Submission to the Law and Order Select Committee
Amendments to the Crimes Act 1961 as set out in Supplementary Order Paper no 85
GATT Watchdog opposes the proposed amendments to the Crimes Act 1961 as set out in Supplementary Order Paper no 85. We oppose the expansion of the powers of Police, the NZ Security Intelligence Service (NZSIS), and the Government Communications Security Bureau (GCSB) to hack computers and intercept electronic communications including emails, faxes and pager messages.
We also object to the fact that the amendments to expand these powers are being considered separately – namely – the amendments to the Crimes Act as detailed in the Supplementary Order Paper - and proposed changes to the Telecommunications Act which have yet to go before a select committee. We do not see how this Select Committee can fully consider the implications of the proposed changes without discussing the amendments to the Telecommunications Act, which will cover the methods used to carry out this interception.
1) The basis for GATT Watchdog’s opposition to these amendments is our experience
We opposed previous amendments to the New Zealand Security Intelligence Service legislation and we are one of the two dozen organisations, trade unions and individuals which is calling for a Justice and Electoral Select Committee inquiry to be held into the role of the NZ Police Criminal Intelligence Service in targeting lawful political organisations and individuals.
The December 1998 Court of Appeal ruling in the civil case taken by GATT Watchdog worker Aziz Choudry against the NZSIS led to the previous government passing two legislative amendments in 1999 to further expand that agency’s powers by legalising its entry into private property under warrant.
The April 2000 High Court case taken by Dr David Small, a Canterbury university academic whose home was subjected to an unlawful Police search supposedly for “bomb-making equipment” shortly after an illegal, bungled SIS break-in at Mr Choudry’s house exposed important evidence about the broad mandate which the Police Criminal Intelligence Service (CIS) has granted itself to conduct surveillance and intelligence-gathering operations on dissidents and construct them as potentially dangerous criminals.
Mere suspicion of the possibility of a criminal offence already provides broad scope for CIS surveillance of political dissidents. In his ruling, Justice Young considered the worst aspect of the Small case to be the equation in the mind of some police officers between lawful political dissent and criminal activity. We are also mindful of the fact that Police operations around the peaceful and lawful pro-Tibet demonstrations during the 1999 Jiang Zemin state visit have been strongly criticised by the justice and electoral select committee. This report, published in December 2000, finds that Police did not act impartially towards peaceful demonstrators and indeed denied their rights to freedom of speech.
It should be recalled when considering any expansion of powers for the SIS that this agency was operating illegally between 1977-1999 as it entered private property an unknown number of times – until that power of entry was legislated for prior to APEC in 1999.
Our organisation’s position is, therefore, informed by our experience of state surveillance and harassment. Apparently, governments promoting free market economic agendas feel unable to advance these policies in the face of effective opposition and open debate, and will use the security forces at their disposal to monitor and criminalise those who get in its way. New Zealand is no exception.
Despite a change of government, that orthodoxy – uncritical adherence to the pursuit of free trade and investment - remains in favour. Our involvement in both the Choudry and Small cases also confirms that there are no effective mechanisms of oversight and accountability governing Police intelligence, the Security Intelligence Service and the GCSB, and no avenues of redress, beyond litigation, for victims of such state surveillance and harassment. Even though the proposed amendments to the Crimes Act will greatly expand these agencies’ powers, no new safeguards have been proposed.
These agencies cannot be trusted to distinguish criminal activity from lawful political dissent in the real world. There can be no justification for expanding their powers so they can make the same mistake in cyberspace.
2) New Zealand’s state security and intelligence agencies are not politically neutral
These agencies have always operated to protect, maintain and promote the ideologies of their political masters. Security agencies have interpreted ‘subversion’ to justify spying on movements, organisations and individuals promoting social, political and economic ideas that are constructed as “subversive”. During the Cold War, like their counterparts in other western alliance countries, New Zealand intelligence and security agencies served to protect an ideology which was anti-communist, anti-Soviet, and anti-Third World liberation. After all, successive New Zealand governments viewed former South African President Nelson Mandela and the ANC, as well as a number of East Timorese advocates of independence as “terrorists”.
