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

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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.”

Acknowledgement:  TV3 – GCSB to undergo major overhaul

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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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?

This blogpost was first published on The Daily Blog on 22 May 2013.

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