Douglas Wilson’s Letter From Moscow

Rand Paul, National Review, and a View From the Cheap Seats

Blog and Mablog

Posted on Monday, March 10, 2014  

By Douglas Wilson 

I first subscribed to National Review when I was in high school, which would be somewhere northwards of 42 years ago. I  have been a faithful subscriber since that time, and — disagreements and all — it remains my favorite magainze. They are still genuinely conservative, although it should be said at the outset that they are not conserving quite as much as they used to.

Rand Paul, the senator from Kentucky, is a skosh more libertarian than I would like, but I like what he has been doing very much. About time somebody did, and all that. There are places where the libertarian streak will lead you astray (e.g. marriage), but there are other places where it supplies a much needed corrective to our putative lords and masters (e.g. metadata).

In their latest issue, in an unsigned editorial, NR took Rand Paul to task for his recent lawsuit claiming that the NSA’s collection of metadata was a violation of the Fourth Amendment. At the recent CPAC convention, Rand Paul said that what you do on your cell phone is “none of their damn business,” which was red meat for the assembled conservatives. But NR dismissed this line as showboating, a “publicity stunt” — frivolous and unnecessary.

Their argument was that the Fourth Amendment protects four categories of intimate personal property — “one’s person, home, papers, and effects.” The metadata has to be considered the property of the service providers, and not part of the citizen’s personal effects. Ergo, showboating.

Not so fast. The service providers are private entities. The Fourth Amendment applies to them also. Why should they be pressured into turning over metadata without a warrant? If a telecom company started up on the premise that they would keep all metadata confidential, meaning that nothing would be turned over without a warrant, would that be allowed?

And do we really want to say that it is okay for someone at the Post Office to keep a log book of all the letters I write? One column for the address, another for the handwriting, another for the size of the package, and so on, even if everybody promises not to open any of the letters? Unless they suspect something? These are my “effects,” which I entrusted to a third party for transport. I think the Fourth Amendment clearly does apply, but let’s suppose it doesn’t. That would only mean that Madison and company failed to anticipate the invention of the cell phone, and so we need to apply the principles they understood to this new situation, and we need to do it instanter. The Fourth Amendment protects my “papers” so I need to make sure that I don’t record my private information in a “paperless” office? Are they serious?

Now for a qualification. I have argued in the past that there is a distinction to be made between the desire for privacy, which is noble, and the desire for anonymity, which is not. And I grant that a hefty part of the libertarian moment is agitating for the latter, not the former. There are hazards here, in all directions. Just as I don’t have a problem with citizens operating in the new electronic world, so also I have no problem with legitimate police work being done there. The laws concerning warrants have to be updated, and not just the laws concerning the privacy of citizens. The same goes for those who are doing legitimate intelligence work. This is a problem that responsible people do have to work out.

Unfortunately, Washington D.C. is not run by responsible people. And, as Shakespeare would have put it, there’s the rub. We are told that the federal government is dedicated to keeping us safe. And we are saying in reply that we don’t believe you. You tell us that you are trustworthy. We reply that you are not trustworthy. If there were a scandal concerning the metadata, a genuine scandal, what on earth makes you think that it would be handled in any way different from how the IRS scandal has been handled? Or Fast and Furious? Or Benghazi? If you reply that our national security is at stake, I will say that the corruptions of Washington are a far greater threat to our national security than the jihadi ragheads are. If you really want to do something for national security, clean up the sinkhole of federal corruption first. Then let’s talk about the metadata you are yearning to get a hold of.

Our congressmen spend money like they were a regiment of chimpanzees that got into a warehouse full of trade gin. Millions of unborn Americans have been offed because of the federal government’s perverse definitions of privacy, speaking of privacy. You now want to tell us that you have a good grip on what privacy means when it comes to cell phones? No, you don’t — slaughtering thugs. You can’t recognize the image of God in an unborn child. Why would you suddenly respect the digital images of somebody’s kids on their cell phone? You don’t even know what a person is. How could you then know what personal privacy is?

In short, here it is. We don’t believe you any more. If I were a citizen of Russia, and just found out that Putin was collecting all the cell phone metadata over there, would you be assuring me that there was nothing whatever to worry about? That a character like Putin couldn’t put such information to a despotic use? Exactly. Your knickers would be in a twist if Putin were doing it. And this is not in praise of Putin. I believe him to be a competent thug, unlike Obama, who is an incompetent thug. And there are certain things I don’t want either one of them to have.

Politicians–Why We Hold Them In Such Low Regard

Over-egging the Pudding

The Labour Party has announced some new initiatives about the internet.  If it is elected to government, Nanny will provide internet access to all human souls in the country.  It will become part of a government guarantee.  How do we know this?  Because Labour is promising to do the very same. 

Citizens will have their access to the internet guaranteed . . .

What will that mean?  Don’t know really.  Hints are contained later in the grand policy announcement:

Accessing the internet is now an essential part of modern life. Labour will explore means of increasing public internet access –such as through libraries and Wi-Fi hotspots – to ensure all Kiwis can go online when they need to.

Wait a minute.  Exploring means of  increasing access to the internet is not a guarantee of access.
  How about the intrepid hunter or tramper up the heights of the Tararua ranges?  When one of them wants to go on the internet, will Labour guarantee that?  What about way up the Whanganui River in the isolated reaches of the Ruatiti Domain or the Bridge to Nowhere?  A government guarantee for accessing the Internet from there?  And while we are at it, how about a government guarantee for access to books?  For cell phone coverage? 

Why on earth do politicians or their PR minders constantly feel driven to over egg the pudding?  We are sick and tired of being spoken to as if we were little children about to be captivated by a fairy story. 

David Cunliffe, Labour leader goes on:

It would also guarantee freedom of expression, thought, conscience and religion, while still outlawing hate speech.

Mmmm . . . freedom of expression whilst outlawing hate speech.  Spot a contradiction there?  Who defines hate speech?  Well, we would hazard a guess that the following will constitute the operational definition: hate speech will be deemed to have occurred when some random declares that he is offended by what has been said.   That is the consistent pattern of its application overseas.  Ironically, hate speech is effectively defined as speech which other people hate.  In that context, freedom of expression has shrunk faster than open water on the Great Lakes.  It begs the question: is the Labour Party really committed to free speech, or is it ignorant of how “hate speech laws” have been applied in the United Kingdom and Australia and Europe?  It would be a gratuitous insult to suggest that David Cunliffe was ignorant, so . . .

But to these brickbats, let us add one bouquet.  Labour has declared it will act to prevent our spy agencies using internet to snoop on private conversations, without a warrant. 

Such legislation would protect people from the digital equivalent of warrantless phone tapping. While it wouldn’t override current GCSB powers, it would set a principle which would be used to replace the Government’s controversial new legislation.

Now there is something to get excited about.  It’s a pity that one gem was obscured, if not smothered by hyped up bloviations of little merit or substance. 

Beria Had His Good Points

We’re The Good Guys 

The latest revelations about the UK spying programme are worrying indeed.  They demonstrate just how quickly a so-called Western liberal state can morph into a institution of sinister countenance.

