Submission on the Crimes Amendment Bill (No. 6)

From the Anti-Bases Campaign, Christchurch

 

6 February 2001

 

This submission refers to provisions of the Supplementary Order Paper No. 85 to the Crimes Amendment Bill (No. 6) [popularly named after Paul Swain, the Minister who fronted it - Ed]. Members of the Anti-Bases Campaign (ABC) oppose passage of the Bill in its present form; our main objections pertain to the SOP and are listed below.

Introductory statement:

The Anti-Bases Campaign has opposed the Government Communications Security Bureau (GCSB) and its Waihopai station actively since 1988, shortly after the construction of the base was announced. This submission deals with the provisions of the proposed Bill and SOP. But it should be read in the context of our total opposition to the very existence of the GCSB, its secretive intrusions into personal privacy and its close ties to the international intelligence community under the UKUSA Agreement.

1. GCSB’s powers of interception should be cut, not expanded

The interception powers of the GCSB should not be exempted from Section 216B of the Crimes Act. This Government “agency” owes its existence to the Royal Prerogative, not to the actions of a representative Parliament. To expand its already extensive powers of electronic interception and consequent intrusion into personal privacy is totally unjustified. We understand that this Government intends to bring the GCSB under its own law later in 2001. The Government should not contemplate altering the powers of the agency until and unless that bill has been duly debated and passed into law. Parliament as a whole has never had oversight over the GCSB or played any role in its creation. It is patently absurd and undemocratic now to ask Parliament to pass a law expanding its interception powers when the existing powers of the GCSB do not exist in written law.

The GCSB’s methods of interception and covert links to other international intelligence organisations are known only to the extent that independent research has revealed them (see “Secret Power” by Nicky Hager, 1996). Proposed changes in the Telecommunications Act will presumably cover the expanded methods of interception that would be granted by the Crimes Amendment Bill. The cart is clearly before the horse in this legislative mess.

We object to the current electronic interception powers of the GCSB, including recording of telephone conversations via satellite, for which no warrants are required from any minister or agency of government. That state of affairs would not be changed by the Crimes Amendment Bill, indeed, it is proposed to expand the scope of the agency’s powers (using interception by as yet unknown methods), again with no reference to any need for interception warrants.

We note that these concerns are reflected in a recommendation of the Privacy Commissioner in his report to the Minister of Justice on SOP 85 (January 2001):

“As a prerequisite to granting an exemption for GCSB from the prohibition on use of listening devices, the Bureau should: (a) be placed on a statutory footing; and (b) be subject to a statutory warrant process for the undertaking of any intrusive activity, particularly where that activity would, if performed by any other person, constitute a breach of the law.”

2. Foreign vs domestic intelligence

The GCSB flatly denies that it spies on New Zealanders by intercepting their phone, email and fax messages. But in 1997 when ABC accused the GCSB of listening in on Kiwis who happen to be on one end of an international communication, we met a roadblock. We asked the then GCSB director, Ray Parker, for a definition of “domestic intelligence” but he refused to answer, invoking instead the infamous section 6(a) of the Official Information Act of 1982. He refused to answer on security grounds.

Why does the GCSB insist that it engages only in the gathering of “foreign intelligence” and then takes cover when confronted with the realistic conclusion that such intelligence gathering must involve spying on New Zealanders as well since they are often on one end of overseas communications? The reason is that the GCSB doesn’t want our citizens to know they are being spied upon at Waihopai. Now we have the Crimes Amendment Bill that would give similar powers of domestic spying to the GCSB [section 305ZFC(2)] by hacking into private computers. No warrant is required for the interception, only Prime Ministerial authorisation and consultation with the Minister of Foreign Affairs and Trade” and vague and sweeping “reasonable grounds to believe…”. It’s a blank cheque for GCSB personnel. Once a foreign organisation or foreign person has been “specified” as a target for spying (possibly based on earlier interceptions by Waihopai) there are no time limits or any other restraints on the GCSB’s intrusion into the affairs of that organisation or person. And as with the interceptions at Waihopai, such covert computer access would inevitably involve the communications of New Zealand citizens with foreigners.

3. Can the spies be trusted to follow the rules?

The simple answer is NO, we cannot trust anyone who has powers of covert interception at their command to follow rules unless they are being carefully scrutinised, and even then there is plenty of room for doubt. As the Privacy Commissioner emphasises in his detailed recommendations for “enhancing interception safeguards”:

“…beyond the very limited (although important) involvement of the judiciary there is no independent scrutiny or audit of what actually occurs after the warrant is issued and it is desirable that this gap be filled if the public are to have [confidence] that State surveillance is always conducted according to law”. (Note: the word “confidence” was omitted from our draft of the SOP.)

