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Dear Michael Cullen: the GCSB is not International Rescue!

18 March 2016 Frank Macskasy Leave a comment Go to comments

TB5

1.

When a spokesperson for the government tries to employ scare-tactics to persuade the public that increasing surveillance powers for various arms of the State – in this case the Government Communications Security Bureau (GCSB) – is warranted, then suspicions arise.

In the week following the release of the first review of intelligence organisations in New Zealand, Michael Cullen offered no less than three scare-tactics, that on the face of it, should send children and the naive running into the arms of spymasters at the SIS and GCSB.

On 10 March, Kathryn Ryan interviewed Michael Cullen on Radio NZ’s ‘Nine to Noon‘ show. Cullen was one of the reviewers of our spy agencies. In reply to questioning why the GCSB needed increased powers, he said;

@ 10.04

“…Suppose, let’s take an example, you know that a Chinese agent is arriving on a plane at an airport, for whatever reason you also know that they’re only going to be here for a short time but you’ve no idea what it is they’re going to be up to, and you can’t find a judicial commissioner, you know you’re only half an hour out from a landing kind of thing…”

@ 10.34

“…In extreme circumstances where you can’t find the Attorney General, or the the Minister deputed [sic] by the Prime Minister [to] act on the Attorney General’s behalf, or the judicial commissioner, then the Director can issue a warrant, but that’s in the case of immediate threat to life or the fact that if it doesn’t happen quickly then the opportunity to gather that intelligence will have passed…”

Aside from a “Yellow Peril” hint to Cullen’s reference to “a Chinese agent”, one has to ask why he is suggesting that the imminent arrival of such a person would strike fear into the heart of our government and it’s agencies.

Did the announcement that we are at war with China miss the 6PM news bulletin on both TV1 and TV3?

If such a mythical “Chinese agent” is a “threat” to our security and well-being, then a simple phone call to New Zealand Customs should be sufficient to detain the person and return him/her home on the next available flight. NZ Customs already has this power, as Mario Quintela learned to his misfortune last February;

Portuguese tourist gifted free flight to NZ after immigration debacle

Not only was Mr Quintela detained after disembarking his flight; he was held for ten hours, and promptly deported thereafter. (As the story reports, Customs then had to pay for Mr Quintela‘s flight back to New Zealand.)

So why the “imminent arrival” of a foreign agent should send the GCSB or other state agency into a tizzy is unclear. Our Customs department already ‘has our backs’ on such matters.

Cullen then painted a frightening picture where “in extreme circumstances where you can’t find the Attorney General, or the the Minister deputed by the Prime Minister [to] act on the Attorney General’s behalf or the judicial commissioner”.

Really? In the 21st century, with mobile phones, smartphones, email, faxes, landlines – Cullen is deeply concerned “where you can’t find the Attorney General, or the the Minister deputed [sic] by the Prime Minister [to] act on the Attorney General’s behalf, or the judicial commissioner“?!

If such an unlikely scenario ever eventuated, my concern would not be for the GCSB unable to have a warrant-to-surveil signed – but where the hell our Attorney General, or the the Minister deputed [sic] by the Prime Minister [to] act on the Attorney General’s behalf, or the judicial commissioner” were, that they could not be easily located.

Perhaps the most disingenuous, anxiety-laden scenario from Cullen was his implausible Lost At Sea fantasy. On Radio NZ’s Focus on Politics, Cullen maintained that expanding the GCSB’s surveillance powers was a “safety” issue;

@ 2.30

“Let us suppose a New Zealander is in imminent danger, in terms of their life overseas. Maybe lost at sea or some other example. Under this legislation as the GCSB feels it has to interpret it, the GCSB’s capacity to trace an individual’s cellphone and to say exactly where it is, cannot be used.

We have no way of finding out where that person is, using that capacity, in order to take immediate and urgent action, in whatever way, to try to protect the safety of that New Zealander.”

