Home > The Body Politic > The GCSB – when plain english simply won’t do.

The GCSB – when plain english simply won’t do.

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spy vs politician

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Question: Is the GCSB staffed and managed by people for whom english is a second language?

The reason I ask is that I’ve been hearing over and over again that the Act covering the Government Communications Securitry Bureau (GCSB) is somehow, “vague”.

For example Deputy Prime Minister Bill English said,

It highlights the fact that the legislation for GCSB is probably legally flawed right from the start. The law is likely to need to change.”

This “vagueness” in the law – the Government Communications Security Bureau Act 2003 – is supposedly ‘unclear’ and ‘confusing’, which resulted in the Bureau illegally spying on 88  New Zealander permanent residents and/or citizens (see:  Legality of spy operations called into question).

So how vague is the Act? Specifically Part 3, Section 14,

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Government Communications Security Bureau Act 2003 - section 3-14

Acknowledgement:  Parliamentary Counsel Office: Government Communications Security Bureau Act 2003

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Section 14 states,

Restrictions imposed on interceptions

14 Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Let’s dissect that paragraph,
Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau …”

That’s fairly clear; we start of  by identifying who is covered by this paragraph,

  •  the Director
  •  employees,
  •  or anyone acting on behalf of the Bureau

“… may authorise or take any action for the purpose of intercepting the communications of a person…”

Again, fairly clear; the people mentioned above cannot “intercept[ing] the communications of a person…”

And the “punch-line”,

“…(not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident”.

So, if you’re a “a New Zealand citizen or a permanent resident”, you cannot have your commmunications intercepted by “the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau“.

That’s not only clear, but it’s not even written in ‘legalese’!?

The GCSB believed that they were allowed to spy on behalf of Police (or OFCANZ, to be specific).

But nowhere does the Act allow the GCSB to spy on behalf of the Police. In fact, the Act states in at least two parts, precisely who the GCSB may collect data on;

Part 2
7. Objective of Bureau
  • (1) The objective of the Bureau is to contribute to the national security of New Zealand by providing—

    • (a) foreign intelligence that the Government of New Zealand requires to protect and advance—
      • (i) the security or defence of New Zealand; or
      • (ii) the international relations of the Government of New Zealand; or
      • (iii) New Zealand’s international well-being or economic well-being; and
    • (b) foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and
    • (c) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—
      • (i) protect and enhance the security of their communications, information systems, and computer systems; or
      • (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.

    (2) For the purposes of subsection (1)(a)(iii), the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Part 3
13. Purpose of Part
  • The purpose of this Part is,—

    • (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and
    • (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.

Both paragraphs emphasise over and over again two words; foreign and international.
Coupled with Paragraph 14, it seems to this blogger (and I have zero legal training, except watching old ‘Perry Mason‘ tv programmes in my youth) that the law is fairly clear in,
  1. Meaning
  2. Intent
  3. Wording

Whatever possessed the GCSB to believe that they were allowed to spy on behalf of  OFCANZ?

For the GCSB to claim that they “believed they were allowed to spy on behalf of others such as the Police or SIS” is akin to saying they were allowed to spy on NZ citizens only on every other day, except Sunday. Ridiculous.

This is not about a “vague” or “unworkable” law.

This is about a government department that had minimal oversight and attempted to get away with flouting the law.

What  “oversight’ there was consisted of  an aging, retired judge who works part-time – and an even more apparently  feeble-minded Prime Minister who has severe memory-retention problems and seems to take little interest in what the GCSB is up to.

The GCSB has been caught out in a “matesy” relationship with OFCANZ – due in part to the ‘glamourous’ work being undertaken at the behest of the United States’ FBI, regarding Kim Dotcom. The GCSB simply didn’t want to be left out of the “action”.

This was a bunch of “boys” with high tech gear; truckloads of money; and no one watching what they were getting up to.

No wonder they broke the law in their spying.

They thought they could get away with it.

Why?

Why not. Because, after all,  who watches the Watchmen?

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= fs =

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  1. di\
    10 April 2013 at 9:08 am

    But hey, no problem. Key has announced that National will simply change the law to suit the behaviour. The same thing happened in the US. FBI and police were found to have broken the law by spying on anyone left of Nixon. So, in comes the Patriot Act and other acts not only allowing the behaviour, but allowing it to go on in secret and without recourse to the courts. The Canterbury Earthquake Recovery Act sets precedent here with Quake Tsar Gerry now able to do pretty much as he pleases. National is running roughshod over basic rights, including property rights. Much is rationalized as being in support of efficiency. I remember that Mussolini was credited with making the trains run on time. Poor John has missed an opportunity what with National’s hostility to rail.

  2. Deborah Kean
    10 April 2013 at 5:26 pm

    Yes, the good old retrospective legislation! I thought NACT frowned on that… Yeah, Tui billboard!
    Deb

  3. Akldnut
    10 April 2013 at 11:54 pm

    Why were no questions asked in Parliament Q&A to $20 Bill which the misleading parts of the legislation were that had the GCSB believing they could do this?

    • 11 April 2013 at 4:51 pm

      Excellent question, Akldnut. I would’ve thought it would the very first question the Opposition would ask Key… Because i’m buggered if I can see how the GCSB thought the law stated they could spy on citizens and residents.

      Jeez, the rest of us can’t get away with breaking the law by saying, “Oh, sorry, y’Honour, I thought the law was ‘vague’ on XYZ.”

      Can you imagine the judge responding with,

      “Oh, that’s ok then, Mr Macskasy. Run along and I’ll have a chat with the Minister to change the law. Suit you?”

      “Suit me, m’lud.”

      *snort!* :-p

  1. 10 April 2013 at 10:59 pm
  2. 17 April 2013 at 8:15 am
  3. 26 May 2013 at 4:58 pm
  4. 15 August 2014 at 7:28 am
  5. 15 August 2014 at 7:49 am
  6. 19 August 2014 at 8:04 pm

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