To be sure, both the Left and the Right in Western liberal democracies have had their respective versions of conspiracy.  The Left version has plutocratic capitalists perverting good and just government for pecuniary advantage.  The Right version has secret societies of Marxist bent infiltrating government agencies to work their poison.  Both versions have been pretty whacko at times.  Now, however, reality is trumping weird fiction.

Along came 9/11.  Suddenly, the threat from conspirators became vivid and tangible.
  The threat was terrorism and terrorists.  These people were archetypical conspirators: the theory became reality.  In order to combat the threat, governments needed extra powers.  But, it was argued, the common man would never tolerate such arrogation of power (at least once the immediate threat had passed), so it was better to keep them ignorant whilst government powers expanded secretly.  But the powers-that-be felt righteous in proceeding this way, because in their own eyes they were the good guys–protecting people , preventing harm, defending the innocent, etc.  The righteous end very definitely justified illicit means.

Since secretive terrorist groups relied substantially upon high-tech communication, the expansion of surveillance capability over billions upon billions of phone calls, e-mails, and other electronic communication was a wonderful boon.  Suddenly, snooping was taken to a heretofore unbelievable level.  Just in time.  But the rot set in immediately.

The Guardian has revealed that in the UK the electronic spy agency, the Government Communications Headquarters(“GCHQ”) has argued strenuously against its making its eavesdropping admissible in courts of law.  Why?  Because it did not want the public to know what it was doing. 

The UK intelligence agency GCHQ has repeatedly warned it fears a “damaging public debate” on the scale of its activities because it could lead to legal challenges against its mass-surveillance programmes, classified internal documents reveal.  Memos contained in the cache disclosed by the US whistleblower Edward Snowden detail the agency’s long fight against making intercept evidence admissible as evidence in criminal trials – a policy supported by all three major political parties, but ultimately defeated by the UK’s intelligence community.  Foremost among the reasons was a desire to minimise the potential for challenges against the agency’s large-scale interception programmes, rather than any intrinsic threat to security, the documents show.

Let’s get this clear.  The intelligence agencies (and political parties) wanted to spy on everyone, everywhere without warrant, but did not want its data used in courts as evidence, for fear of public backlash.  In other words, the intelligence agencies wanted to operate outside the judicial system.  What this implies is that extra-judicial executions in back streets was the next operational step. 

Let’s think this through.  An intelligence agency learns via electronic eavesdropping that a suspect is indeed a threat.  But he or she cannot be arrested and tried because the evidence must be kept secret.  What to do?  Black ops.  Take him or her out on the quiet.  Oh, but it’s OK.  We have the evidence.  They represent a clear and present danger.  It’s just that we are not going to bring that evidence before the court.  The public might not like how we gathered the evidence, since we are watching and eavesdropping on them as well.

The papers also reveal that:
• GCHQ lobbied furiously to keep secret the fact that telecoms firms had gone “well beyond” what they were legally required to do to help intelligence agencies’ mass interception of communications, both in the UK and overseas.
• GCHQ feared a legal challenge under the right to privacy in the Human Rights Act if evidence of its surveillance methods became admissable in court.
• GCHQ assisted the Home Office in lining up sympathetic people to help with “press handling”, including the Liberal Democrat peer and former intelligence services commissioner Lord Carlile, who this week criticised the Guardian for its coverage of mass surveillance by GCHQ and the US National Security Agency.

The most recent attempt to make intelligence gathered from intercepts admissible in court, proposed by the last Labour government, was finally stymied by GCHQ, MI5 and MI6 in 2009.  A briefing memo prepared for the board of GCHQ shortly before the decision was made public revealed that one reason the agency was keen to quash the proposals was the fear that even passing references to its wide-reaching surveillance powers could start a “damaging” public debate.

The snooping, surveilling, spying, Panoptican State operating extra-judicially on a mass scale came into being in the space of ten short years in the West.  It all happened while we were sleeping.  What a shift!  What a transformation.  What a revolution.  Stalin, Beria, the Stazi–suddenly these demons and institutions of secret state terror seem not so strange any more. 

When men stop believing in God, they will act as if they were gods.  The lust for power, illegal power, will become both insatiable and undeniable.  Quickly. 

The Big One

The Panoptican State Is Actually Operational

Yesterday the “big one” dropped.  The Guardian reported that the US and UK spy agencies have conspired together to gain control over on-line encryption, so that it is able to be cracked by them at will.  The Guardian also reports that internet companies known as the Big Four (Hotmail, Google, Yahoo and Facebook) are all complicit.

Through “covert partnerships with tech companies, the spy agencies have inserted secret vulnerabilities into encryption software”, reported the Guardian. 

Those methods include covert measures to ensure NSA control over setting of international encryption standards, the use of supercomputers to break encryption with “brute force”, and – the most closely guarded secret of all – collaboration with technology companies and internet service providers themselves. Through these covert partnerships, the agencies have inserted secret vulnerabilities – known as backdoors or trapdoors – into commercial encryption software.

The bottom line is this: the United States and the UK (so far–there may be more) can access any and all internet communications and material by private citizens and corporations and all non-government entities at will.
  It can also snoop on non US and UK citizens who use the services of the Big Four–which amounts to most people accessing the Internet.  Bank encryption for internet banking services is not excepted.  The Panoptican State is here.  The working assumption now for us all is this: Big Brother is watching us all the time and snooping on our private lives, without warrant, without our consent, without our knowing. 

But security experts accused them of attacking the internet itself and the privacy of all users. “Cryptography forms the basis for trust online,” said Bruce Schneier, an encryption specialist and fellow at Harvard’s Berkman Center for Internet and Society. “By deliberately undermining online security in a short-sighted effort to eavesdrop, the NSA is undermining the very fabric of the internet.” Classified briefings between the agencies celebrate their success at “defeating network security and privacy”.

“For the past decade, NSA has lead [sic] an aggressive, multi-pronged effort to break widely used internet encryption technologies,” stated a 2010 GCHQ document. “Vast amounts of encrypted internet data which have up till now been discarded are now exploitable.”  An internal agency memo noted that among British analysts shown a presentation on the NSA‘s progress: “Those not already briefed were gobsmacked!”  The breakthrough, which was not described in detail in the documents, meant the intelligence agencies were able to monitor “large amounts” of data flowing through the world’s fibre-optic cables and break its encryption, despite assurances from internet company executives that this data was beyond the reach of government.

The US spy agency, the NSA has wormed its way in to the bodies working on internet encryption standards.  It has deliberately insisted upon system weaknesses being included in security protocols so that the NSA could tap in at will.  This is cutely called obtaining the “insider advantage”.

Independent security experts have long suspected that the NSA has been introducing weaknesses into security standards, a fact confirmed for the first time by another secret document. It shows the agency worked covertly to get its own version of a draft security standard issued by the US National Institute of Standards and Technology approved for worldwide use in 2006.  “Eventually, NSA became the sole editor,” the document states.

The fox has been put in charge of the henhouse.

