Home > The Body Politic > The GCSB law – vague or crystal clear?

The GCSB law – vague or crystal clear?

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GCSB logo

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The Inspector-General of Intelligence and Security, Paul Neazor, has released his report and three problems arise immediatly.

1.

According to a TV3 report,

“While the Government has been cleared of privacy breaches, the report found the law is “unclear” and the Inspector-General of Intelligence and Security, Paul Neazor, has recommended improving the Act and the “precision” of their paperwork.”

Acknowledgment: TV3 – GCSB cleared of wrongdoing in NZ cases

That comment above was not from Mr Neazor’s report. It was a paraphrase by GCSB Director Ian Fletcher.
The actual report has not been released – National refuses point-blank to make it public.

The TV3 report continued with this,

“There are two recommendations from the Inspector-General, which are for more precise legislation and some improvement in the precision of the GCSB’s paperwork, the latter relating to the recommendations in the GCSB Compliance Review,” says the GCSB Director Ian Fletcher.

Mr Neazor found that there are particular “uncertainties” surrounding meta-data.

“An example of metadata is the information on a telephone bill such as the time and duration of a phone call, but not the content of the conversation or identification of the people using the phone,” Mr Fletcher said.

Acknowledgment: IBID

The NZ Herald reported,

“Inspector-General of Intelligence and Security Paul Neazor has cleared the Government Communications Security Bureau (GCSB) of illegal spying on New Zealanders.”

The Herald story goes on,

“The Inspector-General formed a view that there have been no breaches, although the law is unclear and the Inspector-General recommends amending it”, GCSB Director, Ian Fletcher said in a statement.

Mr Fletcher says the Inspector-General found that all of the cases were based on serious issues including potential weapons of mass destruction development, people smuggling, foreign espionage in New Zealand and drug smuggling.

Acknowledgment: IBID

From the Dominion Post,

The Government Communications Security Bureau (GCSB) “arguably” did not break the law in the cases of 88 Kiwis, the spy agencies watchdog says.

Inspector-General of Intelligence and Security Paul Neazor investigated after an internal review found the foreign spy agency may have have unlawfully spied on New Zealanders.

After the report, the Government moved to change the law to make it legal for the bureau to conduct surveillance on Kiwis on behalf of the police, the Defence Force and the Security and Intelligence Service (SIS).

The bureau has not released Neazor’s findings, instead issuing a statement.

Acknowledgment: Dominion Post – GCSB ‘arguably’ didn’t break law – Neazor

The Dompost report continued with this comment,

“The Inspector-General is of the view that there were arguably no breaches and the law is unclear,” the bureau said.

And this,

Neazor had decided “there had arguably been no breach, noting once again that the law is unclear”.

Acknowledgment: IBID

And TVNZ gave us this,

The Government’s spy agency, the GCSB, has been cleared of illegal surveillance in cases involving 88 New Zealanders.

[…]

“The Inspector-General formed a view that there have been no breaches, although the law is unclear and the Inspector-General recommends amending it,” GCSB Director Ian Fletcher said in a statement.

“There are two recommendations from the Inspector-General, which are for more precise legislation and some improvement in the precision of the GCSB’s paperwork, the latter relating to the recommendations in the GCSB Compliance Review.”

Acknowledgment: GCSB cleared of illegal spying, though law ‘unclear’

The TVNZ report further stated,

Neazor said the interpretation of this kind of information in the GCSB Act is one of the unclear areas that needs defining.

Acknowledgment: IBID

Every comment on Neazor’s report emanates from the GCSB itself.

At no point was there any commentary from Neazor himself, and nor is his report publicly available. The Dominion Post’s statement that “the Inspector-General is of the view…” is not supported by any facts or evidence that I can see.

Effectively, Neazor has been gagged.

Only John Key and GCSB Director Ian Fletcher are issuing statements – a politician and a spy boss hired by the same politician.

The truly frightening thing? The media is not reporting on this curious anomaly.

National will be passing a law increasing the powers of the GCSB, to permit it to spy on New Zealanders. Until now, the law has been crytal clear on this issue; the GCSB is not permitted to spy on New Zealand citizens and residents.

2.

Another curious aspect to this problem? The constant, repeated meme  that the Government Communications Security Bureau Act 2003 is somehow ‘vague’ and ‘unclear’.

I present to the reader the relevant parts of the GCSB  Act. Judge for yourself how clear or unclear the law is yourself;

Section 14 of the Government Communications Security Bureau Act 2003 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.

Furthermore, 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.

