store huge amounts of data very cheaply, we can send it anywhere in the world, we have sophisticated tools to process it.

These advances in technology provide the foundation of the mass surveillance state. And indeed, once this new technology got cheap enough, it was kind of inevitable that people would attempt to use it to create the surveillance state.

The GCSB Bill and the issues around it are not unique to New Zealand. I’m sure everyone here has some idea of what’s being revealed overseas in the USA, the United Kingdom, Germany, France, Australia, and so on.

We wouldn’t want New Zealand to be left behind, would we?

Democracy

Well, in this case, in the case where “keeping up” means mass spying on our own people, I’d much rather be left behind.

And this is where we come back to my original point about valuing civil liberties because I value democracy. In a democracy we, the people, get to decide whether we want mass surveillance.

So in the aid of making that decision I’m going to spend the rest of my time talking about metadata, mass surveillance and the GCSB bill. In particular I want to talk about what we have to fear from mass surveillance, even if you personally don’t feel threated by it.

My hope is that I can persuade you and that you can persuade your friends and together we can all persuade our politicians, democratically, that we don’t want mass surveillance in New Zealand.

Metadata, mass surveillance and the GCSB Bill

Metadata

Let’s start with metadata 101 – it’s often described by the wonderfully self-referential phrase “data about data”.

In the case of an email, it’s who sent it and when and who to, and how big it is and whether it’s the first or the fifteenth email sent between those people. Everything except the actual text of the email.

For a phone call, it’s who called who, how long they spoke for, where they were when they made the call, what devices were they using to do it.

In each of those examples I’ve only listed a very small amount of the types of metadata that can be collected and stored. What about the language used, who else have those people recently talked to, was the communication encrypted, it just goes on and on.

And that’s one of the reasons why metadata is so useful – there’s so much of it and in many ways it encompasses more information than the original text. Just think about all the metadata I listed for an email and how much information is there, when the text of the email could be just a single word such as “yes”.

Think about what people could tell from looking at your metadata. They could work out who your friends are, what political party you belong to, which church you attend. But it goes further than that – metadata can also reveal who you’re having an affair with, that you go to Alcoholics Anonymous, or that you’re undergoing treatment for cancer. It would know, based on your cellphone, that you’re at this meeting tonight.

And, super-conveniently, metadata is already in the right format for computers to process it easily.
If you’re ever tried computer voice recognition or automatic translation services, you’ll know that they’re not very good at it. Computers find it hard to understand messy data like written text or the spoken voice.

Metadata is nice and regular. Dates. Names. Sizes. Yes/no flags. All very easy to collect, store and analyse using modern technology.

Mass surveillance

But while metadata is useful in a targeted investigation looking at a single person – just think of how the number and frequency of emails were used to force Peter Dunne to resign – it really becomes valuable when you’re collecting it for everyone.

All that raw data can be sucked into a computer, processed, tabulated, cross-referenced and turned into usable information. You’re not just making observations about one or two people, but you can now draw conclusions about anyone in the country. About everyone in the country.

And, of course, the information you collect builds on itself to enable better and more interesting observations to be mined from it. You can cross reference the activities of two or more people to get a better idea of what all of them are doing. You can look at long term trends and search for variations in behaviour.

This information is then available to anyone with access to it. The GCSB will have it. They’ll be able to share it with other agencies within New Zealand. And of course, we still don’t really know how much of that information they’ll be sharing with their intelligence partners overseas.

Metadata and the GCSB Bill

There’s no doubt that metadata is an important part of modern surveillance and spying and there is equally little doubt that the GCSB has been involved in its collection and analysis - but this bill doesn’t mention it.

But when you look at the bill, you can’t help but think that it looks as though it has been designed to allow it. In particular there is the potential for incredibly broad warrants and access authorisations in section 15A.

In 15A(1)(a) we see warrants that can be granted for “communications made or received by classes of persons”, this is hardly a targeted warrant aimed at a single person based on reasonable suspicion.
Even more worrying is the access authorisations in 15A(1)(b) that allow the bureau to ”access one or more specified information infrastructures”.

I admit that my eyes glazed over when I first read that, but then I looked at the definition of what an information infrastructure is. I won’t read it out to you as it’s rather tedious but the summary would read as “includes every form of electronic communication and the associated metadata”.