Now some will say, “So what.  I’ve got nothing to hide.”  There will always be a rump of sheeples in the population.  They will not realise the dangers until it is too late.  When the technological capability exists to spy on everyone, it will eventually be used for nefarious, illicit governmental actions.  When governments decide that certain individuals or classes of individuals are, say, enemies of the human race (which language has been used recently) count on this illicit technology being used to spy upon such miscreants. 

At the moment the justification is that such capabilities need to be developed by governments to protect citizens from terrorist attacks.  But that’s just because terrorists are the threat d’jour.  Other perceived threats will arise to take their place: then government of the day will move inevitably to use the spying technology to “confront” the new threats, which may be political opponents, recalcitrant reporters, regime critics, or any out of favour group falling into the threat d’jour category: home-schoolers, anti-war protestors, or pro-life advocates, for instance. 

Imgaine how we would have reacted thirty years ago if the government developed and applied technology that enabled a permanent wire tap upon all phone conversations, along with a permanent mail opening programme.  Today, that’s exactly what has been developed and applied.  Virtually all human communications (apart from “snail mail” and face-to-face conversations) go via the internet; they are all capable of being tapped by the US and UK governments (and counting).  Where the capability exists, assume its being used. 

There has been a lot of spurious wailing about the “crimes” of Edward Snowden–whistle blower extraordinaire–through whom all of this stuff has come to light.  Snowden has not revealed one bit of private information about individuals–to our knowledge.  All his revelations have had to do with systemic capabilities of spy agencies and with their application and use–most of which is illegal.  The man is a hero in our book.

And now the clean up.  The spy agencies and the highest echelons of government in the US and the UK have proven themselves law-breakers, deceitful and corrupt.  Can a clean up occur?  Not from these people.  They are far too compromised.  Who, then, will clean house?  We will see.  Our expectation is that the clean up will have to come from outraged ordinary citizens voting.  How outraged they become will be the key.

Revolutionaries, Radical Ideologues and Mindless Sheep

Old and New Spies

The revised spying bill became law in New Zealand on the 21st of August.  Labour and the Greens have promised to repeal the legislation if they capture the Treasury benches in 2014.  A local blogger has helpfully completed a comparison/contrast chart between the legislation it replaced and new amendments.

The old legislation was drafted in haste by the Labour government (with concurrence from other parties) whilst the threat of planes flying into buildings was a decided risk.  It was during that mad time when not enough was known about Islamic terrorist groups and their methodologies, tools, and techniques.  Therefore, the risks were larger in the popular imagination than in reality.  Legislation drafted in fear and passed in haste is usually rued by those suffering the indignity of having to submit to it.  So it was in this case.  It turned out lawyers could not understand parts of it; the text of the law was equivocal in others, contradictory in yet other places.  As a consequence, the Government Communications and Security Bureau (our version of the National Security Agency [“NSA”] in the United States) subsequently broke the law, apparently because it mis-interpreted it.

The new legislation tidies a lot of that up, removing confusion.  In addition, and most importantly, the replacement legislation contains far more checks and balances than Labour’s panicked legislation back in 2003.  It is thus a far better piece of law.  Citizens in the US must be green with envy when they compare and contrast our legal protections with those which don’t exist in the United States.
 

Below is the comparison/contrast chart:

Helen Clark GCSB law 2003	John Key GCSB law 2013
Inspector-General sole independent oversight	Two person advisory panel to assist the Inspector-General of Intelligence and Security
Inspector-General has no staff resources	Inspector-General has a Deputy
Inspector-General role is essentially reactive	Inspector-General to proactively annually review GCSB procedures, policies and compliance and do unscheduled audits
Inspector General not informed when a warrant is put on the register relating to a New Zealander	Inspector General is informed when a warrant is put on the register relating to a New Zealander
GCSB can’t intercept the communications of a NZ citizen or permanent resident but can assist “any public authority” on any matter relevant to their functions, and unclear if the former prevents the latter	GCSB can’t intercept the communications of a NZ citizen or permanent resident but can assist (only the) Police, Defence Force or SIS even if it involves a NZer.
No reporting of assistance given to other agencies	GCSB will be required to report annually on the number of instances when it has provided assistance to the Police, SIS or NZ Defence Force
No reporting on number of warrants and authorisations	GCSB will also be required to report annually on the number of warrants and authorisations issued
Intelligence and Security Committee has secret hearings to discuss the financial reviews of the performance of the GCSB and the SIS	Intelligence and Security Committee will hold public hearings annually to discuss the financial reviews of the performance of the GCSB and the SIS
ISC does not have to publicly report to Parliament	ISC to report annually to Parliament on its activities
No regular reviews of GCSB	An independent review of the operations and performance the GCSB and the NZSIS and their governing legislation in 2015, and thereafter every 5-7 years
GCSB has a function to protect any information that any public authority or other entity produces, sends, receives, or holds in any medium	GCSB function to protect any communications that any public entity processed, stored, or communicated in or through information infrastructures
No specification of limits of GCSB assistance	Specifies that GCSB can assist Police, Defence Force and SIS, but only for lawful activities such as where warrants have been granted
IPCA has no jurisdiction	Gives the IPCA and the IGIS jurisdiction to review any assistance given to Police and SIS respectively
No references to according to human rights standards	Specifies all functions of GCSB must accord with NZ law, and all human rights standards recognised by NZ law.
No references to not undertaking partisan activity	Specifies GCSB can’t be involved in any action that helps or harms a political party
No requirement to brief the Leader of the Opposition	GCSB Director required to brief Leader of Opposition regularly on major activities of GCSB
Requires GCSB to destroy any records not relating to GCSB objectives or functions	Required GCSB to not retain any information on NZers collected incidentally as part of foreign intelligence operations unless relates to serious crime, loss of life or national security threats
No special protection for legally privileged communications	Legally privileged communications explicitly exempted from scope of an interception warrant
No requirement to have a policy on personal information retention and use	GCSB required to work with Privacy Commission to have a policy on personal information retention and use
No restrictions in GCSB Act on retaining personal information	GCSB can only retain personal information for a lawful purpose, and can’t keep longer than required for any lawful purpose

It is clear that the intelligence gathering agencies of state are today far more controlled, checked, and balanced than was the case previously. Under the previous law, the GCSB had no restraint on which agencies of government it could assist. Conceivably, it could have assisted Inland Revenue to surveil any and all citizens. No warrants were required. Moreover, and of great importance, the GCSB cannot hoover up mass electronic data upon citizens and store it in data-warehouses, just-in-case it should be needed some time in the future.

No spying legislation is perfect. The current (new) law is certainly not. But it is far, far better than the mess of pottage it replaces.

Only revolutionaries, radical ideologues, and mindless sheep would object.

Unrighteous Espionage

Doubts and Suspicions

We posted recently on the unavoidable necessity of espionage.  We also argued that those who spy and those who receive information from the espionage apparatus should not be trusted.  They need at all times to be checked and balanced by other powers.  “Trust but examine and verify” is the apt slogan.

The present spying legislation has been amended since first introduced to the House.  It is a better piece of legislation than it once was.  There are more checks and balances.  The issue of spying on behalf of other governments with whom we have espionage agreements is another matter.  As far as we can tell the Bill is silent or unclear when it comes to NZ espionage agencies spying on NZ citizens at the behest of the United States, Canada, Australia, and the United Kingdom (our “Five Eyes” partners).

