Swain Bill: New Powers For Electronic Spying
Peace Researcher has, for many years now, publicised the electronic spying of the NZ Government Communications Security Bureau (GCSB), principally via its civilian telecommunications satellite interception spybase at Waihopai (Marlborough). We have exposed New Zealand’s role, via the GCSB, in the top secret UKUSA Agreement, which dates back to the late 1940s and which divides the world up, for intelligence gathering and sharing purposes, between the electronic spying agencies of the UK, USA, Canada, Australia and NZ (the US National Security Agency – NSA - is the dominant partner). We have publicised the groundbreaking research by the likes of Duncan Campbell and New Zealand’s own Nicky Hager in unearthing Echelon, the code name for a project run through the civilian telecommunications satellite interception spybases of the UKUSA agencies, including Waihopai. Echelon searches the huge volumes of civilian e-mails, phone calls, faxes, etc, etc, to find “key words”, which are then sent undigested to the NSA for its own purposes. This is the driftnet school of spying. PR has followed for years the revelations about the intelligence gathering methods of both the Security Intelligence Service (SIS), NZ’s better known spy agency, and the Police, who play a largely unacknowledged role in political spying. We learned a lot about the bungling modus operandi of both the SISsies and the cops as a result of the cocked up 1996 break-in at the Christchurch home of activist, Aziz Choudry, and subsequent events and court cases. And we have written about the drive by American and British Intelligence agencies and police forces for yet greater spying powers against their own citizens, culminating in the truly draconian Regulation of Investigatory Powers Act, which came into effect in Tony Blair’s Cool Britannia, in 2000.
All of this is now being taken an ominous step further in New Zealand. The legislation is in the public eye now, but it’s been a decade being insidiously prepared by our foreign spymasters, our spies and cops, and the faceless officials keen to do their bidding. Once again the dirty work at the cross roads was uncovered by Nicky Hager, the Babyfaced Assassin of global researchers (Nicky can’t help himself on this stuff. He’s been telling us for years that he’s finished with spies and spybases, that he’s moved on to campaigning for native forests and exposing public relations transnationals, from writing “Secret Power” to writing “Secrets And Lies”. And yet he still keeps digging up these particularly smelly old bones that the dirty dogs of the secret world have buried away). Nicky broke the story in the Sunday Star Times (29/10/00; “A Tangled Web”). He revealed that he had realised that something was up when reading the excellent British magazine, Statewatch (see below for details. Ed.). As a result, he had made a number of Official Information Act (OIA) requests, and had pieced together what was going on behind closed doors. Nicky obviously had better luck than we (Anti-Bases Campaign) did. Quite independently, in the 1990s, we read the same material in Statewatch and also sent in OIA requests to officials and Ministers in the previous unlamented National government. We got nowhere. All the more reason to congratulate Nicky.
The FBI Is Behind It All: A Parallel UKUSA Spy Network
What he discovered was this. The US Federal Bureau of Investigation (FBI) began campaigning for new surveillance laws in the US, in 1991. It published a 1992 report entitled “Law Enforcement Requirements For Surveillance Of Electronic Communications”, which expressed concern that the explosion in new methods of telecommunications made spying harder than before. The FBI produced an updated version of these Requirements, in 1994, and they became the basis for new surveillance legislation signed into law by President Clinton that year. US civil liberties groups have fought that law ever since. Simultaneously, the FBI began pushing for other countries to adopt the 24 point Requirements, in the interests of standardised electronic spying systems (which greatly assists US Intelligence agencies and police forces). In 1993, the FBI organised an international meeting at its Quantico headquarters (near Washington DC) to promote the Requirements. Confidential European Union (EU) papers show that the meeting was attended by representatives of the 15 EU countries, plus Canada, Norway, Hong Kong, Australia and New Zealand. In 1995, the EU governments secretly agreed to adopt the Requirements without any reference to their national parliaments, something which has caused considerable controversy ever since.
The next move was a Memorandum of Understanding to extend the US-EU agreement to the non-EU countries. The group responsible for pushing this through is the bland sounding International Law Enforcement Telecommunications Seminar (ILETS). Founded by the FBI in 1993, its membership is the same 20 countries which first met in Quantico that year. New Zealand has been represented at ILETS meetings, by Police and Intelligence agency staff (for example, in Canberra in 1995 and Ottawa in 1998). EU documents reveal that, by 1996, Australia and Canada had formally supported the International User Requirements (IUR - which are identical to the original FBI Requirements) and that Hong Kong and New Zealand were studying how to do likewise. NZ officials began work in 1997 on legislation to enforce the IUR. The outcome is the proposed legislation currently before Parliament. The Government has denied that there is any connection, but Assistant Police Commissioner Paul Fitzharris did admit, in October 2000, that the “proposed legislative changes would bring New Zealand into conformity with most, if not all, of the International User Requirements” (ibid).
