Dennis Tegg: Loophole that legalises official snooping

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GCSB must tell us how it interprets the rules intended to control its spying on New Zealanders.

We have been assured repeatedly by the Prime Minister that the Government Communications Security Bureau cannot spy on New Zealanders without a warrant.

But what if our much greater knowledge of mass global surveillance gained from Edward Snowden’s disclosures has left New Zealanders exposed to lawful warrant-less spying by the bureau? That perverse outcome has been overlooked since the GCSB Act was passed last September.

Snowden’s revelations mean that most of us have greatly increased expectations that our calls and online activity will be intercepted by someone, somewhere.

A recent Stuff/Ipsos poll, shows 71.6 per cent of New Zealanders believe US spy agencies are gathering data on them.

These increased expectations of interception profoundly affect the legal interpretation of a critical phrase, “private communication”, in the GCSB Act.

It is critical because it is supposed to provide protection for New Zealanders against the GCSB’s most intrusive intelligence gathering and warrant-less interception powers.

Under the act a communication can be “private”, and therefore protected from interception, only if one of the parties has a “reasonable expectation” that their communication will not be intercepted.

Once we reasonably expect that our everyday communications will be intercepted, the GCSB can lawfully deem those communications to be not private.

We lose the supposed legal safeguards for our privacy. These “protections” become a cynical contrivance, and the Prime Minister’s comforting assurances that a warrant is always required are exposed as empty blather.

No amount of oversight after the event can protect the public if the GCSB is lawfully spying on New Zealanders without a warrant.

The Government has long known about this legal loophole, but has purposely chosen not to close it.

Sir Grant Hammond / Photo / Mark Mitchell

In his June 2013 submission, Court of Appeal judge Sir Grant Hammond raised serious concerns about the phrase “private communication” in the GCSB bill, recommending: “The definition of “private communication” be revised to better reflect the level of communications, information and data privacy that New Zealanders may reasonably expect.”

The Prime Minister’s office openly acknowledged that New Zealanders’ metadata and content would not always meet the legal test for a “private communication” and could be intercepted.

But the Government passed the bill without a precise and protective definition. It was rushed through Parliament with a two vote majority including the vote of MP Peter Dunne.

Mr Dunne obtained what has turned out to be a hollow promise to review the definition of “private communication”. A year later, the review has not started, and has been delayed indefinitely.

Snowden has said New Zealand is one of the countries to which US and UK spy agencies gave “legal guidance” on how to degrade its legal protections.

“Lawyers from the National Security Agency and UK’s GCHQ work very hard to search for loopholes in laws that they can use to justify indiscriminate, dragnet surveillance operations that were at best unwittingly authorised by lawmakers.”

Some might believe the GCSB would not deliberately open and exploit loopholes in this manner. But unlike its US counterpart, the GCSB’s legal manuals are kept secret.

The legal stance taken by US and UK Five Eyes partners suggests an uncompromising search for loopholes is standard practice within that pact.

US authorities recently argued that even users of encrypted email service Lavabit did not have a reasonable expectation that their emails would not be intercepted.

In the UK, intelligence officials have contended in court that two users messaging each other on Facebook were not communicating with each other but with the Facebook “platform”.

We know the GCSB bungled the Dotcom case by spying unlawfully on him. But the real and present danger to our privacy and civil liberties lies right under our noses in the revised GCSB Act. The danger lurks in the exploitation of acknowledged loopholes which permit lawful warrant-less surveillance of Kiwis.

The GCSB must release its internal legal manuals and opinions. The USA’s spy agency did so last November. Only when the public have seen these documents can they judge whether or not the GCSB considers it has the power to spy lawfully on New Zealanders without a warrant. Nothing to hide – nothing to fear?

– NZ Herald