The SIS conducted an investigation of the anti-Vietnam War movement and the anti-tour movement. Both the SIS and the Police tried to seek out and spy on suspected “communists” in a range of organisations and movements, during the Cold War, like their counterparts overseas.
New Zealand has always obediently played a role (albeit a minor one) in the Western alliance, cooperating with its allies in the USA, Canada, Australia and the UK. There was routine sharing of political and technical information about “subversion” and “counter-subversion” among the security and intelligence of these countries during the Cold War and there is no reason to believe that this has ceased. In the post-Cold War period, these agencies have struggled to justify their own continued existence and budgets by constructing new threats to “security”.
National security is a very flexible and elastic concept. It allows those in power to expand or contract “security” at will in relation to various perceived threats. To our knowledge, New Zealand has the broadest definition of “security” out of the comparable jurisdictions. The SIS Amendment Act (No. 2) 1999 includes foreign or foreign-influenced activities or capabilities that impact on New Zealand’s economic wellbeing or international wellbeing among the list of perceived threats to “national security” for which the NZSIS is mandated to act on domestically.
In countries like New Zealand and Canada, these now include opponents of neo-liberal economic policies, supporters of Indigenous Peoples’ rights to self-determination, and a range of organisations, movements and networks advocating social change.
In the Canadian Security Intelligence Service (CSIS) presentation “The Terrorist Threat to APEC” (29/10/97) which became public during an inquiry into the security crackdown at APEC in Vancouver, “long-standing native issues” and “a collection of ad hoc groups opposed to APEC” were designated as potential security risks. We are sure that the NZSIS and the Police’s CIS take a similar view. From documents released to us under the Official Information Act we know that Police criminal intelligence officers were detailed to spy on the alternative conference on APEC which we helped to organise in Auckland in September 1999.
3) The role of the Internet in political organising for social change
A recent CSIS report “Anti-Globalization – A Spreading Phenomenon” (August 22, 2000) www.csis-scrs.gc.ca/eng/miscdocs/200008e.html strongly advocates an active role for intelligence and security agencies to monitor and manage domestic dissent and international networking among organisations and individuals advocating non-violent social and political change.
The CSIS report focusses on the role of technology in the “anti-globalisation” movement:
“[T]he Internet has had a profound impact – in part by enabling organizers to quickly and easily arrange demonstrations and protests, worldwide if necessary. Individuals and groups now are able to establish dates, share experiences, accept responsibilities, arrange logistics, and initiate a myriad of other taskings that would have been impossible to manage readily and rapidly in the past. International protests and demonstrations can be organized for the same date and time, so that a series of protests take place in concert. The Internet has breathed new life into the anarchist philosophy, permitting communication and coordination without the need for a central source of command, and facilitating coordinated actions with minimal resources and bureaucracy. It has allowed groups and individuals to cement bonds, file email reports of perceived successes, and recruit members.” It concludes: “The Internet will continue to play a large role in the success or failure of globalisation protests and demonstrations. Groups will use the Internet to identify and publicise targets, solicit and encourage support, organize and communicate information and instructions, recruit, raise funds, and as a means of promoting their various individual and collective aims. The Internet remains a major source of protest motivation and planning; it will require careful monitoring by conference planners to determine the intentions and goals of demonstrators, and to forestall unexpected incidents.”
We cite this at length knowing the close relationships between the two jurisdictions, Canada and New Zealand, close connections between the intelligence agencies of both countries, and the fact that when previously considering changes to legislation governing New Zealand intelligence agencies, New Zealand has frequently looked towards aspects of existing Canadian laws.
There is an element of hyperbole in many statements about what the Internet can and cannot do in relation to international movements for social change. News media, state security agencies, and other commentators note the way that the Internet has been used as an organising tool for many campaigns including from anti-WTO, World Bank and IMF mobilisations, opposition to genetic engineering, and campaigns against companies which repress workers’ rights and spoil the environment.