There is one central point to recognise in the international background to this – the core of ILETS is the five countries which comprise the UKUSA Agreement – the US, UK, Canada, Australia and New Zealand. What this system establishes is two parallel spying networks set up by these countries (or, rather, their Intelligence agencies) – Echelon, for international spying, primarily to benefit the US; and ILETS cooperation for coordinated domestic spying on the people within each member country. Once again, a US agency (the FBI) was the driving force behind it.
Mr Swain, You’re A Pain In The Brain
(Actually, we think that he’s a pain in a quite different part of the anatomy, but that doesn’t rhyme). In this country, the front man for this drive is Paul Swain, the Minister of Information Technology and Associate Minister of Justice. Back in July 2000 he announced that he’d instructed his officials to prepare a report on granting the Police extended powers to intercept e-mail (currently they can tap phones, authorised by a High Court warrant, but have no such powers with e-mail). Swain announced that he was in favour of giving the Police those extended powers, by way of an amendment to the Telecommunications Act, bringing NZ into line with the US and Britain. In fact Swain took it a lot further than that, and what emerged, in November 2000, has become popularly known as the Swain Bill.
Its actual title is the Crimes Amendment (No. 6) Bill. The Bill contains clauses outlawing, for the first time, computer hacking. Sounds laudable, doesn’t it? But a Supplementary Order Paper (SOP) to that Bill specifically exempts the Police, and the SIS and GCSB from its provisions. What does that mean?
It means that the Government is giving the Police, SIS and GCSB expanded powers to intercept and spy on New Zealanders’ electronic communications – our e-mail, in other words. A separate Bill, an amendment to the Telecommunications Act, will force Internet Service Providers (ISPs) to cooperate with the spying (this Part Two of the package has yet to be introduced into Parliament). In the usual procedure for governments wishing to sneak in controversial laws, particularly those concerning Intelligence agencies, the Bill and its SOP (number 85, to be exact) were rushed through over the summer holiday period – submissions closed in February 2001.
Governments always claim the worthiest possible motives for every new infringement on their citizens’ civil liberties. This package of Bills and the SOP is no different, being touted as necessary to fight cybercrime, drug dealing, paedophilia, you name it. “The innocent have nothing to fear”, is always the rallying cry. Paul Swain dismissed Nicky Hager’s revelations in the Sunday Star Times: “He goes after the big conspiracy theories, does old Nicky. I think it comes from reading too many spy novels” (Press, 30/10/00). Swain also promised a full public debate before any changes were made – that has been conspicuous by its absence (as usual, in matters of this nature).
And the Swain Bill is not enough for the Police – in February 2001, it was revealed that they lack the technical capacity to tap the Vodafone digital mobile phone network (cellphones with the prefix 021). Telecom (cellphones with the prefix 025) has modified its mobile network to make it interception capable. The Police, according to papers released under the Official Information Act, want a law to make all future phone networks interception capable (at the companies’ expense), but were hopeful that they could negotiate a settlement with Vodafone.
“A Wolf In Sheep’s Clothing”: Greens Oppose The Bill
In Parliament, the Greens were the only party to come out strongly against it. Keith Locke MP said, in a speech in the House (16/11/00):
“This Bill is a wolf in sheep's clothing. The Minister put stress on the Bill as an anti-hacking measure and anti-interception measure and, of course, we support any bill opposed to hacking or interception. In fact, we asked the Minister to put such provisions in a separate Supplementary Order Paper. But those few clauses against hacking and interception amount to about only one page of this 12 page Bill. The rest of the clauses are a major assault on our privacy … Mr Swain said this measure will enable agencies to catch criminals. No one is disputing that we might be able to catch a few more criminals through such interception. Surveillance cameras placed on every street in the country might catch more criminals, but we always have to ask ourselves what is the cost to our privacy. Do we really want to live in a surveillance society? Electronic interception is not just a question of modernising Police and security agencies' powers beyond their present letter opening and telephone tapping, as has been made out. Computer interception is a whole different ball game.
