Wednesday 26 June 2013

Legitimate Concerns

John Key, Smiling Leviathan

New Zealand is in the middle of its own public controversy over government snooping into the affairs of private citizens.  It would probably have been a storm-in-a-teacup affair were it not for the Snowden expose of US, British, Canadian, Australian and New Zealand world-wide electronic surveillance causing so much disquiet in the United States.

But New Zealanders can now conceive of the risks in a concrete manner.  It has moved from the potential to the actual.  With the NZ government trying to amend the  the Government Communication and Security Bureau ("GCSB") spy agency law to plug some loopholes right at this moment, the spotlight has been switched on.  Will the GCSB end up doing what the US spy agencies have been doing--which is collecting digital data on its own citizens containing their private messages--with no probable cause whatsoever?

At the outset, let us be clear.  On this matter we simply do not trust our Prime Minister, John Key.
  His perspective is far too naive and superficial.  His "trust us, we know what we are doing" demeanour, coupled with his inability to enunciate principled safeguards and checks and balances to a horrible overreach of state powers offer little comfort to citizens.  We are right to be deeply suspicious of the proposed legislation because we believe that on this matter Key is way out of his competence zone and the Bill as currently drafted has been written by the security agencies themselves.

Key has approached this with the same superficial, light-hearted pragmatism that has governed so much of his Prime Ministerial tenure.  He is a non-ideological kind of guy.  He is a common-sense politician.  Whilst on a whole bunch of issues this may stand him in good stead, when it comes to fundamental issues like the power and authority of the state over its citizens he is way out of his depth.

He showed this on the matter of the anti-smacking legislation.  He reduced so many families to uncertainty, doubt, indecision and fear by supporting ill-crafted legislation that made smacking a child for the purposes of training and discipling a crime, and at the same time declared that the police would exercise discretion in the application of their powers.  Well, the NZ police have been pretty restrained (so far), but not so the other government agencies, such as Child Youth and Family which, emboldened by the legislation,  have ripped far too many decent families apart on the smallest of pretexts.  Key never saw this coming, and he probably does not care.  It's not a biggie, after all. 

And now the same Prime Minister is telling us we have nothing to worry about.  He simply is not trustworthy on this matter.

The way the proposed legislation is structured, the police, the Security Intelligence Service and other investigative agencies--including information requests from the United States, Canada, Australia and the UK--would need to go through a warranting process, proving probable cause before the GCSB could be commissioned to spy upon particular New Zealand citizens.  In other words, the GCSB would be simply an "order taker".  But--and here is the big but--in order to undertake such tasks the GCSB would need to create the data infrastructure and data storage capability in order to carry out such commissions on behalf of other agencies when they arise.   

In the United States the snooping agencies have hoovered up all the data, analyzed it, then, "wink and nod", sidled up to the relevant investigative agency such as the FBI and "suggested" that they might like to get a warrant to investigate Joe Blow, after the fact.  This makes a mockery of the warranting check-and-balance.

Moreover, there is something creepy and overtly dangerous about a government actually capturing and storing every electronic communication of every citizen, "just in case".  Imagine thirty years ago the outcry were the government of the day to have had (and be exercising) the capability to copy every letter you sent in the mail and store them in a vast secret library just in case they wish to investigate you some time in the future.  That is precisely what appears to be happening now with respect to private phone and internet communications--at least in the United States--and if there, no doubt here, since New Zealand is obligated to participate in the US spying activities with respect to its our own citizens.  

When the NZ Law Society is objecting strongly to the proposed laws it is time for every citizen to sit up and take notice.  This from the NZ Herald:
The Law Society has made a stinging attack on proposed law changes governing the GCSB spy agency, saying they effectively transform it from a foreign intelligence agency to a domestic one without any justification being given. . . . The Law Society submission, written by Rodney Harrison, QC, says: "It is difficult to identify the pressing and substantial concerns that the bill purports to remedy or address." . . . .
He says the bill effectively transforms the GCSB from a foreign intelligence-gathering agency into an additional domestic spy agency.  "It seems that the underlying objective of the legislation is to give the GCSB powers it lacked previously: the power to conduct surveillance on New Zealand citizens and residents. No explanation or justification for the conferral of this power is given."
We need law with clear constraints as to what the New Zealand Government is forbidden to do, not "positive" law about  what is may do if it chooses.  Until we see such overt, bright line constraints put upon the Government in this matter, we will not be at all supportive.  And if the Government is unwilling or unable to put those legislative constraints in place, then our worst suspicions will be warranted.

Nor will we be supportive of a hidden dungeon of data intercepted from citizens going about their lawful activities.  At the very least the dungeon would need to be subject to the Freedom of Information Act, so that each citizen could query and not only obtain what intercepted data the government were holding on taht citizen but also a statement of specific probable cause as to why the government is holding this information about that individual.

A government which is either unwilling or unable to bind itself to such constraints is to be rightly mistrusted and feared.

Postscript:  Australia is starting to back-pedal.  We hope this creates even greater pressure on New Zealand.

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