The new Security and Intelligence Bill does a lot.
It merges four existing laws into one. It brings the GCSB and SIS under one unifying law. It finishes removing the restrictions against the GCSB spying on New Zealanders. It sets up a single warrant authorisation scheme for both agencies. It clarifies and expands the role of the Inspector General of Intelligence Services. It defines the relationship between the agencies and the Department of the Prime Minister and Cabinet. It makes it legal for the SIS to establish cover identities and false companies. It defines a wide-ranging view of 'national security'. It increases the scope and severity of penalties for releasing, posessing or sharing classified information (including whistle-blowing). It brings the agencies further under the Privacy Act. It codifies agency access to certain government databases.
With this huge scope you can see why we're still working on our analysis of the Bill and what it means for civil liberties. As well as looking at the overall direction of spying in New Zealand (see recent speech It's about power, not privacy), we also want to particularly look at the nitty-gritty of the changes between the current laws and the new, and the differences between the Intelligence Review's recommendations and the Bill (see our article The gaping hole at the heart of the Intelligence Review).
But we do have some initial reactions.
Firstly, if we are going to have spy agencies it does make sense that the laws governing them are clear in defining what they can do and how they can do it. We've always insisted that we have the right to know how and in what circumstances the government can spy on us and this law removes some of the uncertainty.
However, the new Bill seems to be yet another round of "the agencies broke these laws in the past so we need to make it legal for them to do it in the future" when it applies to both the GCSB spying on New Zealanders and SIS agents fraudulently obtaining cover identities. How is it that these agents always seem to be protected by the establishment from the consequences of their criminal actions? What does this mean for the laws and oversight measures so carefully defined in this new Bill - will anyone be punished for breaking them or are they just more guidelines to be broken and then 'fixed up' in the next review?
Furthermore, why is it that every intelligence or surveillance related law we get always ends up significantly expanding the scope of the surveillance that the government can use against New Zealanders? In particular, we have now completely given up on the idea that the GCSB will only be used to spy on foreign countries, and it is now fully enabled to spy on New Zealanders. Does this also mean that the full Five Eyes global panopticon can be brought in by the GCSB to spy on NZers after getting the appropriate authorisation? We note that this extension of power isn't in reaction to a significant change in New Zealand's strategic situation or a wave of internal subversion and attacks, but seems to be based on government and agency paranoia.
And finally, just what are the agencies and the government trying to do with the new rules about hiding the identity of GCSB workers, further controlling classified information and so on? Some of these look to be less about maintaining security and more about having the ability to shut down whistle-blowers who might embarrass the agencies (yet again).
There's a lot to look at and we're pleased that the government has indicated that the Bill will go through the full Select Committee consultation process. We look forward to presenting our views there.
See our round-up article for links to more commentary and articles about the Intelligence and Security Bill.