“For example, the Carnivore system that the FBI uses allows for key word searches through vast amounts of e-mail. In Britain they have a system called RIP - very appropriate - where a kind of black box is attached to the servers of Internet providers with the traffic being routed through to M15 (internal security and Intelligence agency. Ed.). There are several problems. The first problem is that the e-mails of many ordinary people will be intercepted by the system just because they accidentally use the wrong key word and their messages will be scrutinised. This has already happened with the Echelon system of which the Waihopai station near Blenheim is a part. Here e-mails and faxes passing through a specific satellite are intercepted through key word searches. Under this SOP the Government Communications Security Bureau, which runs Waihopai, will be allowed to increase its power, including surveillance within New Zealand and not just through that specific satellite. Supposedly, the Government Communications Security Bureau is allowed to spy only on foreigners - foreign people and foreign organisations. According to this Supplementary Order Paper though, if we look at the definition, organisations like Greenpeace or an international trade union federation would fit under this definition of a target. People can say, ‘Well, dissenters aren't a target’, but in New Zealand they already have been. The Security Intelligence Service did target anti-free trade activist, Aziz Choudry, and the Christchurch Police did recently target one of his colleagues, David Small. Both men later won compensation claims in the court against that surveillance. Internationally, the Echelon electronic interception system has been used to spy on Greenpeace.
“…we have already found police abusing their powers when it comes to computers. Just this week the Police Complaints Authority reported on a policeman who accessed a Police database for his own purposes - that is, to track down a tenant who owed him rent. Paul Swain talked about this being somehow compatible with e-commerce. In fact, the Echelon system has been criticised, most recently by an official French parliamentary inquiry, for being used for economic espionage against France by the United States and British multinationals. So this measure will undermine e-commerce and the trust that is necessary for that form of commerce. We also know that the Police do sometimes bow to the Government's will against the dissenters as they did when they moved on pro-Tibet protesters when the Chinese premier visited New Zealand last year (1999). There is great concern about this bill in the Internet community and they do not see there is any need for these measures. They are rightly worried about Police and security agency surveillance because the Internet is a hotbed of dissenting voices - free thinkers challenging orthodoxy, challenging Governments, and challenging the misuse of power. These cyber citizens say: ‘Leave us alone. We're not criminals and you won't be able to use this system to effectively catch criminals. The people who will be caught will be us’. The people who are operating cyberspace, often with dissenting voices, want to be left alone.
“Criminals can easily avoid this sort of interception. They can use code words, they can use encryption devices, they can use temporary Hotmail addresses, they can use re-routers, and they can use unlisted mobile phones. Any criminal worth his salt will get around this system. The people who will be caught will be ordinary people. Earlier this year (2000) the New Zealand Press Association was told by Detective Sergeant Cam Stokes that he knew of no instances when a crime has been plotted using e-mail and said that criminals would be cautious about what they said online. This Bill is not driven by a real need to catch more criminals. It is driven by us listening particularly to the FBI, the British spooks, and our Aussie cousins who are telling the Police and security agencies what they are doing and that we should do it too.
“It is also a problem that the ‘how’ involved in this Bill is not being discussed along with it. The ‘how’, that is the methods that will be used to actually do this interception, will be contained in amendments to the Telecommunications Act, which will not come in until after this Bill has been passed. Until people can discuss the ‘how’ question, the use of the Carnivore system or the Regulation of Investigatory Powers (RIP) system, or whatever the New Zealand agencies are considering, one cannot really understand the danger to privacy involved. So by dividing this discussion into two, one now, and one later next year (2001), we will not have proper democratic discussion. This Bill involves a serious expansion of Police and security agency power. It is a real threat to all New Zealanders. It is not needed. The Green Party is against it. The Green Party will be campaigning on this issue… The Government must prove a case. If the Government wants to extend powers like this, and intrude on people's privacy, it has to advance a case. Where is the case that criminals are using these means to any significant extent that requires such draconian legislation that will so interfere with our privacy? We do not think it is needed. The Green Party will be opposing this bill.
“We are disappointed the Government did not exceed to our request to do two things - firstly to divide the Supplementary Order Paper to separate the anti-hacking and the anti-interception element of it, that we wholeheartedly support, which increases our privacy. The Government should have separated those issues out from the other provision that seriously undermines our privacy - that is giving extra powers to the agencies. Secondly, the Government should have postponed any discussion of these extra interception powers until it has brought in the Telecommunications Amendment Act so that we know exactly how the Police and the security services intend to go about their business in this way. I hope the other parties in this House will support the Greens position. This is not just a Green Party issue. It goes right across the whole community - one can sense that. If one inhabits cyberspace at all, one can see that it is coming from people of different persuasions who do not want their privacy intruded on in this way without any good reason, and the Government has not given a good reason yet”.