GATT Watchdog views the Internet as just one of a number of tools for effecting change. For organisations such as ours, which operate on a small budget, it is a very cheap way to communicate. However, for many people, especially youth, with access to computers, it has opened up a new forum for discussing ideas, forming opinions, shaping views, and contacting others who share their interests.
4) These amendments will have a “chilling effect” on people’s rights
Admiral Emilio Massera, a member of the first military junta during Argentina’s “Dirty War” of the late 1970s and early 1980s, said: “Some must speak and some must be still, so we can listen to the voices of the just and to the silence of the sinners”.
We are sure that were he here today, Admiral Massera would approve of granting further powers to state security and intelligence agencies. However if this government genuinely believes in the right of open, free and participatory debate it should instead move to rein in the powers of these agencies.
The proposed expanded powers of the SIS, Police and GCSB to hack computers and monitor emails will create a further “chilling effect” on the rights of people to lawful advocacy, protest and dissent. “Being labelled a security threat has its heavy consequences, both to the individual and to society”, writes Canadian historian Larry Hannant (What’s in My File: Reflections of a “Security Threat”; in Whose National Security? Canadian State Surveillance and the Creation of Enemies (eds) Kinsman, Buse & Steedman, Between The Lines, Toronto, 2000).
“The consequences to the individual must … include the pressure to scale back or abandon controversial public activity. People who fear that they are being labelled as security risks must constantly ask themselves whether the benefit of their action is worth the cost. You might call this “identification chill”, like the “libel chill” that affects journalists.” This is not a trivial issue. In a country with a small population like New Zealand, this chilling effect is all the more powerful. One wonders what is the meaning of open, participatory democracy that we are told New Zealand if sections of the community think twice about expressing their views in public or online for fear of becoming “of interest” to the intelligence and security agencies.
5) Lack of Accountability of NZ intelligence agencies
The NZSIS Annual Report to the House of Representatives for the year ended 30 June 2000 reports: “During the reporting period fourteen (14) domestic interception warrants were in force. The average length of time for which those warrants were in force in the reporting period was 158 days…The methods of interception and seizure used were listening devices and the copying of documents”.
The SIS has never admitted to breaking into premises as a method of interception of seizure, even since such a method was legalised in 1999. In the event of their hacking computers or intercepting emails, faxes or pager messages – will they admit to this in their annual report? We think not.
Apologists for the SIS say that their operations are tightly focussed and controlled. Yet 14 domestic warrants and an unspecified number of foreign interception warrants were in force in the year ending 30 June 2000. Each warrant could conceivably target dozens or hundreds of people. An unspecified number of “foreign” interception warrants were in force during this period. The proposed amendments before the committee will mean that even more people will be subject to surveillance by the intelligence and security agencies in this country.
Perhaps the Police and SIS hope that they or their informants won’t need to physically infiltrate organisations as they have tried to do in the past, pretend to be student journalists or filmmakers, make a beeline for the membership list, become instant best friends of people perceived to be protest leaders, or badger people about when the “hard stuff is going to go down” before disappearing again.
Had it been any other government department that had behaved like the SIS, heads would have rolled, someone would have probably fallen on his sword, inquiries would have been held and restructuring would have inevitably followed. The SIS had clearly been lying in its annual reports to Parliament as to its methods while illegally breaking into an unknown number of properties over many years. But the SIS is a sacred cow. When they do something illegal they get rewarded by having their powers expanded.
New Zealand’s state intelligence agencies continue to lead a charmed life. Most parliamentarians appear to lack the political will or gumption to subject them to any serious scrutiny or rein in their powers. The widespread concerns and issues raised by the incidents surrounding the Choudry case about the SIS have never been properly addressed. We believe it is inappropriate and unwise to consider granting even more powers to agencies which have targeted lawful dissenters in the past.
