Unrighteous Espionage

Doubts and Suspicions

We posted recently on the unavoidable necessity of espionage.  We also argued that those who spy and those who receive information from the espionage apparatus should not be trusted.  They need at all times to be checked and balanced by other powers.  "Trust but examine and verify" is the apt slogan.

The present spying legislation has been amended since first introduced to the House.  It is a better piece of legislation than it once was.  There are more checks and balances.  The issue of spying on behalf of other governments with whom we have espionage agreements is another matter.  As far as we can tell the Bill is silent or unclear when it comes to NZ espionage agencies spying on NZ citizens at the behest of the United States, Canada, Australia, and the United Kingdom (our "Five Eyes" partners).

To cut to the chase: if the US wanted to spy on a New Zealand citizen (say, just for argument's sake, Kim Dotcom) would the NZ espionage agencies need a warrant under New Zealand law, and would those activities on behalf of a foreign power, be subject to the same checks and balances and disclosures that a New Zealand agency would require (for example, the NZ Police wanting to surveil a New Zealand citizen)?  We hope so.  We would argue strenuously that this ought to be the case.  We fear the worst, however.
 


The New Zealand government has conceded that metadata (names, addresses, dates, times of communication, etc) constitutes information (a good step).  The New Zealand espionage agencies will not be gathering and storing metadata on New Zealand citizens.  But will it be gathering and passing on metadata to be stored by the United States spying agencies?  Again, the matter is not clear.  We suspect the worst.  If we are to trust them in this matter, there needs be scrutiny and far more verification.

Chris Barton, writing in the NZ Herald, raises the relevant issues:

Can New Zealand say no to the United States of America? This is the difficult question at the heart of two pivotal and far reaching decisions about to be made.  Our parliament is deliberating whether it's OK for the NSA to spy on all New Zealanders all of the time. And our Supreme Court is deliberating whether a United States request for extradition trumps the fair process of New Zealand law.

There is an argument which runs, Who cares?  Who cares if the United States or the UK knows things about us that our own government does not?  After all, we are not answerable to foreign governments.  Yes and no.   We don't need care until we do--and by then, it's too late.  Let's conceive of actions, communications, or speech which violates US domestic law.  Let's say, for example, one of us sent an e-mail to someone in the US or the UK or the Cayman Islands that averred that President Obama was a waste of space and the planet needed to be rid of bearing his useless weight.  In the United States we may be liable to investigation and indictment.  But what if the US sought to extradite us out of New Zealand because we had broken US law, as evidenced by our e-mail, which had been intercepted by NZ espionage agencies, and the contents delivered over to the United States as a matter of course.

Peter Dunne, MP has secured some helpful checks and balances to the current draft of the bill which will control the activities of the Government Communications Security Bureau ("GCSB").  But upon this matter he has been hopelessly at sea.  He appears to have opted for the "too hard" basket.

On the one hand Dunne says there is truth to the claim that "there is still no mechanism in the new laws to ensure our private communications are not fed into any kind of global surveillance programme, like the NSA's Prism". On the other he says that's beyond the scope of what GCSB does within New Zealand and is a debate that should be dealt with separately.

This is the irreconcilable aspect of the GCSB Bill that is so chilling - that it makes legal the indiscriminate spying on of New Zealanders, but remains silent on the mechanism under a Kafkaesque don't-tell regime to protect national security. The illegal surveillance of New Zealand resident Kim Dotcom and others tells us, however, that the agency doing the spying is the GCSB and that metadata has indeed been harvested.

The threat of "global terror" has pushed governments on to a perpetual war footing--of emergency powers becoming the norm.  This is the clear and present danger, not global terrorism.   This is the crucial broader issue that must be addressed.  It is the debate we need to have in New Zealand

The question New Zealand citizens are being denied the chance to debate is whether we want to be a part of this routine mass surveillance dictated by Washington; whether such a wholesale surrender of privacy is necessary, or even desirable, to combat terrorism; and whether we can opt out of Five Eyes and still remain a friend of the United States. . . . Do we agree to allow the rights of people in New Zealand - such as the right to privacy or justice - to be diluted or ignored in favour of international obligations? It's a question those MPs about to pass the GCSB bill should ask, keeping in mind, on a matter as important as this, they are elected to represent the people not their party.

Because the government is not prepared to be candid about the "meta-data" of our international spying obligations, but shrouds it under a cloak of secrecy, unwilling to divulge what is done and what obligations the government considers us to be under, suspicion grows.  They are hiding something.  They don't want us to know.   They are not to be trusted.  They are never to be trusted.  Power corrupts.  We need more checks, more balances, more disclosure--much more.