This means that 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 would be open ended, without limit and, as section 15A(5) makes clear, not to be limited by any other law, including the NZ Bill of Rights. The GCSB Act will reign supreme.

Now we’ve all heard that Peter Dunne has sold us out and will be voting for the bill after getting some minor changes made. However, even with these changes, the bill still doesn’t mention anything about metadata or mass surveillance. There are no new controls, no new limits, nothing that says that this problem might be fixed.

The United Future press release does say that some definition of metadata might be inserted in the future depending on the findings of a review but to me that’s basically worthless.

“I’ve got nothing to hide, why should I care?”

Now I hope that gives you all an understanding of what metadata is and how we think the GCSB intends to collect it and engage in mass surveillance.

But you might be sitting there and thinking “So what? Why should I care about this? I’ve got nothing to hide and it’s only the intelligence agencies seeing it so what’s the problem?”

It’s a common question and it’s one that I struggle to respond to in a soundbite friendly manner, but here I’ve chosen five answers for you.

1. Prove we need this law

Firstly, I’m going to start by explaining some of my own reflexive dislike of this idea.
I’m kind of old fashioned. I like the idea that democratic government exists to serve the people and that it should get out of the way as much as possible.

Our default position should be that any intrusion into our personal lives must be as minimal as possible – and even that must be justified as being necessary and reasonable in a democratic society.
In theory the Police operate in this way. They don’t watch us all the time waiting for us to break a law, rather they wait until something happens that brings us under suspicion. Then they can go and show a judge that they have reasonable grounds for suspicion and apply for a search warrant or a surveillance warrant. Only then can they invade our privacy and our lives.

Mass surveillance is different. Mass surveillance works on the theory that you need to watch everyone at all times because you can’t tell when you’ll need it. Mass surveillance believes that anyone can be a threat at any time. Ultimately, mass surveillance is what happens when a government becomes scared of its people.

In other words, we’re going from a society where you are presumed innocent and left to get on with your life to one where everyone is watched by “the authorities” – just in case.

I can’t reconcile this with the ideals I just mentioned of a society where the state governs just enough and no more. We don’t have the sort of threats that would justify this type of surveillance, this level of snooping into our lives.

So my first answer is “It’s not my job to show why we don’t need this, it’s your job to prove that we do.”

2. Mass surveillance is a threat to democracy

I think we can all agree that the sort of mass surveillance I’m talking about will give the government a lot of power to spy on people it sees as a threat.

But who are these threats? Who decides who is a threat and who isn’t? When we look at stories about surveillance of political movements in New Zealand, it seems that it’s always the more left-leaning movements that get infiltrated. Does anyone remember any cases where the police were caught spying on the National Front?

Now, this bill gives the GCSB a new purpose – “contributing to the economic wellbeing of New Zealand”. What does this mean for environmental and conservation groups that might want to stop the spread of intensive dairying in New Zealand? Or poverty and beneficiary groups that might want to reallocate money from industry subsidies to welfare? It would be possible to define them as threats to the economic wellbeing of New Zealand. Will the GCSB be focusing on them?

Surveillance and spying on political groups in a democracy because of their views is a real problem. The story about the Police spy I quoted sent shockwaves through leftist political groups in New Zealand, sowing dissent, suspicion and confusion. By spying on these groups, the Police weren’t just finding out what they were doing, they were undermining them and reducing their effectiveness.

As I see it, people in NZ are already frequently reluctant to put their hands up to be counted for a cause. How much more cautious will they be when they know that their involvement in a political group will immediately become known to the government? What if they are already feeling vulnerable to state power, because they work for a government department, or are on parole or a benefit? Maybe you’d be tough minded and exercise your democratic rights regardless but there’s enough people who would be intimidated by this.

But democracy relies on dissent, on people saying “hey, that’s not right”. It relies on people forming groups and trying to recruit members to their cause, it relies on these groups working together and having the chance to put their views to the people of New Zealand so that our democracy can continue to move forward.

Therefore my second answer to the question of why we should care is that we all benefit from living in a democracy, and that democracy relies on freedom of expression and freedom of association, both of which are eroded by mass surveillance.

3. Privacy is important

It’s always tempting to respond to the “I’ve got nothing to hide” people with the response “Well, you must be pretty boring then”, but sadly it’s not very helpful.

