Freedom of expression
I’m involved with the NZ Council for Civil Liberties because I’m a fan of democracy. It’s common these days to sneer at democracy, but I believe it’s still the best way we’ve found to organise ourselves on a large scale.
But democracy relies on civil liberties, and in particular, the liberty that underpins it is freedom of expression.
This is not just the right to speak, it’s also the right to listen, to find out things, to share information, to exchange views with others. It covers ideas and speech in the mainstream and it also covers radical ideas, new ideas that challenge us, ideas that are at the time obviously ridiculous.
Like the right of women to be treated as equal with men, or for homosexual people to be able to love each other without persecution, or for people to be able to follow the religion of their choice.
Talking to each other
Freedom of expression gives us the right to talk about these things to each other. To persuade each other that these new ideas are correct and that we need to change our society and our laws to match. And this, to my mind, is what democracy is about.
But freedom of expression is a delicate thing. Not everyone is prepared to risk their reputation or their job or their liberty to say what they know is right. People fear that speaking up will get them in ‘trouble’, even though they sometimes find it hard to define exactly what that trouble might be.
Government surveillance and spying
And this brings us to government surveillance and government spying.
We all know that more and more data is being collected about us by companies and governments. We’re aware of the increase in surveillance cameras, of the ability to track our movements through mobile phones, of the use of social media to monitor our behaviour. The surveillance society appears to be a natural outgrowth of the digital revolution.
But the revelations of Edward Snowden and the publicity around them have made us all realise just how far this surveillance is going. The stated desire of the NSA and the Five Eyes network is to “collect it all”. All the phone calls. All the text messages. All the snapchats, whatsapps, tweets, emails, blogs, etc.
And with this awareness has come well-founded paranoia.
While the average Kiwi is of little interest to the intelligence agencies, the average Kiwi still knows that their information is being collected. Even if it’s not being collected in New Zealand, the Southern Cross cable that connects us to the world is well penetrated and the information collected there is available to New Zealand agencies through Five Eyes information sharing.
Perception of spying
The reality of how much government agencies are spying on any individual probably doesn’t matter as much as the perception that they might be.
Because when people know they’re being watched they behave differently. I want to give two real world examples of what that means.
Some years ago the NZ Police started turning up to political demonstrations with a camera and would overtly take photos of the people involved.
I was told this by someone who stopped going to demonstrations because they didn’t like it. They weren’t breaking the law - they were not only doing nothing wrong, they were actively trying to improve the society that we live in. They couldn’t quite articulate what made them stop – but they were put off democratic participation by state surveillance.
My second example is that recently I was participating in an online discussion with someone about Custom’s request for the powers to demand passwords at the border. We were chatting about it when they suddenly said “I’m not sure I should be participating in this conversation. I travel a lot and I don’t want to singled out for extra attention.” And then they dropped out of the conversation.
Both of these examples are of political speech which is regarded as the most protected by the right to freedom of expression. And yet the existence of government surveillance was enough to stop it cold.
You could argue that these two people were being overly paranoid but maybe they’re just already thinking about the long game? Those photos and that internet discussion are going to be on a database for the rest of their lives. Who wants to gamble that the world and NZ won’t become more totalitarian over the next 10 or 20 years?
The mere existence of spying causes a chilling effect on public participation in political activity.
Spying also undermines political activity carried out by groups. Even innocuous activist groups in New Zealand have been spied on by police informers and most also assume that the SIS spy on them as well. The requirement to protect New Zealand’s “economic security” covers a multitude of sins.
Spying harms political groups by reducing trust amongst members. It has also led to problems with spies trying to radicalise groups to maintain their threat level and therefore the spy’s income. And, of course, discovery of a spy can easily lead to the breakup of a group through disillusionment and increased paranoia.
Activist groups play an important role in introducing ideas into our society. Government spying on them is an attack on freedom of association and thereby weakens our democracy.
Another valuable outlet in a democracy is whistleblowing. This is where someone sees that the government is doing something illegal or immoral and exposes the wrongdoing to the world.
It would be nice to think that whistle-blowers would be rewarded for their service to society, but all too often they lose their job, and the gratitude of society doesn’t extend to helping them find another one.
It’s no wonder that whistle-blowers often wish to remain anonymous and journalists put in a significant effort to help them remain so – but in a surveillance society this is getting harder and harder. You can get all the advice in the world about secure email and leaving your phone behind and wearing a broad-brimmed hat for the cameras, but just one slip is enough to reveal your identity when the public relations hits the fan.
How many potential whistle-blowers are there in New Zealand who feel that they can’t reveal bad behaviour because of the fear of being caught?
Civil liberties overseas
And while I’m from the New Zealand Council for Civil Liberties, I want to mention the effect of New Zealand’s spying on democracy and civil liberties overseas.
