Column – Gordon Campbell
While Kim Dotcoms appearance was the highlight of yesterdays hearings by the Intelligence and Security Committee, his commentary on the GCSB Bill was in sync with the flaws in the draft Bill identified earlier in the afternoon by other submitters, …
Gordon Campbell on Kim Dotcom’s latest contribution to our security laws
by Gordon Campbell
While Kim Dotcom’s appearance was the highlight of yesterday’s hearings by the Intelligence and Security Committee, his commentary on the GCSB Bill was in sync with the flaws in the draft Bill identified earlier in the afternoon by other submitters, such as Tech Liberty whose submission is here and Internet NZ, whose submission is here. Yesterday’s Law Society presentation by Rodney Harrison has been the other crucial contribution to the proceedings and is available here.
Three of the many flaws identified in the draft Bill are worth citing. Incredibly, as Tech Liberty’s Thomas Beagle pointed out, the Bill is absolutely silent on the gathering, analysis, sharing and storage of meta data:
Metadata is an important part of modern surveillance and spying and there is no doubt that the GCSB has been involved in its collection and analysis – but this Bill doesn’t mention it. It doesn’t clarify the rules around when and who the GCSB can collect metadata about. There’s no mention of where they can and can’t get it from, or how long they can keep it, or … anything else. There’s no indication that Kitteridge’s recommendation that metadata be treated the same as communications has been accepted.
Repeatedly, the GCSB has broken the current law while engaged in “assisting” other agencies, such as the Police. Yet as Internet NZ pointed out – and echoing Law Society concerns – because the surveillance actions of the GCSB will be protected by this statute, this will have the effect of casting a similar cone of secrecy and legal validation over the actions of the agencies that it is “assisting” even though without the GCSB’s involvement, this would not have been the case. Moreover, the draft Bill transforms the oversight role of the Inspector-General into an essentially meaningless exercise – because if all communications and meta-data analyses based upon them are potentially fair game, the Inspector-General will be compelled in future to sign off each and every privacy intrusion as being justified. Here’s how the Internet NZ submission spelt out this problem:
There does not seem to be anything within the Bill that restricts the Bureau from storing in its systems and databases interception communications from New Zealanders which were obtained while providing the new function of assistance… This is but one example of the extraordinary and unsatisfactory position that would result under this Bill. Importantly, even if it could be argued that the correct statutory interpretation is narrower, experience shows that GCSB and others are likely to take the wider interpretation. That should not be left to doubt and opportunistic interpretation, where checks and balances are limited. After all….the Inspector General may have no choice but to give his or her sign-off to such extreme incursions on human rights, in breach of NZBORA, whatever reservations he or she may have.
Thirdly, the Bill exists because of allegedly ‘unclear” language in the current GCSB Act. Yet the draft Bill is far less clear in key provisions than the legislation that it aims to replace. Section 8B of the draft Bill for instance authorizes “gathering information about information infrastructures” by the GCSB, without attempting to define and set boundaries on what ‘information infrastructures” may mean. Also, as the Law Comnmission chairman Sir Grant Hammond has pointed out, there is no clear definition of even a basic term like “private communication” in the draft Bill.
Furthermore, the Bill expands the GCSB’s clear and tight focus on external intelligence gathering by adding an ill-defined and wide ranging involvement in domestic spying. By doing so, it expands the GCSB focus on national security to include (under section 7c) the safeguarding of New Zealand’s “economic wellbeing.” This vaporous term could be taken to mean anything, and could – for instance – include treating anyone who protests against the TPP trade negotiations as being opposed to New Zealand’s “economic wellbeing” and thus a valid target of GCSB spying on their phone and email messages. Ironically for a security Bill that has packaged itself as being a defence of New Zealand’s economic wellbeing, the Bill’s lack of proper boundaries and oversight safeguards threatens to do real damage to this country’s high tech and IP sectors. To that extent, the draft Bill runs utterly counter to and undermines the government’s investment in faster broadband. Google has already warned the Committee about the backlash to New Zealand that the GCSB Bill is likely to ignite. As some submitters noted yesterday, there has been no cost benefit analysis of the impact of this Bill on the IP and high tech sectors that it purports to defend.
Finally, the Police and military – the very agencies whose alleged need for GSCB assistance provide one of the main rationales for the Bill – have made no appearance before the Security and Intelligence committee. Only a truly independent inquiry, it would seem, will be able to flush them out. One more sign that the sham presided over yesterday by Prime Minister John Key is making no genuine attempt to get to grips with the issues at stake in giving the GCSB carte blanche.
All this is mere background to Dotcom’s appearance, which can be seen here. Yesterday, the Law Society’s Rodney Harrison QC had already stressed that no justification has yet been presented by the government to justify the expansion of the GCSB’s surveillance powers – and its intrusion of the agency into domestic spying – that the Bill will create. Eloquently, Dotcom also denounced this expansion of the surveillance powers of the state. Under the new Bill, as he pointed out, everyone will be placed under mass surveillance and treated as a suspect. As a consequence, the government – and their school chums running the GCSB – will be able to trawl back through anyone’s trove of private communications, and thereby concoct an indictment – as had occurred in his case, Dotcom pointed out, whereby a jocular reference by one of his colleagues that had likened Megaupload to “pirates” like Steve Jobs and Bill Gates had ended up being selectively interpreted as an actual confession of criminality and made part of an FBI indictment. The real pirates in this process, Dotcom indicated, were the governments of the US and New Zealand, in the pillaging of the privacy rights of their citizens.
Regardless of the quality of the presentation, what Dotcom was saying had fallen on deaf ears – as Key’s immediate response indicated all too clearly. Probably, the most telling moment of the entire afternoon came at the end of Dotcom’s presentation, when Key began to question the Internet entrepreneur. The Washington Post has carried the gist of the exchange:
The Prime Minister had Dotcom agree that people once used Megaupload to outsource their file storage. Wasn’t it the same thing, the prime minister asked, for the spy agency to accept work that other agencies outsource to it? “On Megaupload you would share a file,” Dotcom replied. “On the GCSB spy cloud you share private information about citizens that you don’t have any right to access. That is the big difference.”
Exactly. To Key, the GCSB Bill is just a matter of efficient outsourcing. The right to privacy of ordinary citizens who have not been accused of any crime? Why, to Key, such rights are easily expendable in the name of economic efficiency. Incredibly, it was left to Dotcom to spell out to Key that the analogy between Megaupload –which was a cloud storage service upon which people voluntarily placed and downloaded files of their choice, with due respect to the industry standards for copyright recognition that have been recognized in various recent US civil court actions – is utterly different from the situation created by the GCSB Bill.
To state the bleedingly obvious: by contrast, and under the GCSB Bill, a spy cloud amasses private information that has been harvested from people without their consent and with no respect for their privacy rights, and this information is then shared with foreign intelligence agencies and governments, to the potential detriment of New Zealand – especially when it involves surveillance of ordinary New Zealand citizens and businesses and their trading partners (such as China.) The fact that Key needed to have the difference between the GCSB Bill and Megaupload explained to him speaks volumes about the empty vessel in the prime ministerial suit.