Submission: NZ Intelligence & Security Bill 2016
Text of our submission on the NZ Intelligence & Security Bill to the Foreign Affairs, Defence and Trade Select Committee.
Surveillance and Spying in New Zealand
This Bill is a wholesale rewrite of the laws governing New Zealand’s security and intelligence agencies. The Bill addresses the purpose and objectives of the agencies as well as the powers they have to realise them. Most importantly, it redefines who can spy on New Zealanders for intelligence (rather than criminal purposes as handled by the NZ Police), when they can do so, and how.
It is a timely rewrite as the digitisation of modern life has made surveillance significantly easier and cheaper, a trend we expect to continue. Indeed, we are rapidly approaching the point where the only constraints on the surveillance society are those that we create for ourselves.
The flawed Intelligence Review
But the rewrite is flawed from the start as it is based on the flawed Intelligence Review. The most disappointing aspect of the 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. For example:
- 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?
- 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?
- At a time of declining civic engagement, do we want to strengthen the idea that government is something that is done to people rather than by people?
The Review doesn’t consider these ideas. More importantly, it fails to consider how this is 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?
Rather, the Review takes a depressing view that elevates personal security above all other rights, claiming "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 makes the dubious claim that we'll be safer if we do so.
With the Intelligence & Security Bill so closely based on the recommendations of the review, these omissions and lack of thinking have constrained what is written and prevented a more balanced view of just how much the New Zealand Government should be able to spy on both the people of New Zealand and the rest of the world.
Should the government be able to spy on us at all?
The Council has long been broadly opposed to the government spying on New Zealanders. Spying as practiced in New Zealand has often seemed incompetent, short-sighted, politically motivated, and even vindictive. It has been used in the past to attempt to enforce political conformity and suppress dissenting views.
We have also been concerned about New Zealand’s spying on other countries, particularly when it has been done not for our own national purposes but on behalf of other countries in what is now called the Five Eyes spy network. The interests of allied countries should not be automatically assumed to be the national interest of New Zealand merely due to diplomatic implications. We support civil liberties for everyone, not just New Zealanders, and we fear that what is being done in our name may be undermining civil liberties in other countries.
Over the years the Council’s position has varied from a rejection of the SIS and a repudiation of all politically motivated spying, to a desire to ensure that any spying is performed fairly, in accordance with due process, and with strong oversight. We have come to accept the Police use of targeted surveillance to stop serious crime. And, even though New Zealand has been free from terrorist attacks for over 30 years, we are not immune from the fear-mongering of those who claim we need spying by our intelligence services to maintain this record.
However, the Council as a whole agrees that if we are to have spying at all, that the following overriding principles should apply:
- That spying should be reserved for occasions when the health and wellbeing of people living in New Zealand or New Zealanders overseas is at clear and significant risk.
- That spying should be rare, the exception and not the rule, both in frequency and scope.
This is very different from the objectives allowed for in the Bill, where spying and surveillance can be used for economic purposes and “international relations and well-being of New Zealand”. These objectives, written to obscure as much as illuminate, have obviously been chosen not because they are what we need intelligence agencies to do, but more to cover the activities they are already engaged in, or wish to engage in at some point in the future.
The problem of oversight
The Bill makes changes to the current oversight regime and in general these changes seem to be beneficial. However, there is a wider problem with the credibility of oversight of the intelligence agencies and changing the law is not going to fix it.
The Intelligence Review and the Bill make it clear that people in the intelligence agencies have been breaking laws to obtain and use false identities. The Kitteridge report showed that the GCSB had been breaking the law and spying on New Zealanders.
To the best of our knowledge, no member of the SIS or the GCSB has been charged with breaking any of these laws. Rather the law has been changed to change the status of these acts to make them lawful in the future.
How can any form of oversight be taken seriously when the punishments and penalties are seemingly never imposed? Why should the agencies and the people who work for them treat this new law as anything but a general guideline that can be ignored when they feel it’s necessary?