Give Them The Old One Two
Both Keith and Nicky have hit one particular nail on the head – the Government is bringing this insidious legislation in as a two part package. The Crimes Amendment Bill (No. 6) and its Supplementary Order Paper (No. 85) simply set the scene, and attempt to obfuscate the issue. The yet to be sighted Telecommunications Amendment Bill will follow it up with the proposed means to do this electronic spying, and the compulsion inflicted on Internet Service Providers (ISPs) to become unwilling collaborators in this covert State surveillance.
The Greens have been true to their word, and campaigned hard on the Swain Bill. For example, for the second consecutive year, both Keith and Party co-leader, Rod Donald MP, played an active role in the January 2001 Waihopai spybase protest (see details elsewhere in this issue. Ed.). Both used their speeches, in Blenheim and at the gates of the base, to launch a campaign of opposition to the Bill. Keith said: “We’re worried that ordinary people will be caught in this system if they use key words. The real criminals will be caught using traditional policing methods. Really, the purpose of these agencies run by the United States is to spy on people who are dissident to the agendas of the multinationals and of the nations who back them. It’s open season on protesters. But I think we all have the right to protest and we all the right to privacy. This system is betraying that” (Press; 22/1/01; “MPs warn against bill: Interception move ‘open season on protesters’”).
Mike Frost, Former Canadian Spy, Opposes The Bill
Opposition also came from overseas, from a man who used to spy for a living, spending over 30 years in Canadian Intelligence. As readers will know, ABC is bringing Mike Frost to New Zealand on a national speaking tour later this year (see flyer enclosed with this issue. Ed.). So we had been in touch with him, but not about domestic details such as the Swain Bill. He found out about that all by himself, and contacted us, unsolicited, to express his great alarm about it. “It scares the hell out of me” (e-mail to ABC; 27/11/00). We asked him to commit his thoughts to paper, and he duly obliged:
“As a Canadian who earned a living for 34 years in the world of electronic espionage and intelligence gathering I have a number of concerns regarding the ‘spook’ legislation proposed by Communications Minister Paul Swain. Without wishing to interfere with New Zealand’s domestic affairs I will try and explain how this legislation has the potential to impact on me as a Canadian citizen who just happens to be a retired spook.
“We all know that the Internet has no borders and does not discriminate between the bad guys and the good guys. Consequently, Canadian international communications, using the Internet and satellites as the methods of transmission, are just as easily intercepted by, for example, the New Zealand Defence Satellite Communications Unit, Blenheim (Waihopai for short), as are the international communications of New Zealand or any other country for that matter. Therefore, any new legislation in your country concerning the Internet has the potential to impact not only New Zealand but other countries as well.
“The Canadian government has a database that contains ‘personal information’ concerning its citizens. It is my opinion that the Government of New Zealand probably has a similar database, I mean why wouldn’t they? The Government of Canada will not acknowledge the existence of this database but I know it does exist because I used to provide input to it. By definition ‘personal information’ includes such things as: name, address, telephone number, age, family status, sex, sexual preference, occupation, medical and health records, dental records, assets, liabilities, income, payment records, driving records, credit card information and history, bank records, criminal records and so on. I think you get the point.
“Most American eavesdropping sites world-wide are equipped with sophisticated listening devices which make the interception of radio and satellite signals a rather simple task. The Waihopai site has been firmly entrenched in your country for years and it’s a safe bet that they have an extensive data base containing ‘personal information’ concerning many, many citizens of New Zealand. This database would probably be available in whole or in part to the government of New Zealand.
“The Cold War is over and priorities have changed. No longer do we have to worry about an arms race with the former Soviet Union. The emphasis has switched to the gathering of economic and industrial intelligence. (Apart from terrorist targets which always have been and always will be at the top of the priority list). The old method of collecting only what was needed has been replaced with a ‘collect it all now and sort later’ technology. With antennas now pointed inwards at ourselves, so to speak, it is inevitable that domestic, private and personal information can and will be intercepted, if not by design then at least by error. By collecting this type of information is our right to privacy being violated? Are governments such as yours and mine guilty of breaking the law? From the spy base at Waihopai is the US guilty of breaking New Zealand law? I don’t know, but if not they are at least guilty of breaking the spirit of the law.
