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Report: Review of Compliance at the GCSB

[Full report (PDF): Review_of_Compliance__final_22_March_2013.pdf]

Review of Compliance at the Government Communications Security Bureau

Rebecca Kitteridge, March 2013

Executive summary

1. The Government Communications Security Bureau (GCSB) plays a vital role in New Zealand’s security by obtaining, providing and protecting sensitive information. The time I have spent within GCSB has left me in no doubt that New Zealand needs this organisation now more than ever. The increasing threat of cyber attacks and the protective role GCSB plays is one part of this story, but GCSB does a wide range of other things that are essential to the well-being of New Zealand.

2. It is, however, vital that an organisation that exercises intrusive powers of the state does so in a way that is entirely lawful. Where a state organisation’s internal operations must necessarily remain secret, because of their sensitivity, there need to be robust internal systems and effective external oversight so that the public can be confident in the lawfulness of those operations.

3. Concerns were raised about legal compliance within GCSB as a result of events involving Mr Kim Dotcom. I was seconded to GCSB to carry out a review of compliance systems and processes at GCSB, commencing on 2 October 2012. The review took six months. In the course of this review, I focused on two main areas:

a. supporting the Director of GCSB to ensure that all of GCSB’s activities were lawful, and in particular activities that the Director had directed be stopped at the end of September 2012, before they could be considered for resumption; and

b. reviewing GCSB’s compliance framework.

4. The Director was concerned to ensure that no other errors had occurred that were similar to that concerning Mr Dotcom. The Director’s concern led to a number of other instances, in which GCSB had assisted domestic law enforcement agencies between 1 January 2009 and 26 September 2012, being referred to the Inspector-General of Intelligence and Security for review. Those cases were subsequently found to be lawful.

5. The review of activities that had stopped (involving assistance to other domestic agencies) led the Bureau to seek legal advice from the Crown Law Office on a number of issues. In relation to some assistance that GCSB has provided to the New Zealand Security Intelligence Service and (more rarely) the Police since before the enactment of the GCSB Act 2003, the Solicitor-General confirmed the difficulties in interpreting the GCSB Act and the risk of an adverse outcome if a Court were to consider the basis of that assistance. All relevant instances of assistance (concerning 88 individuals in total), dating between 1 April 2003 and 26 September 2012, have been identified and a report has been provided to the Minister Responsible for the GCSB, in parallel with this report, so that he can determine the appropriate action to be taken.

6. I conclude, in relation to this and other legal issues, and to ensure that GCSB can carry out its work in the future with a clear understanding of the law, that legislative clarification would be desirable.

7. The second limb of my review involved considering GCSB’s compliance against a standard compliance model, involving the following cycle of activity:

a. assessing and identifying legal compliance obligations;

b. supporting compliant behaviour and preventing non-compliance (including internal guidance, procedures, internal audit, and external oversight);

c. responding to non-compliant behaviour;

d. external reporting;

e. measuring; and

f. improving.

8. Part I of this report sets out my analysis of GCSB’s compliance activity against this standard compliance model. In all these areas of compliance significant opportunities for improvement are identified. I also recommend that external oversight of GCSB be strengthened.

9. In the course of this work I concluded that the issues identified in relation to compliance were symptomatic of underlying problems within GCSB, concerning GCSB’s structure, management of its information, capability and capacity. Those issues are addressed in Part II of this report.

10. A consolidated table of recommendations is attached at Appendix 1. If implemented, the changes I recommend will constitute a considerable change programme, which in my view will take more than one year to complete. It is important to note that my report represents a snapshot in time, and that a number of recommended changes have already been made or are in train.

11. Throughout my time at GCSB the staff with whom I spoke consistently expressed their commitment to the rule of law. It is my strong belief that when GCSB has addressed the issues raised in this report, it will not only be an organisation that continues to provide great public value, but also an institution in which the public can have trust and confidence.

Rebecca Kitteridge 22 March 2013

[Full report (PDF): Review_of_Compliance__final_22_March_2013.pdf]

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