To cut to the chase: if the US wanted to spy on a New Zealand citizen (say, just for argument’s sake, Kim Dotcom) would the NZ espionage agencies need a warrant under New Zealand law, and would those activities on behalf of a foreign power, be subject to the same checks and balances and disclosures that a New Zealand agency would require (for example, the NZ Police wanting to surveil a New Zealand citizen)?  We hope so.  We would argue strenuously that this ought to be the case.  We fear the worst, however.
 

The New Zealand government has conceded that metadata (names, addresses, dates, times of communication, etc) constitutes information (a good step).  The New Zealand espionage agencies will not be gathering and storing metadata on New Zealand citizens.  But will it be gathering and passing on metadata to be stored by the United States spying agencies?  Again, the matter is not clear.  We suspect the worst.  If we are to trust them in this matter, there needs be scrutiny and far more verification.

Chris Barton, writing in the NZ Herald, raises the relevant issues:

Can New Zealand say no to the United States of America? This is the difficult question at the heart of two pivotal and far reaching decisions about to be made.  Our parliament is deliberating whether it’s OK for the NSA to spy on all New Zealanders all of the time. And our Supreme Court is deliberating whether a United States request for extradition trumps the fair process of New Zealand law.

There is an argument which runs, Who cares?  Who cares if the United States or the UK knows things about us that our own government does not?  After all, we are not answerable to foreign governments.  Yes and no.   We don’t need care until we do–and by then, it’s too late.  Let’s conceive of actions, communications, or speech which violates US domestic law.  Let’s say, for example, one of us sent an e-mail to someone in the US or the UK or the Cayman Islands that averred that President Obama was a waste of space and the planet needed to be rid of bearing his useless weight.  In the United States we may be liable to investigation and indictment.  But what if the US sought to extradite us out of New Zealand because we had broken US law, as evidenced by our e-mail, which had been intercepted by NZ espionage agencies, and the contents delivered over to the United States as a matter of course.

Peter Dunne, MP has secured some helpful checks and balances to the current draft of the bill which will control the activities of the Government Communications Security Bureau (“GCSB”).  But upon this matter he has been hopelessly at sea.  He appears to have opted for the “too hard” basket.

On the one hand Dunne says there is truth to the claim that “there is still no mechanism in the new laws to ensure our private communications are not fed into any kind of global surveillance programme, like the NSA’s Prism“. On the other he says that’s beyond the scope of what GCSB does within New Zealand and is a debate that should be dealt with separately.

This is the irreconcilable aspect of the GCSB Bill that is so chilling – that it makes legal the indiscriminate spying on of New Zealanders, but remains silent on the mechanism under a Kafkaesque don’t-tell regime to protect national security. The illegal surveillance of New Zealand resident Kim Dotcom and others tells us, however, that the agency doing the spying is the GCSB and that metadata has indeed been harvested.

The threat of “global terror” has pushed governments on to a perpetual war footing–of emergency powers becoming the norm.  This is the clear and present danger, not global terrorism.   This is the crucial broader issue that must be addressed.  It is the debate we need to have in New Zealand

The question New Zealand citizens are being denied the chance to debate is whether we want to be a part of this routine mass surveillance dictated by Washington; whether such a wholesale surrender of privacy is necessary, or even desirable, to combat terrorism; and whether we can opt out of Five Eyes and still remain a friend of the United States. . . . Do we agree to allow the rights of people in New Zealand – such as the right to privacy or justice – to be diluted or ignored in favour of international obligations? It’s a question those MPs about to pass the GCSB bill should ask, keeping in mind, on a matter as important as this, they are elected to represent the people not their party.

Because the government is not prepared to be candid about the “meta-data” of our international spying obligations, but shrouds it under a cloak of secrecy, unwilling to divulge what is done and what obligations the government considers us to be under, suspicion grows.  They are hiding something.  They don’t want us to know.   They are not to be trusted.  They are never to be trusted.  Power corrupts.  We need more checks, more balances, more disclosure–much more. 

Righteous Espionage

Trust, But Thoroughly Verify

It’s looking as though the NZ government will get its amendments to spying legislation through the Parliament and into law.  There is continued opposition to the bill, despite substantial changes and amendments being made.  This continued opposition has begged a question: what changes to the bill would satisfy the remaining opponents?  The answer seems to be: nix spying completely.  In this view, espionage is wrong, period. 

This totaliter aliter opposition has two forms: a semi-strong form, and a strong form.  The semi-strong form makes a divide between spying on citizens and spying on non-citizens.  Spying on citizens is always wrong–in this view.  The strong form opposition has it that all spying period, regardless of the object, is wrong.  Neither the semi-strong or strong forms of opposition make much sense. 

In reality we have domestic spying going on all the time.  All forms of police surveillance constitute a form of spying.  Some require a judicial warrant.  Some don’t.
  When a police car goes down a street and observes an unruly crowd and the car parks up and watches what transpires, it is a form of spying–on citizens, no less.  Likewise, all undercover policing is a form of espionage.

It is axiomatic that even as we have criminals and would-be criminals in our midst, so we have those beyond our borders who would render harm to our people.  Knowing who they are and what they are likely to be up to, in order to protect and defend is essential.  It is an intrinsic and ethical duty of civil government.   This renders espionage an essential duty of state policing. 

The issue is not espionage per se, but the terms and conditions under which it takes place.  New Zealand’s tacit constitution has a separation of powers: parliament versus the executive; judiciary versus the executive,  the people versus the government, and so forth.  The appropriate controls over spying need to be set in law and they need to draw upon separate powers to provide sufficient checks, balances, and protections.  If that is the case, then we have no principial objections to espionage.   But, pre-meditated, planned espionage activities ought to have judicial oversight and warrant–to confirm that the activity is lawful.  Not capturing and storing unwarranted information upon citizens is an essential limitation, and so forth.  Judicial reviews of the overall spying “programme” are also necessary and a useful check and balance.  Reporting to a parliamentary committee according to the terms set forth by parliament is also a helpful check.  Sunlight is always the best disinfectant.   The bottom line is that no one governing power should implicitly trust the others.  All men are evil, and if left to their own devices, the evil of men will eventually predominate.

“Never trust the bastards” is a good maxim in these matters.  If men are allowed to arrogate power in secret they will do it.  Those that profess they won’t definitely should not be trusted.  Truly honourable men will insist upon limitations and checks and balances to, and scrutiny of, their powers.  

We need to be reminded that prior to our current Prime Minister, we were served by one Helen Clark.  Clark’s Jacobinish regimen was characterised by a general disregard for our tacit constitution and an ambition to make radical changes to the way our democracy is constituted for partisan political motives–as in trying (and failing) to ram through taxpayer funding of political parties. (Her own party, NZ Labour had run out of money due to declining membership.)  She was also alleged to have leaked privileged information to news media anonymously in order to get people she opposed dismissed.  It does not bear imagining what Clark would have done with an intelligence service empowered to spy on any or all New Zealanders without checks and balances.  The current Prime Minister appears naive and unaware of the risks.  He is a cheery, “hail, well met” kind of fellow.  Neither Clark nor Key–nor any other Prime Minister deserves our trust in such matters.  It has to be a “trust but thoroughly verify” regime if our liberties are to be properly protected.

