Wednesday, 26 June 2013

GCSB Redux

I really wish that the Law Society's submission on the GCSB bill had been available prior to the submissions deadline. I suspect that I'm not the only one who failed to submit on the Bill because the precise changes from the status quo ex ante, and whether the changes were from the de facto or the de jure status quo, were, to a non-lawyer, sufficiently impenetrable to require several days' effort to decipher.

The Law Society instead makes it all nicely explicit for us. We are transforming a foreign intelligence agency into a domestic intelligence agency with minimal effective supervision. That's what it had looked like, but I sure wasn't qualified to say so. And so I didn't submit.

The Law Society notes that the Telecommunications Interception Capability and Security Bill violates basic rights to natural justice at common law because too low a threshold is established for the Courts to be able to prevent defendants from hearing evidence against them.

Their statement on the GCSB Bill is blunter than I'd expected. A few excerpts:
The Bill is intrusive. It would empower the GCSB to spy on New Zealand citizens and residents, and to provide intelligence to other government agencies in respect of those persons. It is inconsistent with the rights to freedom of expression and freedom from unreasonable search or seizure under NZBORA and with privacy interests recognised by New Zealand law.

Given the intrusive nature of the reforms and the fact that they prima facie conflict with established rights, they should be demonstrably justifiable, and be accompanied by appropriate safeguards. The Law Society has sought to undertake a proportionality analysis of the legislation to ascertain whether the intrusion on rights protected by NZBORA as a result of these measures is justified, and whether there are sufficient checks and balances on the powers the Bill proposes.

It is difficult to identify the pressing and substantial concerns that the Bill purports to remedy or address. It is not possible to identify any tangible or meaningful concerns from the Explanatory Note to the Bill and the accompanying ministerial press release, beyond an allusion to helping the GCSB “get on with the job of helping New Zealand public and private sector entities deal with the growing threat of cyber-attack”
David Farrar suggests that, if the GCSB legislation fails, we'll just have the Police enhancing their wiretapping capabilities when it has a warrant to engage in such things. But the Law Society notes:
Furthermore, it would appear that if the GCSB is called upon to assist another specified agency (such as the Police) by performing activities instead of that other agency, the activities performed by the GCSB in that capacity will receive the imprimatur and secrecy and immunity protections of the GCSB Act, when the same activities engaged in by the specified other agency itself would not do so in terms of the other agency’s empowering legislation. In that way, enlistment of GCSB “co-operation” may confer on the activities undertaken a protected legal status which they would not otherwise receive. Indeed, the very fact of GCSB involvement may mean that the activity in question is never disclosed to those affected. This outcome is unacceptable and inconsistent with the rule of law.
I far prefer the Police doing this kind of job under warrant. I like warrants. Again, here's the Law Society:
Indeed, the section 16 power to intercept without warrant or authorisation can no longer be
justified, given the greatly expanded scope of this warrantless power (having regard to the expansive definition of “information infrastructure” and the expanded scope of operations beyond “foreign intelligence”, canvassed above so that domestic as well as foreign intelligence is to be targeted by the GCSB). This power must now be considered as overly invasive of NZBORA rights, and/or as a disproportionate conferral of power, given the available alternatives (including the range of powers of interception already possessed by the New Zealand Security Intelligence Service and others).
Had this analysis been publicly available earlier on, and it likely would have been but for the Government's incomprehensible desire to push this through under urgency and thereby prevent public debate, I would have submitted in opposition to the Bill. I wouldn't have done it with my economist hat on, because I can't quantify any of this. It would be my Mont Pelerin Civil Rights Libertarian hat instead, though informed by the economist side.

I would have taken the Law Society's analysis as baseline, then noted that New Zealand's main apparent economic comparative advantage is in having a robust policy environment that weighs heavily the civil rights of its citizens and residents. That we're a bastion of sanity where policy doesn't over-react to perceived security threats. That we're the place that very sensibly adopted the only realistically effective airport security precaution subsequent to an attempted hijacking by a deranged woman: harden the cockpit doors against entry. We haven't gone for American airport security theatre. We haven't started having roadside checkpoints where people are commanded to present their papers and prove that they're not in the country illegally. And that this comparative advantage matters all the more as America and the UK get worse: the Outside of the Asylum is more attractive when the Inside of the Asylum gets that much nuttier.

Imagine an alternative world where, as America started seeing just what the NSA has been doing to them, we were instead implementing the kind of digital rights amendment suggested by Fab Rojas for the States:
The right of the people to be secure in their transactions made through electronic media and other forms of communication,  and in the data generated by such transactions, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The people will retain the right to review such warrants and challenge them in the courts.
The US and OECD have been cracking down on so-called tax-havens; would that New Zealand could be excoriated by the Surveillance States as a rights-haven: a little dark blot on their surveillance maps where you have to get a real warrant from a real judge to be able to wiretap people, and to prove that there's a damned good reason for it. And be a place of refuge for those few who care enough about those kinds of freedoms to vote with their feet.

I wonder what the tech scene here could look like, in a decade's time, if some of the folks in Silicon Valley who do care about these things saw New Zealand as safe haven.

Peter Cresswell points to what we need to do to start protecting ourselves, if we're to be inside the asylum.

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