Making a submission on the Government Communications Security Bureau and Related Legislation Amendment Bill

General Instructions

1. Submissions are due Friday, 21 June 2013 (note this has been extended)
2. Submissions must be emailed to GCSB.Bill@parliament.govt.nz. You may compose your submission in Word, or equivalent, and attach it or send it as part of your email.
3. You can download a copy of the Bill from the Parliamentary Business 'Bills' page. (The Bill is 47 pages long.)
   

Format of your submission
There is no specific way that your submission, your actual submissions can be as general or specific as you wish but you must include your name and contact details. If you want to make an oral submission to the select committee you must state that specifically in your email. The submission should state whether you support or reject the bill.

Some ideas about why the Bill should be stopped:

There are several reasons why the Bill should be stopped, but some key concerns that you could point out include:

1. The Bill is being passed through parliament under urgency – but there is no need for urgency.
   A. Like all Bills, this Bill should not be rushed through parliament.
   It was introduced as a result of findings in the Kitteridge Report that the GCSB had probably illegally spied on up to 88 people. However, a subsequent Neazor report (if we are to believe it) found that there had “been no breeches … “ so why is the urgency continued.
   Further, recent and on-going media coverage about the level of spying undertaken by the NSA show more than ever that there should be no expansion of the powers of the GCSB. At the least, the Bill should definitely no longer be introduced under urgency but rather run the normal length of time.
   B. The Crown Law's report on compliance of the Bill with section 7 of the Bill of Rights. The Crown Law's advice was that "the Bill raises questions in respect of the rights to freedom of expression, non-discrimination and against unreasonable search and seizure affirmed by ss 14, 19(1) and 21 of the Bill of Rights Act," but then went onto say that despite that, "the Bill appears consistent with that Act." This is further evidence that the Bill should not be passed in urgency.
   C. The Regulatory Impact Statement. The RIS states "The GCSB Act contains intrusive state powers. Consequently any review of the GCSB Act will involve the consideration of human rights and privacy matters. Respect for human rights, and individual privacy and traditions of free speech in New Zealand were guiding principles in undertaking the review and developing recommendations." These 'guiding principles' can not be given much thought when the Bill is being rushed through in urgency.
2. The primary purpose of the proposed changes to the GCSB Act 2003 is to change the function of the GCSB. The GCSB was never intended to be a domestic spy agency but this Bill changes the function of the GCSB from that of the collection and analysis of 'foreign intelligence' to a role of national security. The SIS already exists to 'protect the economic well-being' and its functions and powers were expanded in an amendment to the SIS Act in 2011.
3. Removing the word “foreign” from the Act. By removing the word foreign from the Act, the Bill allows precisely what the previous version expressly ruled out: that the GCSB can be used to spy on NZ citizens and residents.
4. Expanding the power of the GCSB by 'co-operation with other entities to facilitate their functions '. Changes to Section 8 of the Bill enable the GCSB to spy on behalf of the New Zealand Police, Defence Force and the SIS, including other departments that may be specified by Order in Council. This section of the Bill also allows the GCSB to perform functions for these other agencies even if the activities were not allowed under the GCSB Act.
5. The mass collection and retention of data to be shared with other agencies. Sections 15 and 25 allow for the GCSB to collect and store electronic communications for an unlimited time. This data can then be shared with the NZ police, the Defence Force, the SIS and 'any other person that the Director thinks fit to receive the information'.
6. Oversight of the GCSB. The oversight regime is not adequate. At the least the GCSB should be required to produce an annual report documenting its surveillance, including how many requests were made by the various NZ agencies and the numbers of people affected.
7. Abolish the GCSB. Above and beyond all the points raised above, the GCSB should be abolished. It primarily serves the interests of the USA and helps expand the network of surveillance maintained by Echelon and the UKUSA Agreement.

Neazor changing his mind

The Inspector-General of Intelligence and Security Paul Neazor has arguably definitely changed his mind in the last eight months about the illegal spying of the GCSB.

In September 2012, he was asked by the Prime Minister to investigate the spying on Kim Dotcom. In his report, he came to the following conclusions:

The GCSB is controlled by its governing Act in what it may do. That Act makes it clear that the Bureau is intended to collect foreign intelligence only, but that includes the function of assisting the Police by gathering foreign intelligence for the purpose of preventing or detecting serious crime.

