The Spywatchers

Checks and Balances in Secret Services

Mass surveillance of New Zealand citizens has been a hot issue in this country for the past eighteen months or so.  Our local spy networks, along with international spy partners, have been sharply criticised for engaging in (literally) unwarranted spying.

The NZ spy agencies have opened up more than ever before and have more diligent and exacting review mechanisms overseeing them.  The independence and integrity of the reviewers seems beyond question.  The first independent review has now been published, entitled "Intelligence and Security in a Free Society: Report of the First Independent Review of Intelligence and Security in New Zealand".

The Foreword states:

Our central conclusion is that there should be a single, integrated and comprehensive Act of Parliament that lays out in plain English how the agencies are constituted; what their
purposes are; how all their intelligence and security activities are authorised; and how they are overseen so as to protect those freedoms and liberties that are part of what we are as a nation.

The Act should state clearly that its fundamental purpose is the protection of New Zealand as a free, open and democratic society. That then becomes the guiding principle by which the activities of the agencies must be undertaken and judged.

There should always be debate about how best to ensure that purpose is achieved.
Freedom and liberty cannot be preserved either in a vacuum of apathy or in an atmosphere of tolerance of the abuse of power. But nor can they be preserved by wilfully or casually ignoring the existence of those who reject or threaten the values of freedom and liberty.  Our report proposes a legislative framework designed to encompass both those enduring truths. 

So far, so good.   The Report goes on to conclude that no mass surveillance of New Zealanders is taking place.  The assessment on this issue is as follows:

In New Zealand, there has been considerable debate in the media about whether the GCSB conducts “mass surveillance” of New Zealanders. Having spent some months learning about the Agencies’ operations in detail, we have concluded that this is not the case, for reasons we discuss below. . . .[Ibid., p.22] 

And the reasons are:

The reality of modern communications is that it is often not possible to identify and copy a specific communication of interest in isolation. If a particular satellite might carry a relevant communication, the GCSB cannot search for that communication before interception occurs. First it needs to intercept a set of communications, most of which will be of no relevance and will be discarded without ever being examined by an analyst. This is the haystack in which the needle must be found.

Even this “haystack” represents only a tiny proportion of global communications. The GCSB conservatively estimates that there are over 1 billion communications events every day on the commercial satellites that are visible from Waihopai station. These represent approximately 25 percent of commercial satellites that match the Earth’s rotation (although signals cannot always be secured even from those satellites that are visible). We were told the proportion of those 1 billion communications that are actually intercepted equates to roughly one half of a bucket of water out of an Olympic-sized swimming pool.

To find the “needle” (or the communications that are of intelligence value), the GCSB filters intercepted material for relevance using search terms. Only those communications that meet the selection criteria are ever seen by an analyst. The GCSB has internal processes in place to  Given these controls on what information can actually be examined by analysts, in our view the GCSB’s ability to intercept sets of communications does not amount to mass surveillance. That term suggests a kind of active monitoring of the general population that does not occur. It would neither be lawful nor even possible given the GCSB’s resourcing constraints.

Capacity acts as a check on all signals intelligence agencies, although it is particularly
pronounced for the GCSB given its comparatively small size. It is simply not possible to
monitor communications (or other data) indiscriminately. Professor Michael Clarke, the (now retired) Director-General of the UK’s Royal United Services Institute who convened the 2015 Independent Surveillance Review, referred to this when giving evidence before the Joint Committee on the Draft Investigatory Powers Bill.

"The other great safeguard is the sheer physical capacity. One will be astonished at how little [intelligence agencies] can do, because it takes so much human energy to go down one track.  The idea that the state somehow has a huge control centre where it is watching what we do is a  complete fantasy. The state and GCHQ [the UK’s signal’s intelligence agency] have astonishingly  good abilities, but it is as if they can shine a rather narrow beam into many areas of cyberspace  and absorb what is revealed in that little, narrow beam. If they shine it there, they cannot shine  it elsewhere. The human limitation on how many cases they can look at once is probably the  biggest safeguard."

We also observe that there are currently restrictions on the GCSB’s ability to intercept the private communications of New Zealand citizens and permanent residents.  These
restrictions apply to New Zealanders anywhere in the world, not just those in New Zealand. It was clear to us from our discussions with GCSB staff and from the GCSB’s own internal policy documents that these restrictions are interpreted and applied conservatively.   Far from carrying out “mass surveillance” of New Zealanders, the GCSB is unable to intercept New Zealanders’ communications even where it is for their own safety.  For example, the GCSB would be unable to analyse the communications of a New Zealander taken hostage in a foreign country unless it was assisting the NZSIS, NZDF or Police under their legislation.  [Ibid., p.43f.]

These are revelations which will bring some comfort to many--unless of course one happens to be amongst those who believe that no amount of evidence to the contrary will persuade one that mass surveillance is not taking place.

Of course the New Zealand government's approach to these things depends very much on the quality of the people appointed to be independent public watchdogs.  The positions of the "watchers" and "reviewers" and their regular are now statutory (required by law).  It oversight regime will turn very much upon the quality of the watchers appointed by the government of the day.

Our position as Christians is that evil is pervasive and real.  Threats to our nation (both internal and external) exist.  Conspiracies--hatching and executing plans to do evil--are real.  It is the duty of the state to protect us from such conspiracies, which makes intelligence agencies an essential aspect of the state.  The explosion of electronic data and communication has made this task much more difficult.   But evil also resides in governments.  Therefore there must be checks and balances upon the intelligence gathering of the state.  A separation of powers, so that independent authorities can "trust, but verify" and report to other branches of government and to the public is a necessary protection against part of the state "going rogue".

We are pleased thus far with what we have read in this first public report.