It is disappointing that our current opposition political parties (NZ Labour, Greens) have failed to play a responsible role in the present spying legislation changes.  They could have had a very constructive role on behalf of us all, but they chose not to, intent on scoring partisan political points.  This amounts to a gross dereliction of duty and responsibility.  As it has turned out, we have had to rely on the contribution of one sole independent MP–Peter Dunne who negotiated some crucial amendments to the legislation.  Labour, the Greens and other blow-hearts such as Winston Peters have failed in their responsibilities and are beneath contempt in this matter.

Christians believe in original sin.  We believe in total depravity.  We believe in government instituted by, and responsible to God.  Therefore, we respect government, whilst being deeply sceptical of those who hold office. Power does actually corrupt.  It energises the latent corruption present in us all.  “Respect our government, but distrust our governors” is a thoroughly Christian maxim–all the more so, when secrecy and espionage are on the table. 

Government Spying Bill

Much Better

The NZ Government has put out a press release documenting amendments to its new spying bill.  These were agreed to as a result of consultation with the government’s minority party (ACT) and with Peter Dunne (Independent).  The Bill now has enough votes to pass the House.  The Prime Minister has said that he still prefers a wider political consensus, and is continuing talks with the NZ First party. 

Have the amendments made a difference?  We believe so.  In fact, we are heaving a sigh of relief.  Here they are:

The changes that will be made to the Bill include:

• A set of guiding principles will be added, in line with requests from Mr Banks and Mr Dunne.
• The Inspector General will be supported by a two-person advisory panel.

In addition to these changes previously signalled, the Prime Minister has agreed to the following changes with Mr Dunne, which will be made through a Supplementary Order Paper in the House:

• The removal of the proposed Order in Council mechanism which would have allowed other agencies to be added to the list of agencies able to request assistance from the GCSB. Any additions beyond the Police, NZSIS and NZ Defence Force will now be required to be made by a specific amendment to the legislation.

• To ensure effective oversight in the issuing of a warrant, the Bill will be amended so the Inspector General is informed when a warrant is put on the register relating to a New Zealander.

• The GCSB will be required to report annually on the total number of instances where it has provided assistance to the Police, NZSIS or NZ Defence Force.

• The GCSB will also be required to report annually on the number of warrants and authorisations issued.

• The Intelligence and Security Committee will hold public hearings annually to discuss the financial reviews of the performance of the GCSB and the NZSIS.

• There will be an independent review of the operations and performance of the GCSB and NZSIS and their governing legislation in 2015, and thereafter every 5-7 years.

In addition to these changes Mr Dunne will have a role in the Government’s upcoming work to address the Law Commission’s 2010 report Invasion of Privacy: Penalties and Remedies. This work will include a review of the definition of ‘private communication’, which was highlighted as an issue by submitters on the GCSB legislation.

We are pleased to see that the Government Communications and Security Bureau will serve only the Police, the Intelligence Service, and the NZ Defence Force.   We like the idea of an independent review.  We like the beefing up of oversight (both in personnel and activity) by the Inspector General.  It is very good that whenever a warrant is issued, the Inspectorate has to be informed.  We are also pleased that “meta data” looks like it will be defined to be part of “private communication” which prevents the authorities exploiting a technical loophole as has happened in the United States.  According to Audrey Young, NZ Herald columnist,

Mr Key said today that he did not believe that the GCSB had engaged in the mass collection of metadata and he confirmed that it should be treated the same as communication and any collection of it would require a warrant. He planned to make a clear statement about it in the bill’s second reading.

One concern not discussed is the extent of collaboration between the Five Eyes nations (US, Canada, Australia, UK, and NZ).  It appears that the GCSB would continue to spy on NZ citizens at the request of any of these “partners”.  Why they did with the information, and whether it may end up back in the hands of other non-warranted authorities in New Zealand is unclear.

But on the whole we now have a much, much better bill with more safeguards, controls, and limitations.   We are now much more in line with Australian practice.  Maybe the US Congress should take a long look.  Concerned members there may find their hands have been strengthened.  That may embarrass the Obama administration into shaping up–committed “internationalist” that the President purports to be.

More on That Spying Legislation

Immolating Trust

The NZ Prime Minister, John Key has got the matter of amendments to espionage legislation dead wrong.  Key’s initial approach these legislative changes he was proposing is that they were relatively minor tweaks to remove vagueness and uncertainty of the current law.  That might have worked, and one could extend to him the benefit of the doubt on the matter. 

Then came Edward Snowden and the revelations about the US espionage establishment routinely spying on its own citizens via electronic media interception–contrary to law.  It has also transpired that it has been routinely spying on supposed allies.  New Zealand is linked into the US espionage establishment and works with it, in an operational arrangement called “Five Eyes”.  Is New Zealand similarly involved?

Suddenly the issue has ratcheted up substantially.
  It is now moot–in the sense that we do not know–how must electronic eavesdropping the NZ espionage establishment routinely conducts on New Zealanders.  We do not know whether they collect “meta-data” without warrants.  We do not know how much spying we do on our own citizens on behalf of the other Five Eyes nations (US, UK, Canada, and Australia).  We do not know what protections and bright-line law is in place to prevent such things occurring.  Legal experts have told us there are none.

Recall that the US law did not exclude meta-data from the spying prohibition upon its own citizens, so the US government went ahead, without legal authorisation or specific Congressional oversight.  It turns out that meta-data–names, addresses, times, dates of electronic communication–is all you need to store permanently to get access to the actual content of communication, since most electronic data is never actually destroyed.  It can be re-captured, re-created.  At least that’s what Mr Snowden is saying:

On how long data is kept by the NSA, Mr. Snowden said full text data “ages very quickly, within a few days.” If an analyst flags certain data, it is kept longer, but other material is deleted.  For metadata — gathered by the NSA’s Prism program — the communications are “stored forever.” Metadata on telephone calls identify who calls whom, when, where and for how long.  “Most of the metadata are more valuable than the contents of the communications, since in most cases the contents can be recovered if you have the metadata,” Mr. Snowden said.

So, suddenly we want to be assured that the NZ authorities are not involved in a similar duplicity and  subversion of the clear intent of the law here.  Not unreasonable, one would have thought.  As Herald columnist, Audrey Young has it:

Key is progressing the bill as if the world had never heard of Edward Snowden, Prism or metadata.  People are worried about metadata and Key has not addressed those concerns.

Quite rightly, the Prime Minister has said he wants bi-partisan support for the law changes.  But to say it, and to work at achieving it are two different things.  To be huffy and snidely suggest that the Labour Leader, David Shearer is disingenuous because he “has not picked up the phone” is not good enough.  Key has a phone too.  He should be working this assiduously, if indeed he genuinely wants bi-partisan support.