6) Targeting international networking on social justice issues
This amendment proposes changes that
reflect concepts and definitions in other flawed legislation
such as the 1999 amendments to the NZSIS Act. The GCSB may
intercept private communications that are both
“a) private communications of-
(i) a foreign organisation, or foreign person; or
(ii) a representative or agent of a foreign organisation, or foreign person; and
b) private communications that contain, or may reasonably be expected to contain, forerign intelligence”
What we ask do “foreign intelligence”, “foreign organisation” really mean? Is Price Waterhouse a foreign organisation? Shandwicks? An international trade union confederation? The overseas family, friends, and work colleagues of New Zealand citizens or permanent residents An overseas-headquartered network of non-governmental organisations with New Zealand members campaigning for environmental protection or for human rights and independence in West Papua? McDonalds? Rotary? Lions? Who is “ a representative or agent of a foreign organisation”? An Amway salesperson? What is the standard for determining whether private communications “may reasonably be expected to contain” “foreign intelligence”?
GATT Watchdog is a member of an Asia-Pacific wide research network, the Asia Pacific Research Network which is headquartered in Manila, and which has a strong focus on resisting structural adjustment programmes and free trade and building alternatives to this economic model. Will communications to and from their office be monitored, or communications with other kindred organisations? What about individual New Zealanders who are members or supporters of a foreign organisation, society, or charity?
In the course of our day-to-day work, we respond to, or initiate information requests about a range of articles and issues, supply or solicit articles and contact information to and from sister organisations, academics, trade unions, and international media. Again, we ask, what really constitutes a “foreign organisation”, and “foreign intelligence” in the opinion of security and intelligence officers when interpreting these legislative amendments?
It is quite clear that this amendment will expand and legislatively entrench the GCSB’s surveillance of New Zealand citizens and residents if they are communicating with a party overseas and make an even greater mockery of claims that this agency does not spy domestically.
In their operations targeting lawful dissidents, the NZ Security Intelligence Service and the NZ Police Criminal Intelligence Service have shown that they are not too concerned about the law unless they get caught out. It seems reasonable to assume that if the SIS has access to the technology to do so it will monitor incoming and outgoing emails from email addresses with which GATT Watchdog is associated –legally or illegally. We must also assume that our overseas friends and colleagues by dint of their association risk having surveillance by NZ security and intelligence agencies, including the GCSB, and the possibility of information about them being passed on by New Zealand authorities to local intelligence and security agencies, if their political or economic views upset someone in Stout Street or Freyberg House.
This legislation is itself influenced by “foreign” organisations and persons. It is in large part motivated by a US desire to standardise and synchronise global methods and capabilities for intercepting electronic communications to assist its own intelligence operations. It is no coincidence that this, and proposed amendments to the Telecommunications Act (requiring Internet Service Providers and telephone companies to fit equipment and software to make their systems interception capable) follow on from similar legislative changes in the USA and the UK.
The Police has not made a strong case for the expansion of their powers under the proposed amendments. Indeed, Detective Sergeant Cam Stokes told the NZ Press Association last year that he knew of no instances where a crime had been plotted using email and said criminals would be cautious about what they said online (Sunday Star-Times, A tangled web, 29 October 2000).
Associate Justice Minister Paul Swain, in support of these amendments, says that “law-abiding citizens have nothing to fear”. History suggests otherwise. Such glib assurances whether spoken in the House, to the media, or entrenched in a legislative clause are meaningless. In 1996 critics of the expansion of the definition of national security in the SIS Amendment legislation passed that year were derided as “naïve and paranoid”. Less than two weeks after a legislative amendment which gave an assurance that the SIS had no power to engage in surveillance of lawful political dissent, the SIS broke into Mr Choudry’s house. Many other draconian pieces of legislation have been introduced on the premise of fighting crime, but have soon been applied on a generalised basis to limit still further the rights and liberties of ordinary citizens.