“Are the citizens of New Zealand comfortable with that? Are they aware that the US, as the controlling authority of the five country (UKUSA - United States, United Kingdom, Canada, Australia and New Zealand) Echelon espionage system, can and does routinely collect, on New Zealand soil no less, numerous New Zealand targets of which personal information is only one of many priorities?
“What should concern New Zealanders is that it is only after evaluating, assessing and in some cases editing, would the US make some, never all, of this information available to the Government of New Zealand.
“Do we, and by we I mean the member nations of the Echelon system, want to make it easier and legal for governments to invade our privacy at will?
“It has been claimed that the interception of personal information is necessary in order to assist law enforcement agencies in their quest to catch the bad guys. That may be so, but the scary part is that there are no safety nets in place to protect the innocent people that can and will inevitably fall through the cracks. The question begs to be asked - Is it OK for government agencies to routinely invade the privacy of innocent people in order to catch lawbreakers? This thorny question must be answered by the people, not by a handful of politicians.
“Clearly legislation has not been able to keep up with the rapid growth of wireless communications and electronic technology. Something must be done, but is giving governments and law enforcement agencies an unprecedented increase in invasive and intrusive powers the answer? I don’t think so. What governments must be made to do is legislate strict guidelines as to what can and cannot be intercepted. We the citizens of the free world must be convinced that there is appropriate legislation in place to prevent innocent people from getting caught in the huge trawling net of electronic eavesdropping. To date that protective legislation does not exist. Indeed, the Canadian Minister of National Defense (responsible for our spy agency, the Communications Security Establishment) said some six years ago that we must just ‘trust’ our government when they say they would never, ever invade the privacy of innocent Canadians by intercepting their communications. Well, I have worked at the coalface of Intelligence and I know that such a statement is pure hogwash.
“I know for a fact that spy agencies in the US, the UK, and Canada (and possibly New Zealand and Australia) have either spied on, or have been given material resulting from spying on, the late Princess Diana, Prince Charles, the Pope, the late Mother Teresa, at least two Cabinet Ministers of the Thatcher Government and a former Canadian Prime Minister’s wife just to name a few.
“If people such as these are not immune from being spied on where does that leave common folk such as you and me? A scary thought indeed” (ABC press release; 23/1/01; “Former Canadian Spy Criticises Swain Bill; New Electronic Spying Powers Ripe For Abuse”).
Privacy Commissioner Not Happy About Bill
And opposition came from within the NZ Establishment. In late 2000 the Privacy Commissioner, Bruce Slane, presented the Government with his report on the Crimes Amendment Bill, and he was unsparing in his criticism:
“Plans to give Police and spy agencies the power to hack into computers and intercept electronic communications will lead to unprecedented snooping, the Privacy Commissioner has warned. In a report calling for limitations to be placed on law enforcement bodies, and greater accountability, Bruce Slane opposes the ‘pernicious’ practice of Police hacking into databases. He has recommended that if Police are allowed to hack into personal computers, they should need more than a search warrant…
“Mr Slane reported to the Government on the changes before Christmas, welcoming the clamp-down on unauthorised access to computer systems but questioning whether there would be enough controls on state agencies. ‘It is easy to think of the interception of communications or the accessing of a computer as affecting only the target of Police interest,’ he wrote. ‘However ... many other people [are] affected by interceptions or computer-related searches. Trawling or browsing through a myriad of personal information [would be] authorised on an unprecedented scale. A single interception warrant can, for instance, authorise listening into hundreds of conversations involving scores of individuals beyond the targeted individuals’.
“The new law would clear the SIS to carry out a sting on a database once the agency had an interception warrant. Police would need only a search warrant. Mr Slane did not believe that a search warrant, issued by a justice of the peace, was strong enough. ‘Search warrants are not designed for regulating covert investigations or surveillance,’ he said. ‘Hacking into a person's computer should be, if allowed at all, very much a last resort. ‘Search warrants, unlike interception warrants, do not require the intrusive technique to be used only as a last resort’. Mr Slane said yesterday that the Police should have to obtain an interception warrant from a judge too. Hacking into a computer and intercepting electronic communications was far more intrusive than Police saying, ‘We have got some evidence this guy's got stolen property’.
“The report also calls for the GCSB to be omitted from the exemption clauses until it becomes a statutory body like the SIS. Prime Minister Helen Clark has said the Bureau would be written into law this year. Mr Slane said it should not be given more rights until the public was aware of its accountability and powers. ‘Unlike the SIS, any interceptions which may be carried out are not subject to a statutory warrant process. ‘This will not be put right until the GCSB's establishment is set out in legislation’” (New Zealand Herald; 3/1/01; “Police snooping needs tight rein says report: Electronic surveillance by State agencies worries the Privacy Commissioner, who is calling for limitations on their powers”; Eugene Bingham).
