Labour and GCSB

April 15th, 2013 at 10:00 am by David Farrar

There’s some very interesting questions about the passing of the Act in 2003, and whether Labour lied to New Zealanders about what the Act would do, or if they told the truth and allowed the to break the law.

Grant Robertson was Clark’s second most senior advisor, so he may be able to assist!

The GCSB was created in 1977. From the beginning its role has been focused on foreign intelligence, but we have been told that for some decades it has also assisted other agencies ( and Police) with communications intercepts when those agencies have gained warrants authorising them to do so.

In May 2001, Helen Clark introduced the GCSB Bill to give the GCSB legislative backing. Helen Clark said:

In the absence of a legislative framework for GCSB, for example, some have wrongly inferred that the Bureau’s signals intelligence operations target the communications of New Zealand citizens; that the GCSB exists only as an extension of much larger overseas signals intelligence agencies; and that the Bureau’s operations are beyond the scope of Parliamentary scrutiny.

For the record, I reiterate again today that the GCSB does not set out to intercept the communications of New Zealand citizens or permanent residents. Furthermore, reports of the Inspector-General of Intelligence and Security have made it clear that any allegations to the contrary are without foundation. The Inspector-General has reported his judgement that the operations of the GCSB have no adverse or improper impact on the privacy or personal security of New Zealanders.

Now we know that after this law was passed, the GCSB continued to assist the SIS and Police with interceptions – where those agencies had gained a warrant.

This means there can be only two interpretations of what Helen Clark did.

  1. She misled New Zealanders on the GCSB. She knew that the GCSB assisted the SIS with interceptions. She should have said that the GCSB doesn’t intercept communications of NZers, except when acting on behalf of an agency that has gained a warrant to do so. She made a conscious decision not to mention this, and misled Parliament on what the GCSB does, and Parliament voted on a law not aware of what the GCSB does.
  2. She ignored the law. She was aware that the GCSB had traditionally assisted the SIS, and knew the law would stop them being able to do so legally when it involved a NZ resident. But then after the law was passed, she allowed the GCSB to break the law.

My belief is (1). I think Clark misled New Zealand and Parliament by not explicitly mentioning the fact that the GCSB did intercept communications of NZers, when doing so for the SIS who had gained an interception warrant.

I can understand the annoyance of people that the Government had not been explicit that the GCSB prohibition on interception communications from New Zealanders, doesn’t stop them assisting the SIS and Police if they have gained warrants.

The issue going forward is should the GCSB be able to assist the SIS. Labour’s position is, as usual, God knows. The Herald reports:

Labour would consider allowing the GCSB to spy on New Zealanders in limited circumstances but only if that was recommended by a full independent review of intelligence agencies, party leader David Shearer says.

Another clear concise and brave policy.

There are basically four options when it comes to communications interceptions. They are:

  1. Neither the SIS nor GCSB should ever be allowed to intercept communications of New Zealanders. 
  2. The SIS can intercept the communications of NZers if they gain a warrant to do so, but the GCSB can not assist them.
  3. The SIS can intercept the communications of NZers if they gain a warrant to do so, and the GCSB can assist them.
  4. Both the SIS and GCSB can intercept the communications of New Zealanders

The first option is what one might call the Keith Locke position. We would of course be the only country in the world that basically bans the intelligence agencies from being able to well, do their jobs. I doubt any party in Parliament except possibly the Greens would support this.

The fourth option is also not supported by any party or MP, as far as I know. Mind you, Labour seem to suggest they might go along with that if a review recommended it!

So really it is a decision between options (2) and (3). Do you require the SIS to spend what could be tens of millions of dollars on duplicating the GCSB systems in order to do around six interceptions a year?

You can argue, yes we should. That there should be purity of separation. That the GCSB should be like the CIA and never ever intercept domestic communications. Except that actually the CIA is authorised to do so in some circumstances so the comparison is not correct.

What I think is important is that the GCSB can’t just help the SIS with any old request. That their assistance is limited to cases where the SIS has gained a warrant due to security concerns. Let’s look at the SIS Act for the criteria. That:

the interception or seizure or electronic tracking to be authorised by the proposed warrant is necessary for the detection of activities prejudicial to security

And what does security mean:

  • the protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand:
  • (b)the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand’s international well-being or economic well-being:
  • (c)the protection of New Zealand from activities within or relating to New Zealand that—
    • (i)are influenced by any foreign organisation or any foreign person; and
    • (ii)are clandestine or deceptive, or threaten the safety of any person; and
    • (iii)impact adversely on New Zealand’s international well-being or economic well-being:
  • (d)the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act

So it is important to recall that the 88 cases cited in the Kitteridge report, all had warrants authorised under the SIS Act because they met one or more of the criteria above. The issue is not that they should not have legally had their communications intercepted – but whether the right agency did the interception.

If you do not amend the law, then there will be no reduction in the number of NZers who have interception warrants issued against them. The only difference is the SIS will do the interception directly, rather than use the GCSB.