"Foreign intelligence only" and no mention of any ambiguity in the law, even when the GCSB is assisting the police. As far as consequences for the GCSB are concerned, he recommended: 

There will need to be alertness that … the wording of the provisions of the GCSB Act are controlling.

The result was a public apology by John Key: “Of course I apologise to Mr Dotcom, and I apologise to New Zealanders.” Key said he was “appalled” that the GCSB had “failed at the most basic of hurdles.”

All that has changed. Spying on Dotcom was failing a basic hurdle, but spying on 88 others was “arguably legal”. In September, the GCSB needed to learn that its Act was “controlling” – now the same Act is ambiguous and needs reform.

The arguably ambiguous GCSB Act

The Inspector-General of Security and Intelligence, Paul Neazor, yesterday finished his inquiry into the GCSB’s illegal spying on NZ residents and citizens. The report has not been made public, instead the GCSB issued a press release.

Whether this press release includes all findings of Neazor’s report, or whether the GCSB has filtered it to show only those findings that are favourable, is not known. It is also unclear whether the report will ever be made public. But according to the GCSB, Neazor “is of the view that there were arguably no breaches and the law is unclear.”

That seems difficult to comprehend – if the law is unclear, how can one come to the conclusion that  it wasn’t breached?

If the GCSB is correct in its summary of the report, this wouldn’t be the first time that Neazor has found that a NZ spy agency has done nothing wrong. In 2005, Neazor found that allegations published by Scoop and the Sunday Star Times that the SIS had been spying on the Maori party were without base, and he came to the conclusion that the papers had been duped.

Guide to applying to the GCSB for your file

Anyone who is interested in finding our whether they are one of the 88 people who have been spied on illegally by the GCSB since 2003 can write to them and request their information under the Privacy Act. Below is a basic letter template that can be copied:

Date

Government Communications Security Bureau
PO Box 12209
Thorndon
Wellington 6144

To whom it may concern:

REQUEST FOR INFORMATION UNDER THE PRIVACY ACT

Under the terms of the Privacy Act, I am requesting all information held by the GCSB about me.


Yours sincerely,

Name
Date of birth
Address (PO Box is OK)

How the GCSB's illegal spying got exposed

Currently, there are new laws before parliament that will allow the GCSB to do what it was previously not allowed to do - to spy on NZers. Below is some background information.  

Operation Debut
When on January 20, 2012 the police operation “Debut” descended on Kim Dotcom’s modest cottage in Coatesville, his communications had been intercepted for some time. The subsequent court hearings revealed that it wasn’t the police who had done the spying, but another, unnamed agency.

In September, it became clear that the GCSB, NZ’s foreign spy agency, had been involved in the spying on Dotcom. His lawyers argued that this had been illegal, because the GCSB Act of 2003 clearly states that the GCSB is not allowed to spy on NZ citizens and residents. Dotcom was a NZ resident at the time, but the GCSB claims that his residence status at the time wasn’t clear.
As a result, John Key – as the Minister in charge – asked the Inspector-General of Security and Intelligence (IGSI), Paul Neazor, to compile a report into the matter. Neazor came to the conclusion that the police and the GCSB had been confused about Dotcom’s residence status and had therefore unwillingly acted illegally. Neazor did not think the GCSB Act was ambiguous, in fact he recommended that the GCSB should be alerted to the fact that “the wording of the provisions of the GCSB Act are controlling”. As a result, Key apologised “to Mr Dotcom, and … to New Zealanders.”

The Kitteridge Report
Also in September, the government commissioned Rebecca Kitteridge to review the GCSB’s handling of the matter. Her report, published in March 2013, is damning. It reveals that since 2003, the GCSB had spied illegally on 88 other NZ residents or citizens, in most cases at the request of the SIS.

The report found that the GCSB has no policies and procedures in place to check if what it does complies with the law. Its part-time legal advisor for 15 years, Hugh Wolfensohn, hardly ever asked for advice from the Crown Law Office. No one ever analysed if the GCSB was affected by other legislation or if the use of new surveillance technology was within the law. There was essentially no record keeping. One of the most worrying aspects is that the GCSB seems to have signed international treaties without the government knowing.