ABC takes partial credit for this call by the Privacy Commissioner for the GCSB to be written into law. When he called for submissions, in the 1990s, on how NZ’s Intelligence agencies should relate to the Privacy Act and its principles, the ABC’s Bob Leonard put in valuable work with him stressing the (literally) lawless nature of the GCSB.
Bruce Slane’s full report is well worth reading. “Crimes against personal privacy and crimes involving computers: Intercepting private communications and accessing computer systems without authorisation. Report by the Privacy Commissioner to the Minister of Justice on Supplementary Order Paper No 85 to the Crimes Amendment Bill (No. 6)”, 13/12/00; which can be found in the “Reports and Submissions” section of the Privacy Commissioner’s Webpage at http://www.privacy.org.nz/slegisf.html
ABC’s Submission Against Bill
ABC was amongst those to make a submission to the Law and Order Select Committee. For the record, here it is:
“The Anti-Bases Campaign has opposed the Government Communications Security Bureau (GCSB) and its Waihopai station actively since 1988, shortly after the construction of the base was announced. This submission deals with the provisions of the proposed Bill and SOP. But it should be read in the context of our total opposition to the very existence of the GCSB, its secretive intrusions into personal privacy and its close ties to the international Intelligence community under the UKUSA Agreement.
“1. GCSB’s Powers Of Interception Should Be Cut, Not Expanded
“The interception powers of the GCSB should not be exempted from Section 216B of the Crimes Act. This Government ‘agency’ owes its existence to the Royal Prerogative, not to the actions of a representative Parliament. To expand its already extensive powers of electronic interception and consequent intrusion into personal privacy is totally unjustified. We understand that this Government intends to bring the GCSB under its own law later in 2001. The Government should not contemplate altering the powers of the agency until and unless that Bill has been duly debated and passed into law. Parliament as a whole has never had oversight over the GCSB or played any role in its creation. It is patently absurd and undemocratic now to ask Parliament to pass a law expanding its interception powers when the existing powers of the GCSB do not exist in written law.
“The GCSB’s methods of interception and covert links to other international Intelligence organisations are known only to the extent that independent research has revealed them (see “Secret Power” by Nicky Hager, 1996). Proposed changes in the Telecommunications Act will presumably cover the expanded methods of interception that would be granted by the Crimes Amendment Bill. The cart is clearly before the horse in this legislative mess.
“We object to the current electronic interception powers of the GCSB, including recording of telephone conversations via satellite, for which no warrants are required from any minister or agency of government. That state of affairs would not be changed by the Crimes Amendment Bill, indeed, it is proposed to expand the scope of the agency’s powers (using interception by as yet unknown methods), again with no reference to any need for interception warrants.
“We note that these concerns are reflected in a recommendation of the Privacy Commissioner in his report to the Minister of Justice on SOP 85 (January 2001):
“’As a prerequisite to granting an exemption for GCSB from the prohibition on use of listening devices, the Bureau should: (a) be placed on a statutory footing; and (b) be subject to a statutory warrant process for the undertaking of any intrusive activity, particularly where that activity would, if performed by any other person, constitute a breach of the law’”.
“2. Foreign Vs Domestic Intelligence
“The GCSB flatly denies that it spies on New Zealanders by intercepting their phone, email and fax messages. But in 1997 when ABC accused the GCSB of listening in on Kiwis who happen to be on one end of an international communication, we met a roadblock. We asked the then GCSB director, Ray Parker, for a definition of ‘domestic intelligence’ but he refused to answer, invoking instead the infamous section 6(a) of the Official Information Act of 1982. He refused to answer on security grounds.
“Why does the GCSB insist that it engages only in the gathering of ‘foreign intelligence’ and then takes cover when confronted with the realistic conclusion that such intelligence gathering must involve spying on New Zealanders as well since they are often on one end of overseas communications? The reason is that the GCSB doesn’t want our citizens to know they are being spied upon at Waihopai. Now we have the Crimes Amendment Bill that would give similar powers of domestic spying to the GCSB [section 305ZFC(2)] by hacking into private computers. No warrant is required for the interception, only Prime Ministerial authorisation and consultation with the Minister of Foreign Affairs and Trade and vague and sweeping ‘reasonable grounds to believe…’. It’s a blank cheque for GCSB personnel. Once a foreign organisation or foreign person has been ‘specified’ as a target for spying (possibly based on earlier interceptions by Waihopai) there are no time limits or any other restraints on the GCSB’s intrusion into the affairs of that organisation or person. And as with the interceptions at Waihopai, such covert computer access would inevitably involve the communications of New Zealand citizens with foreigners.