The Law Society has come out against the Bill.  So have tech experts and Internet service providers.  Now the Human Rights Commission has come out against the Bill.  None of these are politically motivated.  There is smoke here–and where there is smoke it’s not unreasonable to suspect a fire.

Key is starting to show signs of being corrupted by power.  Hardly unusual.  But utterly wrong, nonetheless.  Here is Key just six short years ago–in fine fettle and with convictions and instincts that made him prime ministerial material.

Here in New Zealand we often take our democratic freedoms for granted. We think they will always be there. We have a Bill of Rights which is supposed to protect our right to freedom of expression. What on earth could go wrong?  I have a different view. I believe what Thomas Jefferson said – that the price of freedom is eternal vigilance. There are times when we have to stand up for our rights, and the rights of our neighbours and friends, and indeed the rights of people we totally disagree with, or else these rights will begin to erode away.

I agree with these sentiments, absolutely. New Zealanders must stand up for their democratic rights when they are threatened, or they’ll lose them.

Key is now burning through the trust of the electorate he built with speeches such as the one quoted above faster than a brushfire in the MacKenzie Basin at high summer.  

 

Cartoon of the Moment

 Taking Liberty

Letter From America (About the US Intelligence Community)

U.S. intelligence community is out of control

By David Rothkopf, Special to CNN

July 2, 2013 

CNN

Some did it for the money, some did it for idealism, others didn’t do it at all. The U.S. has seen a number of high profile leak scandals including the Pentagon Papers during the administration of President Richard Nixon. 

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STORY HIGHLIGHTS

• David Rothkopf: The U.S. intelligence community is being slammed as overreaching
• He says more news of spying, on United States’ European allies, has drawn shock and anger
• He says it’s out of control, with poor oversight and disregard for laws and U.S. values
• Rothkopf: There are real threats, but intelligence community hasn’t shown spying is only answer

Editor’s note: David Rothkopf writes regularly for CNN.com. He is CEO and editor-at-large of the FP Group, publishers of Foreign Policy magazine, and a visiting scholar at the Carnegie Endowment for International Peace. Follow him on Twitter.

(CNN) — It’s hard to think of a time in the history of America’s intelligence community when it has been more battered by accusations of over-stepping or mismanaging its mission: to secretly gather information to support the activities of the U.S. government

The list of recent revelations grew over the weekend with allegations that America has been systematically spying on its European allies. Reports in the European press, apparently drawn from documents provided by Edward Snowden, suggested that America spied on the European Union, France, Italy, Greece and other close international friends, listening in on encrypted fax transmissions and planting bugs and other devices at 38 embassies and missions in Washington and New York, as well as locations in Europe.

David Rothkopf

The timing is not great: the eve of scheduled trade talks with the Europeans, a priority of the Obama administration.

The new reports have caused a furor across the continent, stoking the uproar caused by earlier Snowden-related revelations that America has been listening in on millions of German calls and e-mails.

Top officials, like Secretary of State John Kerry, shrugged it off by saying allies often spy on each other, and others, like former Director of the NSA and CIA Gen. Michael Hayden, noted that some friends spied on us. But the damage was done to important relationships and to the Obama administration’s prior claims that it would conduct itself according to a different standard than past U.S. governments. “Officials have bought into the post 9/11 paranoia…and come to accept that even the possibility of a meaningful attack on the U.S. warrants disregard for U.S. laws and international agreements.”

This all comes on the heels of reports that the overreach of the intelligence community begins at home. While it will be cold comfort to our NATO allies that we are only treating them as we do our own people, the details of programs that warehouse massive amounts of phone metadata and e-mail traffic were the first shock waves produced by the Snowden leaks.

But the problems go beyond what Snowden leaked to the very fact that a comparatively junior contractor could gain top level clearances and access to so much information. Indeed, it is deeply disturbing that hundreds of thousands of private contractors had Top Secret clearances and that, as we have learned, many may have gone through inadequate screening procedures or been inadequately managed.

Earlier news — about the scope of U.S. drone programs managed by the intelligence community, “kill lists,” extra-judicial targeting of perceived threats, the scope of America’s cyberwarfare programs against enemies in Iran (Stuxnet), China and elsewhere — have already called the role of the community into question. Just last week NBC News reported that a senior U.S. military leader very close to President Obama and his national security team, Gen. James Cartwright, was a target of a leak investigation concerning Stuxnet.

These are all stories of a culture of secrecy and of arrogance that has simply gone too far. Perhaps each and every one of these missions began with a reasonable national security goal. But because so much of the planning and execution takes place behind closed doors or in situations in which the term “oversight” is laughably applied to wink-and-a-nod rubber stamping of initiatives, it is perhaps more surprising we have seen so few scandals than that we are dealing now with what seems like so many.

Consider: According to the U.S. government’s own figures, last year the Foreign Intelligence Surveillance Court received 1,789 applications for approval of government spying operations and OK’d all but one. Since 2001, according to a report in Salon based on government figures collected by the Federation of American Scientists, more than 15,000 applications were approved and only 10 denied. The Supreme Soviet of Cold War Russia was a less effective rubber stamp.

The FISA Court is just one of the feeble oversight mechanisms that apparently did not do its job. Congressional and executive branch officials have bought into the post 9/11 paranoia and hopped up threat mentality and come to accept that even the possibility of an attack on the United States warrants disregard for U.S. laws and international agreements. Not to mention the principles of respect for individual liberties and reasonable constraints on government power on which the United States was established.

This was well illustrated when NSA Director Keith Alexander argued that the agency’s massive surveillance programs were warranted because they allegedly stopped “over 50” terror attacks, with scant reference to the size of the attacks, the real risk posed, whether other means to stop them that didn’t involve massive surveillance might exist, or to the possibility that the damage done to civil liberties might be worse than that which might have been produced had the terror plans gone forward.

Indeed, senior U.S. officials have told me that, in their view, a primary motivator for accepting all these programs was fear that resisting would hold dire political consequences for them, should an attack occur. In other words, in the modern U.S. intelligence community, CYA has become more important than CIA.

There are real threats out there. And, yes, other nations spy on us. Terrorists use new technologies to target American interests and citizens and must be contained. Cyberwarfare poses a growing threat to the United States as well as other nations.

All these facts require analysis and countermeasures by the U.S. government. Some require the United States to go on offense. But what the revelations show is a series of errors of overreach and bad judgment, not that all our programs should be eliminated. The problem here is one of scale and of profoundly compromised and twisted values.

That problem itself is complicated and exacerbated by America’s emergence as the world’s first cybersuperpower. As such, we have sought to flex our technological muscles not only in ways that make us safer but that introduce a new form of constant, low-grade, invisible conflict that makes Cold War spy games seem quaint in their narrowness–even if their stakes were much higher. In the past, I’ve called this Cool War—neither cold nor hot but dangerous nonetheless, not just to our enemies but also to our friends, our interests and our values.

Edward Snowden broke the law and if the United States can bring him in, he deserves to be prosecuted. But the ones who should be in their own hot seat are those who created, approved and rationalized into existence the sprawling, seemingly uncontainable global intelligence and cyberwarfare apparatus that is as much of a threat to the kind of country we want to be as any terrorist group.

