After months of public speculation about illegal spying on New Zealanders, GCSB Director Ian Fletcher issued an extraordinary statement on 21 May 2013. He said that the Inspector-General had “formed a view that there have been no breaches” and then, the spin, “although the law is unclear”.

This was extraordinary for at least two reasons- GCSB is even now unwilling to acknowledge wrongdoing on its part (let alone start the process of change) and a complete failure of oversight (with the GCSB Director rather than the Inspector-General making the statement).

The Government is currently pushing through changes to the GCSB Act under urgency. The GCSB, at its core, is the New Zealand arm of the Five Eyes, in particular the NSA. The very same NSA that while expressly meant to spy on non-US citizens is used by the US Government to also spy on Americans domestically.

In doing so, the NSA has become world-leading in secretly capturing, storing, and analysing the vast quantities of words and images hurtling through the world’s telecommunications networks. The NSA’s tools include secret orders to collect real-time call and Internet information, apparently with full authorisation of Congress.

Scurrying back into shadows

Right now the GCSB is like a cockroach, happily operating in hidden spaces, suddenly exposed to sunlight. The agency wants nothing more than to get back to its comfortable hidden spaces as quickly as possible. And it should, as it is a spy agency.

However, without any public or Parliamentary oversight, and given its unwillingness to even acknowledge that change is needed, it is critical that the agency’s activities are tightly laid out in legislation and effective supervision put in place before it is allowed to go back to operate in those murky shadows.

But there is more to it. In New Zealand, amongst top bureaucrats and politicians, there is great belief in Hillary Clinton’s “Never let a good crisis go to waste.” A crisis, such as the Christchurch earthquakes or illegal spying by the GCSB, is seen as a golden opportunity to make changes that would otherwise be impossible or unacceptable.

And so, in the name of making “clear the statutory framework governing the activities of the GCSB”, there is fundamental expansion of GCSB’s scope and continuing ineffective oversight of its activities. New Zealand is being turned into a Surveillance State. No doubt this is with the enthusiastic support/pushing of the NSA, and perhaps even in the nature of a quid pro quo for continuing data access both ways. The GCSB is setting out on a course that goes beyond even what the NSA does lawfully.

Complacency and cynicism

Join me in saying to the GCSB, “Thank you for the thankless task of keeping us safe. We know you can’t share your successes with us but cheers. We also know that you get caught up, with the very best of intentions, in your work. Ninety people and their families, that we know of, have suffered as a result.”

“You dismiss that glibly but enough is enough. We, the people, get to define the sealed box you work in, not you. While you are free to operate in that box, we need assurance that you are staying in the box.”

“Yes, you need to pull your weight with your Five Eyes buddies. But don’t make New Zealand into a Surveillance State where information is collected and stored ‘just in case’ it is needed in the future. Don’t spy on New Zealanders, directly or via the NSA, or give NSA data on New Zealanders.”

You can be complacent and say, “I’ve done nothing wrong so why should I care?” You can be cynical and say, “The Government is going to ram the law changes through in any case. At best all that’s left is deciding the lipstick colour but it’s still lipstick on a pig.”

All of that is true. But, here’s the thing. Do you really care about democracy? What kind of a society do you want for your kids and future generations? Do you want to depend upon future scandals and leaks to know of the Government’s illegal activities? How many more New Zealand citizens and residents need to suffer at the GCSB’s hands before you care? Do you really want to live in a Surveillance State?

Put your views on the public record

What can we do as individual citizens? Admittedly, not much. But we can at least understand what the Government is doing and, if you care enough, make your voice heard by putting in a submission on the law changes.

There is still time to put your views on the public record as an informed citizen, whatever those views may be. You don’t have to be a lawyer or policy analyst. It’s as easy as sending an email to the Select Committee before Thursday, 13th June. Details are on the Parliament website.

My submission

As for me, in my individual capacity, I’ve put in a submission (PDF) with my personal views. You’re welcome to take a look and pirate steal re-use it for your own submission if you wish.

In summary, my views are:

The words “not otherwise lawfully obtainable” in Sections 15A(1)(a) and 15A(1)(b) as well as the entirety of Section 15A(5) should be deleted.

Section 8C and related provisions authorising GCSB spying on New Zealanders should be deleted from the Bill.

A specific provision should be introduced in the Bill prohibiting the GCSB from providing data about New Zealanders and New Zealand information infrastructure, whether collected directly or incidentally, from being given to any and every foreign organisation.

The Intelligence and Security Committee Act 1996 be amended so as to provide the Committee with the powers to undertake the same functions that the Inspector-General of Intelligence and Security has under Section 11 of the Inspector-General of Intelligence and Security Act 1996.

A provision be included in the Bill that it is mandatory for the person issuing an urgent warrant or authorisation under Section 19A to inform the Minister as soon as the Minister is available after the issue of such warrant or authorisation.

The list of agencies that the GCSB is allowed to assist should be able to be expanded only by amending the Act rather than an Order in Council.

Include a provision in the Bill that requires the GCSB Director to certify to the Inspector-General of Intelligence and Security annually that all applicable requirements of the Protected Disclosures Act 2000 have been fully complied with and that all staff are adequately informed of internal procedures in relation to protected disclosures. Such information should be reported to the House of Representatives in accordance with Section 12(3).