More seriously, when challenged, the people who say this never seem that keen on putting internet-connected cameras throughout their home and publishing their financial details and personal correspondence on the internet. Apparently even those with nothing to hide still have a sense of privacy.

Privacy appears to be a normal human need. We don’t tell everything to anyone, we protect our inner thoughts, the intimate details of our lives. Not because we’re ashamed, but because they’re… private.
And, of course, some of us do have things that we wish to hide. Things that aren’t illegal even if they may or may not be immoral. People have affairs. People tell polite lies. People struggle before coming out of the closet. People want to keep their political views secret from those they work with.
There should be a word for the discomfort you feel when someone knows something about you that you’d rather keep hidden. Just knowing that someone else knows, that they could tell, gives them power over you. But what if it’s the government that knows? Do you feel just that bit less reluctant to rock the boat?

Now it’s easy for someone like me who is white, male, middle class, sufficiently affluent and generally boring to talk about how I’ve got nothing to hide. But what about people who don’t feel as safe and secure as I do? Don’t they have rights too?

When you give up your privacy by supporting mass surveillance you’re also giving up the privacy of everyone else in society.

My third answer, therefore, is that privacy appears to be a true human need and mass surveillance tries to remove it.

4. Mass surveillance is a tool for oppression

Mass surveillance is partly about power. I’ve already talked about how personal information can be used to threaten or intimidate individuals but there’s more to it than that.

Mass surveillance also gives governments powerful new ways to react to events. Consider what has been happening in China, Turkey and Syria, where the government has been using these types of systems to hunt down dissidents.

My fourth answer is that we should be against mass surveillance because it gives the government a powerful tool that could be used to oppress us in the future.

5. No government is competent or incorruptible enough to have this power

My final answer is a very simple one. So far I’ve been assuming that mass surveillance will work roughly as planned – I’ve been arguing against the “best case”.

But really, does anyone here have faith that a government program can be executed with 100% efficiency and no errors? Does anyone believe that the bureaucrats who run these programs operate with 100% integrity and can’t be corrupted?

Of course no one believes that because it’s obviously not true. Governments are made up of humans and humans are both fallible and corruptible. Just recently in New Zealand we have had medical staff snooping on the records of famous people, Police using their information systems to help them sell illegal drugs, government ministers leaking records to smear opponents, personal information being leaked by government departments.

My fifth answer is that mass surveillance gives a powerful tool that can be used to ruin people’s lives to a group of bureaucrats who are only human, with human failings. I don’t think we can trust the government to be competent or incorruptible enough to have this power.

Clarity in legislation

I hope that at least one of these reasons resonates for you as they do for me. I hope you can join me in opposing mass surveillance and demanding that it be explicitly excluded by the legislation controlling the GCSB, SIS and any other surveillance agencies.

But even if you still can’t agree with me on this, and that you’d personally feel safer with the government watching your every move, I hope that you can agree with my last point which is that we need these bills to be a lot clearer about what they do and do not allow.

I assert that as citizens of a democratic society, we have the right to know the methods that government agencies use to watch us. Because without this knowledge we cannot assert our democratic rights to put appropriate limits on their use.

At the very minimum, we should expect clarity from the GCSB Bill. It should explicitly mention how metadata is to be treated, what access authorisations are to be used for, whether the GCSB is allowed to engage in mass surveillance. At the moment the bill is very quiet on these topics – and Peter Dunne’s promised future reviews are cold comfort indeed.

Conclusion

In conclusion, I’m prepared to accept that some forms of state surveillance have their place in a modern democratic society. But we also need to recognise that state surveillance is a significant intrusion into people’s lives.

Therefore it is important that its use is proportionate to the security problems that we face. That the powers available are the minimum required. That there’s suitable oversight and as much transparency as possible.

The GCSB Bill fails on every one of these. It’s a significant, unjustified and unreasonably hurried extension of state power over our lives.

I don’t believe we need mass surveillance to keep us safe.

We need to reject this bill and assert democratic control over our surveillance agencies.

Thank you.

About Thomas Beagle

Co-founder and spokesperson for Tech Liberty
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  1. Could one not challenge the GCSB bill in court in terms of the Bill of Rights? Namely:

    13. Freedom of thought, conscience, and religion
    Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

    21. Unreasonable search and seizure
    Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.


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