The problem for us, of course, is the only people with the power to restore balance and common sense limitations to these programs are the ones who let them get so out of control in the first place.

Dangerous Times

Where the Real Threats Lie

Several days ago we called attention to our own backyard example of state oppression of one of our citizens.  Mr Dotcom had fallen foul of US authorities because he represents competition for some very powerful US communications and media interests.  Big Hollywood players appealed to the US Vice-President who then concluded that Dotcom was a national security threat. What was a civil dispute suddenly morphed into a threat to national security–a kind of terrorism. 

Within a nano-second big monied interests (donors to politicians) were able to parley protecting private commercial interests into protecting national security.  Dotcom was spied upon, and New Zealand intelligence services became immediate willing parties to the illegal activity (due to our intelligence alliances with the US).  One small problem: the New Zealand intelligence agencies broke New Zealand law. 

Now the New Zealand government wants to change the law under urgency so that extensive spying can take place on any citizen at any time without judicial warrant.
  In other words what was formerly illegal would now be legal.  All in the name of national security.  We are sure that if passed the law will be manipulated to oppress anyone who steps out of line eventually, even as has happened already with Doctom.  Chris Barton writes on this pressing matter in the NZ Herald:

Dotcom claims a specific New Zealand example. “From the Court of Appeal we have seen the documents that confirm that the GCSB has inputted into Prism – the system that the US is currently getting heat for – my email address, my mobile number, my IP address and they received back from the US-based spy cloud all the information that the Five Eyes had gathered on me.”

There are two problems with this situation. One is that our laws specifically state that the GCSB is not supposed to spy on New Zealand citizens. The second is that Dotcom may be a lot of things, but it really is a stretch beyond reason to call someone charged with secondary or contributory copyright infringement a terrorist or a threat to national security. In his submission on the proposed GCSB Bill, Dotcom says what he and his colleagues have endured over the last 18 months represents “an extreme present day example of what can happen when Government and intelligence agencies misuse or misunderstand their powers“.

As the Kitteridge Report shows, the GCSB has been freely gathering metadata involving New Zealanders without a warrant for some considerable time because it assumed metadata was “not a ‘communication’ for the purposes of the prohibition expressed in section 14 of the GCSB Act.” Kitteridge points out that assumption was wrong and metadata would indeed “be likely to constitute a ‘communication’.”

The government response to all this is to pass new legislation under urgency to make such illegal activity – spying on all New Zealanders – legal. The Law Society is among many groups which are not impressed. “The Bill empowers the GCSB to spy on New Zealand citizens and residents, and to provide intelligence product to other government agencies in respect of those persons, in a way not previously contemplated and that is inconsistent with the rights to freedom of expression and freedom from unreasonable search and seizure under the New Zealand Bill of Rights Act 1990 (NZBORA) and with privacy interests recognised by New Zealand law.”

Tech Liberty also raises disquiet: “We are particularly concerned with the Bill’s silence on the GCSB’s existing practice of collecting and analysing metadata.“

Another also not impressed is Dotcom’s co-accused Matias Ortman, who told the Meagabreakfast audience: “As a German I’m very aware of German history. In the 1930s there were similar tendencies by the German government.”

Perhaps what’s most insidious about this extraordinary loss of freedom and encroachment on privacy is the public acceptance of the need for a ubiquitous watchtower’s gaze. Our part in accepting such a state of permanent visibility under Prism’s all-seeing, metadata eye is that we accept its control. We are compliant.  In such a world, where mass surveillance is the norm, we the inmates don’t know when we are being watched, but we do know we can be singled out for inspection at any time. Under the promise of protection we surrender privacy.

Once given up, it’s a freedom we may never get back.

If the despised Helen Clark had proposed what Prime Minister John Key is currently pushing, shrieks of outrage would have been heard from the Cape to the Bluff, and rightly so.  But because “Honest John” is pushing it, the people are somnolent and supine.  Until the day that Helen Clark Mark II arises and then we will see Leviathan reborn. 

Imagine what would have happened to the Exclusive Brethren (who had published some pamphlets critical of Clark and the Green Party) if Clark had at the time the powers that Key is now grasping after?  Those parodied in Parliament as the “chinless scarf wearers” would have become threats to  national security more quickly than it takes to say “Prime Minister”. 

Keeping Perspective

The Greater Treachery

Ad hominem attack is mounting upon Edward Snowden.  Apparently he conspired from the get-go to infiltrate the government spy agencies and exfiltrate information and data.  A local blogger had this to say:

So let’s put aside the fantasy of Snowden being some sort of caped crusader, fighting for truth and justice; he is anything But. He made a deliberate and conscious decision to take up a job with the pre-meditated intention of stealing data and releasing it publicly. We reckon that this will harden people’s attitudes towards Snowden. He is a spy, just like those that he is trying to vilify. He has certainly forfeited the moral high ground.

It has been reported that the US Government has cancelled Edward Snowden’s passport, so that he cannot legally enter Russia, nor can he go anywhere else legally. Perhaps 10 years “incarceration” in the transit lounge of a Russian airport might give Snowden the opportunity to reflect on his treachery and deceit.

Treachery and deceit.  Well, it seems to us that such a petard would hoist all whistleblowers.
  To some extent or other all whistleblowers break confidentiality agreements (which are pretty standard these days) and to one degree or another they take information that does not belong to them and expose it to the respective authorities. They usually deliver documentary evidence to back up their claims.  

But let’s grant the point for the moment–whistleblowing is an inherently immoral and unethical practice.  Let’s hoist Snowden on that petard.  But the question is begged, so what?  Imagine for a moment that the US espionage complex had been complying strictly and exactly to the law–the law which it constantly testified to Congress with which it was in total compliance.  What would Snowden’s whistleblowing have accomplished then?  Nothing.  Imagine a deep throat whistleblower that comes forth to tell us that New Zealand police consistently and regularly read people their rights when they arrest suspects.  Nothing surprising there.  Move along.  That’s exactly what we would expect, after all. 

Suppose Snowden had infiltrated and discovered that the US agencies, together with their Western running dogs (to employ good old fashioned rhetoric from a by-gone era) were in strict compliance with the laws.  They were not spying on US citizens.  They were not keeping data.  They were not hacking the computers and phones of people all over the world, including their own citizens.  They were not slyly telling investigative agencies what warrants should be applied for, so they could go on fishing expeditions, because there appeared to be significant threats.  They were not leaking private e-mails of people like General David Petraus to orchestrate his resignation.  They were not using their powers to hack into the computer of a particularly aggravating reporter and exfiltrate data–all of which, of course, was done (as far as we can tell) without warrants, and no probable cause whatsoever.  If none of this was actually the case then Snowden’s whistle blowing would have been completely null and void. 

But that has not been the case.  Therefore, if Snowden is a traitor, so are those in the US government apparatus that willingly and knowingly deceived and misled Congress, and broke the law.  Which is the greater breach?  Clearly, the authorities. 