Turning the international spy network against New Zealanders
A major change in the Bill is the final abandonment of the GCSB’s inability to spy on New Zealanders. This limitation was seen as an important part of passing the initial GCSB law as shown by the debates recorded in Hansard. There is no justification given for this change except that it will make things easier for the intelligence agencies.
However, it seems that there is a lot more to this than allowing a New Zealand government agency to use its extensive legal powers (TICSA) and technical abilities to spy on the electronic communications of New Zealanders.
As we all now know, New Zealand’s GCSB is a key part of the Five Eyes spy network and therefore has access to the largest and most pervasive electronic spy network in the world. In particular, the US government penetration of internet connections and the largely US-based internet services used by New Zealanders makes an unprecedented amount of deeply personal, private and political material available.
It seems that the unwritten intention of this rewrite is to allow the New Zealand government to use this global spy network against New Zealanders.
We wish to express our deep concern at these changes. At a time when our society and our lives are increasingly being digitised, making this available to government spies seems like a very significant step towards the fully surveilled society. We do not believe this is compatible with the level of privacy and freedom of expression required in a democracy.
The normalisation of spying
What we see as the most concerning element of the Bill is something that is implicit rather than explicit – it’s the next step in the ongoing normalisation of government spying and surveillance.
The government’s reaction to the public outcry at the Snowden revelations appears to be to significantly increase the powers and scope of operations of one of the intelligence agencies at the heart of those revelations.
Many New Zealanders seem to believe that this is in response to increased terrorist activity, neglecting the fact that New Zealand hasn’t had a terrorist attack in over 30 years. And for those pointing to terrorist attacks occurring overseas, we note that the target countries frequently have extensive internal spy networks that often appear to have been ineffectual. It also neglects that, as the objectives show, much of the spying performed by these agencies has very little to do with protecting New Zealanders from harm.
The government’s position appears to be that we can give ever more extensive powers to these agencies, relying on good process and oversight to protect us from any overreach or misuse. Judging by the provisions for emergency warrantless surveillance, we suspect they are indulging in James Bondian fantasies of heroic secret agents and last-minute ticking bombs.
The reality, at least according to what we’ve seen, has been the SIS persecuting refugees. It’s been the Police and GCSB, palpably excited to be involved in an international operation, breaking both the law and common sense to turn the full forces of the state against someone accused of breaking copyright law.
It is the nature of law enforcement and security agencies to wish for more powers so they can perform better. But the agencies and associated oversight bodies and Ministers are all people and like all of us, suffer from the normal human flaws. We are not convinced that anyone can be trusted with these powers, nor that the political cost of these powers can be justified.
When information is power, and when government agencies are increasingly collecting, storing, and analysing information about people, the balance of power tilts from the people towards the government.
Even just the public awareness that this is available can provide a significant brake on free expression and freedom of association. Knowing that you can be watched, either now or in retrospect, imposes a chilling effect on people’s involvement in political activity. This damages our democracy and we don’t believe it is worth it.
Conclusion
We are not opposed to a rewrite of the laws controlling New Zealand’s intelligence agencies.
We have long argued that New Zealanders are entitled to a clear understanding of how and when the government can spy on them, so improving the clarity of the laws has value. We also appreciate the minor improvements to the authorisation regime and oversight provisions, although we believe that oversight is still a significant problem.
However, this Bill is the flawed product of a flawed and limited Intelligence Review. The focus on improving the “efficiency and effectiveness” of the intelligence agencies fails to properly account for the fact that some of these “inefficiencies” were constraints deliberately put in place to protect our freedoms.
We believe that rather than passing this Bill as is, we need another Intelligence Review. One that goes beyond just a desire to streamline the status quo. One that's prepared to look at the costs of surveillance and not just the rather over-hyped benefits. One that gives more than just lip service to civil liberties and our democracy.
We believe that a better Intelligence Review would lead to a significantly different Intelligence and Security Bill that would be better for our democracy and better for New Zealand.