The real flaws in the spy bill

Kapi-Mana News - - OPINION/FEATURE -

While Kim Dot­com’s clash with Prime Min­is­ter John Key pro­vided the main drama at the In­tel­li­gence and Se­cu­rity Com­mit­tee hear­ings on the new GCSB leg­is­la­tion, other sub­mit­ters high­lighted the flaws in the draft bill.

The Law So­ci­ety, Tech Lib­erty and In­ter­net NZ all made worth­while con­tri­bu­tions to the com­mit­tee pro­ceed­ings.

In­cred­i­bly, as Tech Lib­erty’s Thomas Bea­gle pointed out, the bill is com­pletely silent on the gath­er­ing, anal­y­sis, shar­ing and stor­age of meta­data, de­spite that be­ing, as he said, ‘‘ an im­por­tant part of mod­ern sur­veil­lance and spy­ing, and there is no doubt that the GCSB has been in­volved in its col­lec­tion and anal­y­sis’’.

Meta­data in­cludes, for in­stance, the in­for­ma­tion that sum­marises when, where and be­tween whom a pri­vate com­mu­ni­ca­tion hap­pens.

‘‘ But there’s no men­tion of where they can and can’t get it from,’’ Bea­gle noted, ‘‘or how long they can keep it, or any­thing else.’’

Ac­cord­ing to the Kit­teridge re­port, the GCSB has re­peat­edly bro­ken the cur­rent law while ‘‘as­sist­ing’’ other agen­cies, such as the po­lice.

How­ever, as In­ter­net NZ pointed out, once the sur­veil­lance as­sis­tance be­ing pro­vided by the GCSB be­comes pro­tected by the new law, a sim­i­lar cone of se­crecy and le­gal val­i­da­tion will be cast over the ac­tions of those agen­cies it is as­sist­ing, even though with­out the GCSB’s in­volve­ment, that may not have been the case.

In the process, the over­sight role of the In­spec­tor-Gen­eral will be ren­dered vir­tu­ally mean­ing­less be­cause if all com­mu­ni­ca­tions and meta­data analy­ses based on them po­ten­tially be­come fair game for the GCSB in fu­ture, then the In­spec­tor-Gen­eral would be vir­tu­ally com­pelled to sign off each and ev­ery pri­vacy in­tru­sion as be­ing jus­ti­fied.

Al­legedly, the new bill ex­ists be­cause of ‘‘un­clear’’ lan­guage in the present act.

Yet in key pro­vi­sions, the draft bill is less clear than the leg­is­la­tion it seeks to re­place.

Sec­tion 8B of the draft bill, for in­stance, au­tho­rises ‘‘gath­er­ing in­for­ma­tion about in­for­ma­tion in­fra­struc­tures’’ by the GCSB with­out defin­ing what in­for­ma­tion in­fra­struc­tures ac­tu­ally mean or en­com­pass.

Also, as the Law Com­mis­sion chair­man Sir Grant Ham­mond has pointed out, no clear def­i­ni­tion of even a ba­sic term such as ‘‘ pri­vate com­mu­ni­ca­tion’’ ex­ists within the draft bill.

Such flaws have only helped to sub­stan­ti­ate the wider points be­ing made by Dot­com. Namely, that the new bill cre­ates a sys­tem of mass sur­veil­lance that sig­nif­i­cantly erodes the pri­vacy rights of all New Zealan­ders.

More­over, the bill is be­ing rushed through Par­lia­ment un­der ur­gency be­fore the Govern­ment has made any case as to why it is nec­es­sary.

Rhetoric aside, the pro­posed leg­is­la­tion sig­nif­i­cantly ex­pands the GCSB’s tight fo­cus on ex­ter­nal in­tel­li­gence by adding an ill- de­fined in­volve­ment in do­mes­tic spy­ing.

Lastly (and iron­i­cally), for a se­cu­rity bill pack­aged as a de­fence of New Zealand’s eco­nomic well­be­ing, the lack of proper bound­aries and over­sight safe­guards threat­ens to dam­age this coun­try’s high-tech and IP sec­tors.

To that ex­tent, the draft bill could well un­der­mine the Govern­ment’s $1.5 bil­lion in­vest­ment in faster broad­band.

Al­ready, Google has warned about the back­lash against New Zealand that the GCSB bill is likely to ig­nite.

Yet to date, there has been no cost ben­e­fit anal­y­sis of the im­pact of that bill on the IP and high­tech sec­tors that it pur­ports to de­fend.

In sum, Kim Dot­com may be the least of the Govern­ment’s prob­lems with the GCSB bill.

GOR­DON CAMP­BELL

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