“3. Can The Spies Be Trusted To Follow The Rules?
“The simple answer is NO, we cannot trust anyone who has powers of covert interception at their command to follow rules unless they are being carefully scrutinised, and even then there is plenty of room for doubt. As the Privacy Commissioner emphasises in his detailed recommendations for ‘enhancing interception safeguards’:
“’…beyond the very limited (although important) involvement of the judiciary there is no independent scrutiny or audit of what actually occurs after the warrant is issued and it is desirable that this gap be filled if the public are to have [confidence] that State surveillance is always conducted according to law. (Note: the word ‘confidence’ was omitted from our draft of the SOP)’.
“The ABC believes the Commissioner’s concerns are well justified. The above quote from the Commissioner’s report was presented in the context of law enforcement agencies. But it applies equally to the authorisation by the Prime Minister of GCSB interception (warrants do not apply to the GCSB).
“The GCSB’s counterpart agency in Canada is the Communications Security Establishment (CSE). Testimony from a former long-serving officer of the CSE, Mike Frost, is highly relevant to the question of ‘trust’ of Intelligence agents.
“’…a lot of communications traffic goes through Ottawa – from Newfoundland to Vancouver. So many times, just for the heck of it, Frost and his colleagues would turn the equipment on and ‘listen in’, plain as day, on anything their electronic gear would catch. Nobody would question it. There was no watchdog. They just did whatever they felt like doing. …they were intruding on the privacy of the people they were supposed to protect’ (from “Spyworld” by Mike Frost and Michel Gratton, Doubleday, 1994, pp. 21-22).
“’…the second part of CSE’s mandate [is] that ‘it deals with foreign intelligence; it allows CSE to intercept and process foreign communications between Canada and other countries….This part of the mandate takes up most of CSE’s resources and is more controversial because its intrusive nature has the potential for violation of the rights and freedoms of Canadians’” (Frost and Gratton, p. 34).
“The GCSB operates within the same Intelligence network as the CSE, in an atmosphere of maximum secrecy... We have every reason to believe that Mike Frost’s descriptions of the day-to-day spying activities in the CSE, without oversight, apply equally to the GCSB. To this day, no government within the UKUSA grouping has ever had any direct oversight role over the actions of its agents. Indeed, it is only in recent years that our elected representatives even knew they existed thanks to a few dedicated researchers and ex-spies of conscience (like Frost) who spilled the beans.
“In 1998/99 New Zealand’s Inspector-General of Intelligence and Security reviewed the rules under which the GCSB conducts its spying. His report (dated 28 April 1999) contained several conclusions in which he approved of the Bureau’s rules and methods of operation, the value of its intelligence activities, its relations with other Intelligence partners, its protection of the privacy of New Zealanders and so on. That report and his Annual Report (22 December 1999) blandly assured New Zealanders that their private communications are not spied upon and that the NZ Government and the GCSB are entirely in control of the interception activities and all of the raw intelligence at Waihopai and Tangimoana. But he does not directly deny that the intelligence reporting systems at Waihopai are automated and directly linked to those of the UKUSA Intelligence partners. He cannot deny that because he is not privy to the inner workings of the system. Nor does he directly deny that the ‘foreign’ satellite communications of New Zealanders are spied upon for the simple reason that they are likely to involve foreigners on the other end of the line. He cannot deny it because such two-way communications, be they by telephone, fax or email, are by definition ‘foreign’ and thus fair game at Waihopai. He never mentions this simple fact in his report but goes on to conclude:
“’I am sure that the GCSB operations have no adverse or improper impact on the privacy or personal security of New Zealand citizens. I am satisfied too, that our Intelligence partners are as concerned about the privacy and security of New Zealand citizens as their own’ (Annual Report, 1998/99, p. 10).
“Mike Frost’s first-hand revelations about domestic spying by the CSE were first published in 1994. The Inspector-General should have read his book.
“In short, we cannot trust the spies. To expand their powers of interception to computer hacking is totally unacceptable. Existing oversight by the Inspector-General is effectively a rubber stamp. Indeed, it is doubtful that any oversight could ever be effective given the impenetrable nature of the international Intelligence community of which the GCSB is a part.