Three questions arise,

1. Is the Act really as ‘unclear’ and ‘vague’ as Ian Fletcher, John Key, and (supposedly) Paul Neazor claim?

2. Has the media checked the relevant legislation?

3. Is there a concerted, surreptitious  effort to depict the GCSB Act as “deficient”, so as to increase it’s surveillance powers?

I leave the reader to come to his/her own conclusions.

But one thing is abundantly clear; we are not being given the full truth on this issue, and the facts surrounding the law regarding the GCSB, are being fudged.

3.

John Key refuses to release Neazor’s report to the public.

Why?

If the report fully vindicates Key and National, then he would be climbing over dead bodies to get it to the media and public attention.

His decision to keep the report secret implies that it contains details which are critical of National and/or Key’s management of this entire affair.

Let’s not forget a recent report from the Auditor General on Key’s dealings with  Skycity. Key claimed that the Auditor General’s report  “cleared him”;

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Key insists government vindicated

Acknowledgment: MSN News -Key insists government vindicated

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The Deputy Auditor-General Phillippa Smith, though, was quick to challenge Key’s assertion that he had been “vindicated”,

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PM contradicted on SkyCity 'vindication'

Acknowledgment: TV3 – PM contradicted on SkyCity ‘vindication’

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The Prime Minister long ago lost the trust of many New Zealanders. His willingness to bend the truth – and on occassion tell outright lies – means we cannot take anything he says at face value.

If Neazor’s report vindicates National, then Key should have no reason to with-hold it from the public.

The fact that he is keeping it secret suggests that the report contains findings which are  damning of Key, his government, and god knows who else.

There can be no other conclusion.

As for the mainstream media, their lack of deeper probing on this issue is an indictment on the state of investigative journalism (or lack thereof) in the country.

Even something as basic as informing New Zealanders of the content of the Government Communications Security Bureau Act 2003 has been lacking. Without this most basic of information, the media is derelict in it’s duty to inform us.

We expect politicians to be lying pricks.

We expect better from our news rooms.

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Previous Related blogpost

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

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= fs =

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  1. 22 May 2013 at 11:23 am

    EXCELLENT post Frank. Have some developments on this front. Will be in touch! Good on you. Cheers! Penny Bright

    • 22 May 2013 at 12:05 pm

      Thanks, Penny. Look forward to anything you have to share with us!

  2. mcclairy
    22 May 2013 at 12:18 pm

    Obfuscation, right hand not knowing what the left hand is doing, in fact no one knows what they are bloody well doing ! This whole debacle brings into question our Constitution and The Bill of Rights……the right to peaceful protest/dissent, right of association, freedom of movement – all within the law, all of which have served NZ well over the years. If a situation turns ugly it is usually the fault of the “law” enforcers who break the law.
    How many times must it be said we have adequate law enforcement with the SIS and the police……what don’t they understand that GCSB is overkill and is just a pretty silly acronym for justifying the Waihopai Domes and its echelon spy system assisting the US/UK/NATO in carrying out their killing-fields, their dirty, insane wars. I think we have a government who is in the process of climbing back into bed with Uncle Sam militarily – shock horror. I thought our anti-nuke stance educated New Zealanders re the insanity of war mongering in a nuclear age,or any age for that matter. This is Key doing the dirty work for his bosses in Washington and suffering from delusions of grandeur, thinking no doubt he is their big Kahuna in the South Pacific. Step 1 Challenge Simon Bridges law preventing New Zealanders the right to peaceful protest on the high seas, another debacle as if Greenpeace can do any harm bobbing around in wee runabouts against those huge vessels. It is about educating the public against the dangers of deep sea drilling for heavens sake. How the hell are we going to stop this government and its creeping police state actions ? Mad as !!!
    Love your reasoning Frank, nicely thought through, rational and sane as always.

  3. 22 May 2013 at 12:27 pm

    The missing point here is that if it’s “arguably legal”, it’s also arguably illegal. Lawyers use words with great precision.

    • Ovicula
      22 May 2013 at 12:41 pm

      “Arguably legal” is actually very weak. They are two weasel words which say that a case could be made. I read them as meaning that after desperate legal contortions and the suspension of disbelief, you could accept that the actions were legal. This is the legal and ethical standard of corporate raiders, not of a democratic government.

  4. fremo
    23 May 2013 at 9:43 pm

    If its arguably legal,
    lets see KEY argue it.
    in a court of LAW.

    The Privacy Commissioner advises review of security law[s] should take up to three years.Not three months under urgency; three years in a democracy to properly assess security law checks and balance .

  1. 23 May 2013 at 8:36 am
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