Gordon Campbell on the final round for the GCSB Bill

August 20th, 2013

Having tried and failed to sell the GCSB Bill by invoking the bogeyman of terrorism – “PM Justifies Spy Bill : Kiwis trained by al Qaeda” – the government has resorted to its ace card whenever it gets in real trouble, and invoked the PM’s personal charm and credibility. Trust John. Trust John to strike the right and proper balance between privacy and the needs of national security. Trust John to rein in the spooks if and when they seek to abuse their powers. Why, if the GCSB wanted to read private emails, and draw all kinds of dire conclusions about anyone, then Trust John to be so onto it that this would simply never happen. And would he ever exceed his powers and use the GCSB against his political enemies or against say, someone like Kim Dotcom? Trust John. That would never happen. Promise.



A few centuries ago of course, we stopped relying on these kind of personal assurances and proclamations by our Wise and Noble King. In this case, the eagle-eyed bastion of first and last resort would be the same person who allegedly didn’t know about Kim Dotcom, or the planning for the unprecedented FBI/Police raid on a mansion in his own electorate or the illegality of the GCSB surveillance of Dotcom and of all the other New Zealanders unlawfully spied on and referred to in the Kitteridge report. We’re supposed to rely on a guy who professes not to know what’s happening in his own electorate, and in his own portfolio area of responsibility? Hmmm.

In the past could we even Trust John when it came down to the extent of his past links to Ian Fletcher, the guy shoulder-tapped to lead the GCSB? Not so much. On his track record, what you can trust John Key to do is to maintain a plausible deniability – I wasn’t told, I can’t remember, its someone else’s fault, we asked for them, got them but didn’t read them – such that any future abuse of the powers bestowed by the GCSB Bill cannot be sheeted home to him. Count on privacy rights being treated as entirely expendable in the service of that greater good. (He’s only the Minister of the security services, for goodness sake. How was he supposed to know about their operational activities?)

As Greens Co-Leader Russel Norman has pointed out, if there really is no problem here – say, with the collection, use, sharing and storage of meta-data, with GCSB surveillance of private emails etc etc – then why aren’t these protections being written into the Bill? Why is Key – at this late stage – offering himself as a walking talking Supplementary Order Paper to cover over all the cracks in this badly conceived, badly drafted and unjustified piece of legislation? No matter how he spins it, Key has not offered a credible shred of evidence as to when and how the old division of labour between the SIS (focus: domestic security) and the GCSB (focus: external security) has broken down, to a degree where the GCSB must now be turned into an agency of external and domestic surveillance.

After all, the old GCSB legislation was passed in 2003, soon after the 9/11 attacks. Is Key seriously suggesting we face a bigger security threat now, than we did then? What we are seeing looks less like genuine threats facing this country – and a lot more like the security service mandarins seeking to justify their existence, expand their powers, forge stronger kinks with their brother agencies overseas and get more expensive toys to play with, at our expense. Trust John to keep a rein on mission creep by the security services? Not likely.

And here’s how this very same process has played out recently in the US.

A National Security Agency audit obtained by the Washington Post a few days ago – and dated May 2012 – counted 2,776 incidents in the preceding 12 months “of unauthorized collection, storage, access to or distribution of legally protected communications.” Each one of those 2,776 incidents may contain up to several thousand privacy violations of Americans, meaning that millions of Americans’ privacy rights may have been violated by the NSA with searches unauthorized by any judicial body. The Washington Post reported of one of the 2,776 incidents that it “included a violation of a court order and unauthorized use of data about more than 3,000 Americans and green-card holders.”

Want to be re-assured then, by Peter Dunne’s claim to have gained more transparency about the workings of the GCSB via say, some new annual reporting requirements? Think again. These are self –reporting processes, with no verification by any independent monitor with real teeth. In the US, as this report indicates, the annual reporting process is a sham.

It is a sham because the one incident referred to by the Post above exceeded by a factor of 10 times the quantity of all the phone records the NSA claimed to have legitimately searched throughout 2012 in order to find information about alleged terrorists. How so? Because the NSA tally didn’t include searches carried out by other agencies reporting to the NSA, or carried out by contractors such as Edward Snowden. That explains how NSA Director General Keith B. Alexander could claim in his June 18 testimony before the House Select Intelligence Committee about the number of requests for NSA surveillance under the US Patriot Act that “for 2012, less than 300 selectors were looked at, and they had an impact in helping us prevent potential terrorist attacks.” Right. Yet as mentioned, in just one case among the 2,776 established in the audit obtained by the Post, over 3000 violations of personal privacy were involved. One can imagine how the GCSB will be able to spin its annual reports on its operations. Dunne’s “gains” on the transparency front are quite meaningless.

The US government too, has a response to public concerns. Trust Barack. Trust Barack to exercise proper oversight. There are strong similarities between the personal re-assurances Key is offering here, and what Obama was saying ten days ago. In his White House press conference on August 9, Obama claimed:

I’ve taken steps to make sure they have strong oversight by all three branches of government and clear safeguards to prevent abuse and protect the rights of the American people…. If you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails.

Ah, but not quite. The NSA sometimes does do those things. As the NSA conceded to the Washington Post when asked for comment about the revelations in its August 15 story:

“We’re a human-run agency operating in a complex environment with a number of different regulatory regimes, so at times we find ourselves on the wrong side of the line,” a senior NSA official said in an interview, speaking with White House permission on the condition of anonymity.

The lesson being, you don’t grant these powers in the first place. Not unless the rationale for them has been widely canvassed, and extensive safeguards built in. Trust Barack, or Trust John? Trust the oversight mechanisms belatedly tacked on in piecemeal fashion to the GCSB Bill? You wouldn’t build a refrigerator this way, let alone a national security system. What we’ve seen with the GCSB Bill are token safeguards operated by people who have granted themselves the power to violate our privacy, and who are promising not to abuse that power – even though they can’t explain why they really need this power in the first place.

Again, judging by the US experience, the oversight procedures have been fashioned to fail. Plainly, the US oversight mechanisms – just like the ones contained in the GCSB Bill – have been expressly designed so as not to impede security operations. As the Washington Post noted in its coverage of the NSA report, the more you beef up the ineffectual oversights (that we’re being offered here as a sop) the more cases of abuse actually occur: “Despite the quadrupling of the NSA’s oversight staff after a series of significant violations in 2009,” the Post reported, “the rate of infractions increased throughout 2011 and early 2012.”

That’s just human nature, really. Give people the power to invade your privacy, and they’ll use it. Try to stop the GCSB with feeble oversight mechanisms, and the people involved will drive round them, and relish their ability to do so with impunity. Poor laws breed contempt. In that respect, the GCSB is a lot like its Minister. Could it be any easier to hoodwink people?

ENDS