Submissions on the GCSB Bill

The government’s reaction to the damning report about the GCSB by Rebecca Kitteridge was to introduce the “GCSB and Related Legislation Amendment Bill”. It passed its first reading under urgency on May 8, 2013.

Its main change to the GCSB Act consist of removing the word “foreign” from the Act in order to allow precisely what the previous version expressly ruled out: that the GCSB can be used to spy on NZ citizens and residents. One of the roles of the GCSB is to assist the SIS and the Police, the argument being that not doing so would mean that expensive surveillance equipment would have to be duplicated across the agencies and that would be inefficient. Therefore the GCSB should be able to spy on NZers when assisting other agencies. Human rights are being violated in the name of efficiency – an extremely dangerous thing to do.

Other changes in the Bill are that the Inspector-General of Security and Intelligence will get a deputy (so far he has been all by himself) and can now conduct random checks with the GCSB. This falls considerably short of the recommendation of the Kitterridge report, which asked for a structure similar to that in Australia, which has 12 staff.

Below is the official blurb about the GCSB Bill. Submissions can be made to the Intelligence and Security Committee at GCSB.Bill@parliament.govt.nz by Thursday, 13 June 2013.

Government Communications Security Bureau and Related Legislation Amendment Bill

The bill is an omnibus bill that proposes amendments to the Government Communications Security Bureau Act 2003, the Inspector-General of Intelligence and Security Act 1996, and the Intelligence and Security Committee Act 1996. The purposes of the bill are to make clear the statutory framework governing the activities of the GCSB and to enhance the external mechanisms for the oversight of the New Zealand's intelligence agencies. The Intelligence and Security Committee is inviting submissions on the bill. The closing date for submissions is Thursday, 13 June 2013. A copy of the bill and the regulatory impact statement can be accessed from the downloads panel on this page. Submissions can be emailed to GCSB.Bill@parliament.govt.nz. If you wish to appear before the committee, state this clearly and provide a name, daytime phone number, and email address. Submissions will generally be made public. The committee is required to report to the House on this bill by 26 July 2013.

The Bill can be downloaded here.

GCSB & the lives of others: Public meeting

Public meeting on the surveillance by the GCSB

You are warmly invited to a public meeting on Monday, May 27 at 6pm at the Mezzanine Meeting room of the Wellington Central Library to discuss the Government Communications Security Bureau (GCSB), the illegal surveillance it conducted, the law change being made to legalise its unlawful activities and the role of the GCSB in the US global surveillance network.

Speakers:
Nicky Hager - author of the book Secret Power which exposed the secrecy of the GCSB
Keith Locke - who has been spied on by the state since he was 10 years old
Michael Bott - member of the NZ Council for Civil Liberties

New Bill in Britain

The British government has introduced a draft bill to introduce total digital surveillance. Details about every email, phone call or text message in the U.K. (sic) would be logged — and they say that those  worried about the program are all either criminals or conspiracy theorists.

If (or when) this Bill becomes law, providers would collect IP addresses, the details of customers' electronic hardware, and subscriber information including names, addresses, and payment information.

Physical communications would also be monitored: Address details written on envelopes would be copied and parcel tracking information would be logged as well.

The state would be able to keep all the data up to a year, or longer if it was the subject of legal proceedings.

The monitoring will be done without the need for the police or agencies to apply for a warrant. No one will know the extent of the monitoring, its effects, nor the conclusions that the authorities may draw from the data.

Search and Surveillance Bill Passed

The Search and Surveillance Bill was passed on 22nd March. Now it just needs rubber stamping before it becomes law.

When this Bill becomes law, the range of opportunities for legal surveillance available to police and various State agencies increases dramatically. That also means, the 'illegal' activities that those same forces do, shift laterally and also widen.

When this is law, there will be a lot more warrant-less searches and surveillance and warrant-less use of spies, or HIDs - Human Intervention Devices. Road blocks like those seen on 15th October in Ruatoki could become the norm, and increasing use of detention on mere belief that a 'crime' may be committed.

The right to silence and the right not to self-incriminate are also attacked under this law.

March 22nd was not a good day in history. Let's hope that somehow this Bill is never rubber-stamped.

S&S Bill May Be Decided Tuesday 20th March

The Search and Surveillance Bill most probably comes out of Committee on Tuesday 20th March. It will then be voted on and could be law by April 18th.

It will be a sad day.