“The Anti-Bases Campaign supports measures contained in the Crimes Amendment Bill to make computer hacking illegal. But exemptions must not be given to the Intelligence agencies and the police. The exemptions should be removed from the Bill.
“Our submission has focused on the GCSB. But our concerns apply to the Security Intelligence Service and the Police as well. The ABC believes that increased powers of surveillance and interception would further erode the fundamental rights of all New Zealanders to engage in research, education and non-violent protest whether or not the Government agrees with them. Exercising these democratic rights must not lead to increased intrusions into privacy based on official suspicions of terrorist or criminal intent. Terrorist and criminals will find it easy to evade the prying eyes and ears of the spies and police. Innocent private citizens will not”.
Another excellent submission is that of GATT
Watchdog, whose best known figure, Aziz Choudry, was the
target of the legendary bungled 1996 break-in by the SIS.
Not surprisingly, GATT Watchdog’s submission concentrates on
the SIS, and on the less well known political intelligence
gathering by the Police, which was brought to light in the
successful damages claim against the Crown by David Small
(who caught the spooks breaking into Aziz’s house, and who
became the subsequent target for Police harassment). This
nicely complements the ABC submission, which concentrates on
If you’d like a copy, contact GATT Watchdog at Box 1905, Christchurch. Ph (03) 3662803; fax (03) 3668035 e-mail: email@example.com
This campaign still has some distance to run. Apart from the Parliamentary submission process, there have been public meetings and protest actions. Meetings have been held in Auckland and Christchurch, with Green MP Keith Locke speaking at both. Also in Christchurch, ABC organised a small but militant lunch time picket of the anonymous SIS office (hidden in a building at 70 Gloucester Street. It’s on the 3rd floor, the only one with no identifying markings, and curtains always drawn). This picket was well covered by local TV news. The mainstream media have picked up the story – the Listener ran a cover story on it (10/3/01; “I Spy”, Bruce Ansley), and TVNZ’s Assignment devoted a programme to it (5/4/01).
The Swain Bill (which is actually a package of measures) represents a dangerous escalation in the powers of both Intelligence agencies and the Police. As such, it is a major further assault on the civil liberties and privacy of all New Zealanders. It follows on from the two 1990s SIS Amendment Acts which gave that agency increased powers, a broader mandate and retrospective legalisation of all its covert break ins. It is part of the package which includes the GCSB Bill, introduced into Parliament in May 2001, accompanied by the glossy propaganda booklet “Securing Our Nation’s Safety”, which glorifies the role of Intelligence agencies in “safeguarding our democracy”. The amendment to the Telecommunications Act is yet to come.
Nor are the spies waiting for the legal right to hack into your computer, including deleting or altering files to cover their tracks. Helen Clark, the Minister In Charge of the SIS, refused to confirm or deny that the SIS is already doing that (which has the potential for the SIS to covertly set up individuals or organisations by planting/deleting/altering material in their files: “For resaons of security I am not prepared to comment further” (NZ Herald, 16/5/01; “Law raises fears of SIS set-ups: Legislation on hacking might let spies do more than just look at your data”, Vernon Small).
This story has still got a long way to go. We will keep you informed.
Britain: From Mad To Worse
Meanwhile, we need to note what is happening in Britain, whose highly draconian 2000 Regulation of Investigatory Powers Act (RIP – what an appropriate acronym) sets the model for what the Government wants in NZ. There, Internet Service Providers (ISPs) are being driven mad by techno-illiterate cops asking “stupid questions” (i.e. “What is a Hotmail account?”) whilst trying to enforce the Act. As one ISP representative said: “At the moment, the big problem ISPs have with the Police is their stupid questions. After a while, it gets expensive and unproductive –it’s a problem. It’s always a problem, and it’s a very serious problem. My children at primary school are better trained on the Internet than the local Police are”. But the RIP Act doesn’t go far enough for the secret British State. An August 2000 report, leaked to the media, revealed plans to force all phone companies and ISPs to record all forms of communications in and out of Britain – phone calls, mobile phone calls, faxes, e-mail, Websites and Internet activity – and store them physically in archives for at least seven years, to be accessed at will by a huge range of Government agencies, namely MI5, MI6, GCHQ (the three Intelligence agencies), Police, Customs and Immigration. The mind boggles and ISPs have already warned that if this comes to pass, they will relocate outside of the UK. Today Britain, tomorrow New Zealand? Not if we have anything to do with it.
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