The gaping hole at the heart of the Intelligence Review

The need to maintain both security and the rights and liberties of New Zealanders has been at the forefront of our minds.

If your report into the intelligence services has a title like 'Intelligence and Security in a Free Society', surely you've got some obligation to put a bit of effort into the "free society" part?

The most disappointing aspect of the Intelligence Review is the lack of consideration of what human rights and civil liberties in a free society look like and how they might be weakened by government spying. 

The introduction does include some discussion of human rights but not in any concrete terms. Rather, it takes a depressing view that elevates personal security above all other rights, "Security is a prerequisite to a free, open and democratic society in which individuals can go about their lawful activities without undue interference with their rights". This is a position that we reject – we refuse to give up all of our freedoms just because someone claims that we'll be safer if we do so.

The review includes quite a lot about possible threats (we note the last terrorist attack in NZ was 30 years ago) and makes some claims that government surveillance can keep us safe, but where's the discussion of the costs of spying, not only financial and strategic, but also political? 

• Just how much does government surveillance, or the perception of it, reduce political involvement and discourage whistle-blowers?
• What damage is being done to the integration of immigrants into New Zealand by the blatant and heavy handed spying on their communities?
• At a time of dropping civic involvement, do we want to strengthen the idea that government is something that is done to people rather than by people?
• How can political exiles be sure that their attempts to encourage democracy in their home countries won't be spied on and passed to their governments? 

More importantly, how is this all changing in the digital age when more and more data is being made available for surveillance? What will it mean if we keep going down this path of improving the "efficiency and effectiveness" of the spy agencies just because we can?

You won't find any answers by reading the Intelligence Review because they just haven't bothered considering it. But this lack of consideration hasn't stopped them from recommending major changes to agency scope (turning the GCSB into a domestic as well as internationally focused agency), new warrant authorisation schemes, and tweaks to oversight regimes.

The lack of thinking about these issues results in statements like: "The debate about how best to balance the need for security and the privacy of individuals will continue for as long as both are seen as essential to a free society."

The use of the word "privacy" completely undermines the importance of the debate. Civil liberties and human rights aren't just about privacy – they're about power. They're about maintaining the proper power relationship between government and the governed in a democracy. Government agencies collecting, storing, and analysing information about people tilts the balance of power from the people towards the government. It weakens our civil liberties and thereby weakens our democracy.

Why has the review failed so badly in its consideration of what a free society is?

One clue might be in the list of 54 entities (individuals, agencies and groups) consulted by the authors of the review. There were a range of spy agencies, government agencies, individuals, and independent-but-limited govt bodies – and exactly one fully independent group with a rights focus, Amnesty International. Where are the others? Somewhere in the unpublished list of those who submitted but the reviewers didn't think it worth speaking to?

We'll have a lot more to say about the content of the Intelligence Review recommendations, but with such rickety foundations it appears that the review is just another failure to properly engage with the realities of spying in the modern age.