The ABC believes the Commissioner’s concerns are well justified. The above quote from the Commissioner’s report was presented in the context of law enforcement agencies. But it applies equally to the authorisation by the Prime Minister of GCSB interception (warrants do not apply to the GCSB).

The GCSB’s counterpart agency in Canada is the Communications Security Establishment (CSE). Testimony from a former long-serving officer of the CSE, Mike Frost, is highly relevant to the question of “trust” of intelligence agents.

“…a lot of communications traffic goes through Ottawa – from Newfoundland to Vancouver. So many times, just for the heck of it, Frost and his colleagues would turn the equipment on and ‘listen in’, plain as day, on anything their electronic gear would catch. Nobody would question it. There was no watchdog. They just did whatever they felt like doing. …they were intruding on the privacy of the people they were supposed to protect”. (from “Spyworld” by Mike Frost and Michel Gratton, Doubleday, 1994, pp. 21-22)

“…the second part of CSE’s mandate [is] that ‘it deals with foreign intelligence; it allows CSE to intercept and process foreign communications between Canada and other countries…. This part of the mandate takes up most of CSE’s resources and is more controversial because its intrusive nature has the potential for violation of the rights and freedoms of Canadians’.” (Frost and Gratton, p. 34)

The GCSB operates within the same intelligence network [1] as the CSE, in an atmosphere of maximum secrecy (the UKUSA agreement has only once been acknowledged even to exist when an Australian minister made a slip of the tongue). We have every reason to believe that Mike Frost’s descriptions of the day-to-day spying activities in the CSE, without oversight, apply equally to the GCSB. To this day, no government within the UKUSA grouping has ever had any direct oversight role over the actions of its agents. Indeed, it is only in recent years that our elected representatives even knew they existed thanks to a few dedicated researchers and ex-spies of conscience (like Frost) who spilled the beans.

In 1998/99 New Zealand’s Inspector-General of Intelligence and Security reviewed the rules under which the GCSB conducts its spying. His report (dated 28 April 1999) contained several conclusions in which he approved of the Bureau’s rules and methods of operation, the value of its intelligence activities, its relations with other intelligence partners, its protection of the privacy of New Zealanders and so on. That report and his Annual Report (22 December 1999) blandly assured New Zealanders that their private communications are not spied upon and that the NZ Government and the GCSB are entirely in control of the interception activities and all of the raw intelligence at Waihopai and Tangimoana. But he does not directly deny that the intelligence reporting systems at Waihopai are automated and directly linked to those of the UKUSA intelligence partners. He cannot deny that because he is not privy to the inner workings of the system. Nor does he directly deny that the “foreign” satellite communications of New Zealanders are spied upon for the simple reason that they are likely to involve foreigners on the other end of the line. He cannot deny it because such two-way communications, be they by telephone, fax or email, are by definition “foreign” and thus fair game at Waihopai. He never mentions this simple fact in his report but goes on to conclude:

“I am sure that the GCSB operations have no adverse or improper impact on the privacy or personal security of New Zealand citizens. I am satisfied too, that our Intelligence partners are as concerned about the privacy and security of New Zealand citizens as their own.” (Annual Report, 1998/99, p. 10)

Mike Frost’s first-hand revelations about domestic spying by the CSE were first published in 1994. The Inspector-General should have read his book.

In short, we cannot trust the spies. To expand their powers of interception to computer hacking is totally unacceptable. Existing oversight by the Inspector-General is effectively a rubber-stamp. Indeed, it is doubtful that any oversight could ever be effective given the impenetrable nature of the international intelligence community of which the GCSB is a part.

4. Summary

The Anti-Bases Campaign supports measures contained in the Crimes Amendment Bill to make computer hacking illegal. But exemptions must not be given to the intelligence agencies and the police. The exemptions should be removed from the bill.

Our submission has focused on the GCSB. But our concerns apply to the Security Intelligence Service and the Police as well. The ABC believes that increased powers of surveillance and interception would further erode the fundamental rights of all New Zealanders to engage in research, education and non-violent protest whether or not the Government agrees with them. Exercising these democratic rights must not lead to increased intrusions into privacy based on official suspicions of terrorist or criminal intent. Terrorist and criminals will find it easy to evade the prying eyes and ears of the spies and police. Innocent private citizens will not.

 

Robert L. Leonard
For the Anti-Bases Campaign

 

[1] The UKUSA agencies US National Security Agency (NSA), UK Government Communications Headquarters (GCHQ), Canadian CSE, and the Australian Defence Signals Division (DSD)

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