22 Responses to “Labour and GCSB”

  1. excusesofpuppets (135 comments) says:

    Gosh. 2001 was a long time ago. Likewise, 2008 was also a long time ago. I suspect one Labour leader was not in parliament around then.

    Just sayin,

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  2. Sir Cullen's Sidekick (1,344 comments) says:

    Helen Clark can do no wrong. Let us move on please.

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  3. Cunningham (958 comments) says:

    Option 3 is obviously the most sensible option. But seriously though, do people actually give a shit? This whole thing has become such a sideshow. Just make the bloody changes and move on. I am sick to death of hearing about this when there are many more serious issues facing the country.

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  4. justinian (22 comments) says:

    The whole issue of legislating to recognise the existence of the GCSB arose when an SOP introduced the present s. 252 of the Crimes Ct (access to a computer system without authorisation) Following that section were two sections exempting the SIS and GCSB (they are now repealed). It was then realised that the GCSB had not “formal” existence so legislation had to be enacted. Talk about the law of unintended consequences….

    [DPF: Hmmn I recall advocating for that SOP, so maybe I’m to blame :-)]

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  5. Viking2 (14,467 comments) says:

    So a question.
    If the FBI came along as they did and requested the spying on Dotcom, which was and remains essentially a commercial purpose disguised as a crime by the FBI, how are the agencies going to separate that sort of behavoir from the real threats to the community.

    Secondly, what will be put in place to stop someone like the BBI carrying out those same activities without our agencies vetting the behavoir?

    That is really the nub of how all this began.
    And if the legislation doesn’t fix that then the same spying will continue.

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  6. Harriet (7,626 comments) says:

    “…..For the record, I reiterate again today that the GCSB intercept the communications of New Zealand citizens or permanent residents……”

    It’s what Helen meant by these words: “….. does not set out to….”

    If agencies, like the police, had enough reason under the law for the GSCB to do their work for them – then that’s fine.

    The police are really just the ‘long arm of the courts’ and already contract out lots of their own work….intelligence gathering should be treated no differently.

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  7. Kleva Kiwi (417 comments) says:

    Am I alone in thinking this has just been blown completely out of proportion because some fat german criminal got ‘kaput’?

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  8. Paulus (3,588 comments) says:

    Isn’t Shearer on the Government Security Oversight Committee ?
    Is that why Robertson is playing games ?

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  9. backster (2,533 comments) says:

    Seems simple to me, amalgamate the two.

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  10. Pete George (24,828 comments) says:

    Rather than amalgmate why not look at further separation?

    If we had an independent surveillance organisation that simply gathered data it could provide appropriate data to the GCSB, SIS or police depending on valid authorisation.

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  11. Chris2 (924 comments) says:

    Peter George @ 11:05am. You appear to be mistaken about GCSB’s functions.

    GCSB’s only role is to collect intelligence and pass it on to other agencies to analyse, like the SIS, Police and MFAT, etc. The GCSB does not have any analysts, it is a collection agency only.

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  12. dime (13,132 comments) says:

    i think id be happy with option 4.

    i guess from a business point of view it wouldnt be flash. also a lefty govt couldnt be trusted with such power.

    so i guess option 3.

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  13. Pete George (24,828 comments) says:

    Chris2 – so what is the problem with them doing both domestic and international surveillance and passing the data on to the appropriate agency?

    But they must have to analyse what intercepted data is appropriate to pass on for any given request.

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  14. flipper (5,339 comments) says:

    Excellent analysis by David.

    It is amazing how many media “experts” continue to refer to Fletcher as the national top “spy”.

    As Finlayson so delightfully put down Palmer in The House last week over the off-shore protest legislation: ” Look at the actual words”. Communications, and data collection. Not analysis.

    But let us be clear about what is authorised. No fishing expeditions. And let us have really robust oversight.
    The bullshit that successive Prime Ministers have advanced about security is not, repeat NOT, acceptable in 2013. We know too much to be fobbed by that rubbish.

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  15. Positan (460 comments) says:

    re Chris “GCSB’s only role is to collect intelligence and pass it on to other agencies to analyse … the GCSB does not have any analysts, it is a collection agency only.”

    Fair enough, but that fails to explain the curious remark of former GCSB head, Bruce Ferguson – that Clark would return his papers to her “marked out of 10 – with comments.” Given what has emerged since, I can only read that to convey that the GCSB was spying on NZers for Clark’s personal benefit or political advantage – and that its head (ie. Clark’s bum boy) had been apparently very keen to please her.

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  16. lazza (615 comments) says:

    Auntie Helen is a proven liar. This GCSB affair “may” be further evidence of her lack of integrity, I don’t know, (but it sure looks it!).

    For two other CLEAR examples of her dissembling try “The Paintersgate saga”, worse still, her disgraceful obfuscation of The (Hep B) Contaminated Blood Tranfusion” scandal… when she was Minister of Health in the late eighties.

    Interesting that Robertson is tarred with the same brush. But then thats Labour* for yuh!