I call total bollocks on Cullen’s example.

Aside from the fact that most yachties and other vessels now use modern emergency locator beacons, if a New Zealander is in “imminent danger”, a bunch of spooks sitting in Pipitea House, Thorndon, listening in on conversations and reading emails and txt-messages are hardly likely to be in a position to facilitate rescue operations to assist a person “ lost at sea “.

Checking Google, using the search parameters “spy agency locates lost person at sea” did not yield a single example of a spy agency finding anyone in such dire straits.

The GCSB is a spy agency. International Rescue, it is not.

If by some bizarre chance the GCSB did pick up an SOS call, or locator beacon, no person in their right mind would object if the information was passed on to rescue services. By definition, SOS calls cannot be considered “private communications” since they are broadcast far and wide to anyone capable of picking up the transmissions.

Cullen is fear-mongering.

2.

In the report, Intelligence and Security in a Free Society Report of the First Independent Review of Intelligence and Security in New Zealand, under a section headed “Key Issues Identified“, the authors write;

7. It quickly became apparent to us that there were a number of deficiencies in the Agencies’ current legislative frameworks. The legislation establishing the Agencies is not comprehensive, is inconsistent between the two agencies, can be difficult to interpret and has not kept pace with the changing technological environment. This has led to some significant problems.

8. First, lack of clarity in the legislation means the Agencies and their oversight bodies are at times uncertain about what the law does and does not permit, which makes it difficult to ensure compliance. Critical reviews in the past have led the Agencies, particularly the GCSB, to take a very conservative approach to interpreting their legislation. While we understand the reason for this, and it is certainly preferable to a disregard for the law, this overly cautious approach does mean that the GCSB is not as effective or as efficient as it could be. The legislation needs to set out clearly what the Agencies can do, in what circumstances and subject to what protections for individuals.

It appears that Cullen and his co-author, Dame Patsy Reddy, are repeating the very same justifications that Key and other National ministers spouted in 2013, when they implemented an expansion of GCSB’s powers to legalise Bureau surveillance of New Zealanders.

Michael Cullen and Report co-author Patsy Reddy (Radio NZ)

On 9 April 2013, our esteemed Dear Leader claimed that the GCSB – as it stood at the time – was not “fit for purpose”;

“In addition, the Act governing the GCSB is not fit for purpose and probably never has been. It was not until this review was undertaken that the extent of this inadequacy was known…

[…]

The advice we have recently received from the Solicitor-General is that there are difficulties interpreting the legislation and there is a risk some longstanding practices of providing assistance to other agencies would not be found to be lawful.

[…]

It is absolutely critical the GCSB has a clear legal framework to operate within.”

Now it appears that Cullen and Reddy are parroting the same rationale for advancing the “need” to expand the Bureau’s surveillance powers.

This appears to be the stock-standard meme that will be trotted out every time the government pushes for further extensions to State surveillance powers.

Council for Civil Liberties, chairperson, Thomas Beagle, was correct when he pointed out the obvious “mission creep” of stealthily increasing State surveillance in this country;

“I think it’s part of a shift towards an overall surveillance society and I think it’s part of a wider shift towards a government which is not of the people but a government which is actually working on the people.”

Cullen and Reddy have played their part in this latest chapter of an on-going process.

What next in two, five, or ten years’ time?

References

Parliament: Intelligence and Security in a Free Society Report of the First Independent Review of Intelligence and Security in New Zealand

Radio NZ: Nine To Noon – Spy law shake-up, heightened protection or erosion of privacy? (alt. link)

TVNZ News: Portuguese tourist gifted free flight to NZ after immigration debacle

Radio NZ: Focus on Politics – 11 March 2016 (alt. link)

Beehive: PM releases report into GCSB compliance

Radio NZ: Spy review aims to clarify powers

Additional

Radio NZ: Canada stops sharing Five Eyes data

The Guardian: Canada spy agency stops sharing intelligence with international partners