We’ve always known that the GCSB’s main role is to spy on countries in our part of the world on behalf of the Five Eyes, but the Snowden files revealed more about the indiscriminate way the captured information is handed over to them.
This info can then be shared with governments in other countries if it’s seen to be in the interests of one of the Five Eyes. But this isn’t always going to be in the interests of the people in these countries, who might be fighting for democracy or better government.
How many pro-democracy and anti-corruption campaigners has the GCSB’s information caused to be jailed, beaten up or killed in the countries we spy on?
Not just spying
So far I’ve been talking about the way that spying and surveillance undermines freedom of expression and democracy, but the way the agencies are run also cause problems.
Cold war mentality
The spy agencies are creations of the cold war. They were created by people who feared that the scourge of communism might sneak into our homes and possess an unsuspecting populace.
That was not a security issue, that was a political issue, the fear of an idea.
While the SIS now claims to be only concerned with “security threats” it is still a political spy agency. It’s just had to change its vocabulary from “communism” and “fifth columnists” to “terrorism” and “extremists”. It still judges people based on their politics, sorting them into acceptable and unacceptable.
I don’t believe that the government in a democracy has any business worrying about people’s political beliefs. Our government should be focusing on preventing criminal actions, not policing ideology. Anything else is a threat to our rights of freedom of thought and freedom of association.
The spy agencies are also subverting the technology we use to communicate.
One of the things that amazed me about the GCSB law changes in 2013 was the sheer extent of the power grab by the GCSB. They asked for, and received, oversight and control of all the significant telecommunication networks in New Zealand. You run a telephone company or internet service provider and want to buy some new equipment? You’ve got to get permission from the GCSB.
Google thought this was so unworkable that they closed down a new research network they were setting up in New Zealand and moved it to Australia.
What sort of country are we, where we give the spies the right to control our telecommunications industry to ensure that they can keep spying on it? We’re told it’s for security, but how can we trust security advice from an agency whose very purpose is to break that security so that they can spy?
As far as I know, this level of control is unprecedented in any similar democracy although other governments are doing their best to catch up.
The secrecy problem
Finally I want to turn towards the problem of secrecy and oversight.
We’re proud of our open democracy in New Zealand. We’re proud of our Official Information Act that says that government has to tell us what they’re doing, even if the OIA is steadily being undermined.
The transparency of government is what allows us to provide meaningful oversight and to make informed decisions when it comes to voting.
But the spy agencies insist that the work they do is too secret, that to allow even the smallest degree of transparency will threaten the security of New Zealand.
The intelligence agencies even want to be able to present secret evidence in court that the person accused of the crime can’t be told. Being convicted based on evidence that you can’t even hear let alone challenge is a gross attack on our right to a fair trial.
This secrecy obsession applies not only to their spying but to nearly everything about what they do and how they work.
Oversight is provided by the Inspector General - appointed by the government. Unfortunately much of her work also has to be kept secret too so we’re meant to just trust her.
But I don’t trust the government and nor should I. This is why we have transparency and the Ombudsman and an independent judiciary and elections – because governments are fundamentally untrustworthy because they’re made up of people.
The existence of secretive organisations that we’re not allowed to examine undermines the workings of our democracy.
The Intelligence Review
I’ve listed a number of ways that spying and spy agencies can and do damage our democracy. Will the Intelligence Review be looking at any of these issues in any depth?
On the plus side, the terms of reference for the review asks “whether the legislative frameworks are well placed to protect NZ’s security while protecting individual rights”.
But the choice of reviewers shows that the government doesn’t want any boat-rocking or insightful analysis. We’ve already seen public comment that reveal that they see their role as making minor tweaks and accommodations. There’s a chance we’ll end up with a few trivial improvements, but nothing that cuts to the core of these problems.
More importantly there’s not going to be any serious analysis of whether the existence of these agencies are justified in terms of the damage they do to our society. The NZ Bill of Rights says that our rights and freedoms can only be limited when the need for it can be demonstrably justified in a free and democratic society.
But where’s the justification for the intelligence agencies? Where’s the justification for the millions we spend on keeping over 500 people employed by them? Where’s the justifications for the laws that support their spying on people both here and overseas?
We’re heading into a world where there are no technical limits on the extent of surveillance and spying. We will be able to, to use the NSA’s words, collect it all and analyse it all. Our government will be in a position to know everything about us.
I don’t want to live in this world.
But we don’t have to do this. We can choose to impose our own limits. We can choose how much spying we accept in our society. We’re a democratic society and we can choose to maintain that democracy.
Rather than a rubber-stamp review, we need to take a real look at the future, and whether these agencies and the mindsets they represent are appropriate to the type of society we want to live in.