    * How about Tamihere? … fibs again on the clamping story. they can’t help themselves. Oh and Shearer, lied/forgot? about a bank account, it goes on and on ….

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  17. tvb (5,542 comments) says:

    Allowing the GCSB to operate under a SIS warrant seems an artificial distinction from a full merger of the two agencies. I feel they should be merged but with some additional oversight than merely a very busy PM.

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  18. niggly (968 comments) says:

    GCSB’s only role is to collect intelligence and pass it on to other agencies to analyse … the GCSB does not have any analysts, it is a collection agency only.

    In layman’s terms perhaps GCSB, when providing agency support, could be likened to Telecom’s Chorus?

    For example Telecom/Chorus would assist Police with access to landlines/data for criminal investigations etc. Except the media and activists don’t go around saying “Telecom or Chorus is spying on NZ’ers”, when they, from what I can see, are doing exactly what GCSB do.

    In fact our resident anti-GCSB expert, Nicky Hager, stated something similar before the media blew this all up recently, he said last year:

    “They’re technicians . . . and they are the people who do a technical job.”

    Mr Hager also went on to say:

    “They can legally go out and listen to the airwaves, because that’s not planting a device.

    “So they could theoretically sit on a hill and pick up signals. Those signals intelligence officers are very good . . . they pick up all the local radio signals so basically they would be picking up his mobile-phone traffic.”

    Hmm nothing raised there about “illegal spying”!

    In terms of Agency Support the GCSB Act also states:

    8 Functions of Bureau

    (1) The Bureau has the following functions:

    (e) to co-operate with, or to provide advice and assistance to, any public authority or other entity, in New Zealand or abroad,—

    (ii) on any matter that is relevant—

    (A) to the functions of the public authority or other entity; and

    (B) to any purpose specified in subsection (2).

    Subsection (2) states:

    The Bureau may perform its functions only for the following purposes:

    (a) to pursue its objective:

    (b) to protect the safety of any person:

    (c) in support of the prevention or detection of serious crime

    Seems to me in terms of DPF’s article that scenario 1 applies to Helen Clark & the GCSB Act! Also seems like the 2003 Act needs better clarification or amending!

    Perhaps Grant Roberston, seeing he fancies himself as Prime Ministerial material, may wish to show some “leadership” and talk about this Agency Support aspect to clarify where modern Labour stand on the issue (oh and calling for an inquiry isn’t the correct answer)!

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  19. justinian (22 comments) says:

    The Police can request Telecom and other Telcos to provide assistance for warranted surveillance under the Telecommuncations Interception Capability Act.

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  20. davidp (3,870 comments) says:

    Intelligence is a tool to assist other agencies to do their jobs, rather than an objective itself.

    SIS essentially has two roles: 1. To gather intelligence on NZers acting illegally, or planning to act illegally. 2. Counter-intelligence, so that foreign governments don’t steal our secrets. I’d hope that SIS intelligence gathering on NZers only takes place when the targets are acting criminally, or plan to act criminally. So I don’t see why this isn’t a function performed by Police. Merge SIS’s intelligence functions with Police criminal intelligence. Then establish a small counter-intelligence group in Police, like the FBI have. Give the Police the equipment and skills needed to perform technical intelligence collection. Much of this will be useful for other Police investigations, such as computer forensics. Any intelligence collection performed by Police would take place under the terms of a warrant and would be performed by Police staff.

    GCSB has three roles: 1. Providing assistance to Police and SIS. As discussed in the previous paragraph, I’d allow Police to do this themselves. 2. Cyber security. I think this is a natural fit with the Government CIO in DIA. Cyber security guys need to interact with their colleagues in the government and IT communities and they can’t do this if they’re located in an agency with a culture of secrecy. 3. Foreign intelligence collection. I don’t believe this needs to be an agency on its own. Bring it in to Defence or Foreign Affairs. They’re not spying on NZers, so there is less need for oversight, warrants, Inspector Generals, etc.

    Thinking more about cyber security… In the long term, I suspect we’ll need to defend NZ’s national networks, rather than merely government networks. In which case, the Government CIO would be ultimately responsible for the security of government IT systems. But there may be a case for establishing a national cyber security center to defend the country. I’d look at contracting this out to Telecom, or to an alliance of telcos and ISPs. It could be a standards-making body and an operations center attached to Telecom’s NOC, perhaps?

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  21. Akldnut (20 comments) says:

    Nice attempt at diversion David, but that’s all it is, Johnny “I dont remember acshully” has completely bought it back into the headlines with his lies in the house

    Bet you’ve all already watched it anyway. If not read it for a good old laugh.

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  22. Dirty Rat (391 comments) says:

    “There has been a disturbing escalation of cyber activities beyond simply exfiltrating data to actually altering data and systems – there have been covert attempts to acquire New Zealand science and technology for programmes relating to weapons of mass destruction or weapons delivery systems,” Mr Key said.”

    Ummm, cant he use Google ?

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