7) Carte Blanche for “fishing expeditions”
Our submission will not examine the technological and technical questions and the serious personal privacy concerns arising from this proposal. However we draw your attention to the following:
Privacy Commissioner Bruce Slane stated in his recent report to the Minister of Justice on SOP No 85:
“Trawling or browsing through a myriad of personal information is being authorised in an unprecedented scale. A single interception warrant can, for instance, involve authorised listening into hundreds of conversations involving scores of individuals beyond the targeted individuals”.
Such surveillance will not be anything other than a fishing expedition with a net cast very wide, trawling for key words in messages or target email addresses. Email is split into many data packets and it would be very difficult to target specific messages without vacuuming up lots of others, says Peter Dengate Thrush, Internet Society chairman (New Zealand Herald, Cyber-cops set bells ringing 29/7/00).
8) Conflict with International Human Rights Instruments
We remind the Select Committee of the following:
UN Declaration of Human
Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attack.
Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20: Everyone has the right to freedom of peaceful assembly and association. No one may be compelled to belong to an association.
These rights are reiterated in other international human rights instruments like the International Covenant on Civil and Political Rights.
This proposal will further restrict and/or deny these rights for many New Zealanders and New Zealand organisations like GATT Watchdog which oppose the free market, free trade policies of successive New Zealand governments and which play an active role internationally in a debate and movement against the global free market agenda.
9) Carte Blanche For Dirty Tricks
Again we ask - what safeguards does this amendment propose? Who are its real targets? What redress will there be for groups or individuals who are wrongly targetted by the Police, SIS, GCSB hacking into our computers and intercepting our emails, faxes and message pagers? What rights will an organisation or Mr Swain’s “law-abiding citizens” have if they can prove that their computers have been hacked and their emails interfered with, that personal information obtained in this way has been used against them by the Police or the NZSIS? Or if they open their personal or office computer or click on their website to find that an overzealous SIS or Police intelligence officer has loaded their PC, or replaced their website’s contents, with bomb-making recipes or child pornography files? None.
Our experience with the SIS and the Police has led many people to suspect that one or both agencies were implicated in an attempt to smear our organisation’s name, individuals associated with it, and the opposition to APEC and free trade and investment, by placing a sophisticated hoax bomb device outside the Christchurch City Council offices.a few days after the SIS burglary. This proposed expansion of Police and NZSIS powers will afford these agencies – or individual officers working for them – far greater scope to fabricate evidence against target organisations or persons.
Our efforts to seek justice exposed the fallacy of the supposed mechanisms of oversight into the Police, the SIS the GCSB. They do not exist. The Inspector-General of Intelligence and Security is a toothless tiger. The Police Complaints Authority has no genuine independence from the Police. In the real world SIS agents sometimes get caught, and police attempts to plant evidence sometimes get exposed. In cyberspace there will be nothing that anyone can do about such abuses as they are unlikely to be detected.
This Government must not preside over yet another expansion of the powers of New Zealand security and intelligence agencies and conveniently ignore widely-held concerns about the role of such agencies.
GATT Watchdog recommends that the Select Committee:
Does not approve these proposed amendments to the Crimes Act
Scrutinises proposed changes to the Telecommunications Act on this matter before writing its report
Supports calls for the Justice and Electoral Select committee to hold an inquiry into the role of the Police Criminal Intelligence Service in targetting lawful political organisations and individuals
Calls for a full and open public inquiry into the role and operations of the NZSIS and the GCSB
11) About GATT Watchdog
GATT Watchdog was formed in 1990 by several New Zealand non-governmental organisations (NGOs) and community groups to monitor and analyse the national and international implications of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) which established the World Trade Organisation (WTO). It has also campaigned against the Multilateral Agreement on Investment (MAI), the Asia-Pacific Economic Cooperation (APEC) forum, and other bilateral and regional initiatives promoting a neoliberal model of economic development. Its primary activities are analysis, information and education campaigns, organising public fora on free trade and investment issues, and networking with a wide range of national and international organisations on these issues.