The real flaws in the spy bill
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.