Legitimate Concerns

John Key, Smiling Leviathan

New Zealand is in the middle of its own public controversy over government snooping into the affairs of private citizens.  It would probably have been a storm-in-a-teacup affair were it not for the Snowden expose of US, British, Canadian, Australian and New Zealand world-wide electronic surveillance causing so much disquiet in the United States.

But New Zealanders can now conceive of the risks in a concrete manner.  It has moved from the potential to the actual.  With the NZ government trying to amend the  the Government Communication and Security Bureau (“GCSB”) spy agency law to plug some loopholes right at this moment, the spotlight has been switched on.  Will the GCSB end up doing what the US spy agencies have been doing–which is collecting digital data on its own citizens containing their private messages–with no probable cause whatsoever?

At the outset, let us be clear.  On this matter we simply do not trust our Prime Minister, John Key.
  His perspective is far too naive and superficial.  His “trust us, we know what we are doing” demeanour, coupled with his inability to enunciate principled safeguards and checks and balances to a horrible overreach of state powers offer little comfort to citizens.  We are right to be deeply suspicious of the proposed legislation because we believe that on this matter Key is way out of his competence zone and the Bill as currently drafted has been written by the security agencies themselves.

Key has approached this with the same superficial, light-hearted pragmatism that has governed so much of his Prime Ministerial tenure.  He is a non-ideological kind of guy.  He is a common-sense politician.  Whilst on a whole bunch of issues this may stand him in good stead, when it comes to fundamental issues like the power and authority of the state over its citizens he is way out of his depth.

He showed this on the matter of the anti-smacking legislation.  He reduced so many families to uncertainty, doubt, indecision and fear by supporting ill-crafted legislation that made smacking a child for the purposes of training and discipling a crime, and at the same time declared that the police would exercise discretion in the application of their powers.  Well, the NZ police have been pretty restrained (so far), but not so the other government agencies, such as Child Youth and Family which, emboldened by the legislation,  have ripped far too many decent families apart on the smallest of pretexts.  Key never saw this coming, and he probably does not care.  It’s not a biggie, after all. 

And now the same Prime Minister is telling us we have nothing to worry about.  He simply is not trustworthy on this matter.

The way the proposed legislation is structured, the police, the Security Intelligence Service and other investigative agencies–including information requests from the United States, Canada, Australia and the UK–would need to go through a warranting process, proving probable cause before the GCSB could be commissioned to spy upon particular New Zealand citizens.  In other words, the GCSB would be simply an “order taker”.  But–and here is the big but–in order to undertake such tasks the GCSB would need to create the data infrastructure and data storage capability in order to carry out such commissions on behalf of other agencies when they arise.   

In the United States the snooping agencies have hoovered up all the data, analyzed it, then, “wink and nod”, sidled up to the relevant investigative agency such as the FBI and “suggested” that they might like to get a warrant to investigate Joe Blow, after the fact.  This makes a mockery of the warranting check-and-balance.

Moreover, there is something creepy and overtly dangerous about a government actually capturing and storing every electronic communication of every citizen, “just in case”.  Imagine thirty years ago the outcry were the government of the day to have had (and be exercising) the capability to copy every letter you sent in the mail and store them in a vast secret library just in case they wish to investigate you some time in the future.  That is precisely what appears to be happening now with respect to private phone and internet communications–at least in the United States–and if there, no doubt here, since New Zealand is obligated to participate in the US spying activities with respect to its our own citizens.  

When the NZ Law Society is objecting strongly to the proposed laws it is time for every citizen to sit up and take notice.  This from the NZ Herald:

The Law Society has made a stinging attack on proposed law changes governing the GCSB spy agency, saying they effectively transform it from a foreign intelligence agency to a domestic one without any justification being given. . . . The Law Society submission, written by Rodney Harrison, QC, says: “It is difficult to identify the pressing and substantial concerns that the bill purports to remedy or address.” . . . .

He says the bill effectively transforms the GCSB from a foreign intelligence-gathering agency into an additional domestic spy agency.  “It seems that the underlying objective of the legislation is to give the GCSB powers it lacked previously: the power to conduct surveillance on New Zealand citizens and residents. No explanation or justification for the conferral of this power is given.”

We need law with clear constraints as to what the New Zealand Government is forbidden to do, not “positive” law about  what is may do if it chooses.  Until we see such overt, bright line constraints put upon the Government in this matter, we will not be at all supportive.  And if the Government is unwilling or unable to put those legislative constraints in place, then our worst suspicions will be warranted.

Nor will we be supportive of a hidden dungeon of data intercepted from citizens going about their lawful activities.  At the very least the dungeon would need to be subject to the Freedom of Information Act, so that each citizen could query and not only obtain what intercepted data the government were holding on taht citizen but also a statement of specific probable cause as to why the government is holding this information about that individual.

A government which is either unwilling or unable to bind itself to such constraints is to be rightly mistrusted and feared.

Postscript:  Australia is starting to back-pedal.  We hope this creates even greater pressure on New Zealand.

Crony Capitalists and Spy Networks

Walking the Corridors of Corruption

One of the inevitable ramifications of the vast trawling US electronic spying programme appears to be playing out in New Zealand.  We are parties to an intelligence sharing agreement with the United States and Canada, Australia and the UK, entitled “Five Eyes”.  The information shared includes–probably almost exclusively so–the kinds of electronic data on the activities of citizens now being collected ceaselessly by the United States. 

While the ostensible and immediate reason for the data gathering is to “get terrorists before they get us”, what governments can do, they inevitably will do.  Since it is becoming clear that they can now spy comprehensively upon the thoughts, intents, and actions of citizens via electronic media, it is axiomatic that eventually they inevitably will do so–despite the protestations that this was never was, nor is now, the intent.  Power corrupts and absolute power corrupts absolutely.  And there are few manifestation of absolute power more compelling than the panoptican state, where the government sees all and spies constantly and comprehensively on its own citizens.
 

Politicians are politicians.  They are inherently corruptible because they desire to gain and exercise power.  They need money to mount their campaigns.  They can easily become practitioners of the dark arts of crony capitalism, where paybacks are made to plutocrats in exchange for donations, gifts, and support.  It is a very small matter for influential crony capitalists to seek favours from beholden politicians which opens up access to the spying information treasure houses.  The rule is never, ever trust politicians without constant scrutiny and an elaborate system of laws, checks, and balances to reign in their native impulses towards corruption. 

In New Zealand it is possible we have seen one of the first examples of the US spy network being used to aid and abet some large donors to the Obama administration.  Of course, at the outset, we acknowledge that everything must be couched in the subjunctive mood because we are involved after all, with the “dark arts”.  Fatuous conspiracy theories can spawn one a minute in such circumstances. 

Mr Dotcom–a German national, now a New Zealand citizen–is in trouble with the FBI.  Why would a New Zealand citizen be facing indictments and extradition to the United States?  Because he was the owner of Megaupload–a Hong Kong based file sharing company–which had fallen foul (allegedly) of US copyright laws.  Dotcom and his lawyers allege that some select visitors representing Hollywood companies who just happened to be large donors to the President and his party were give a private audience with the Vice President, Joe Biden asking for federal policing action against Dotcom.   It was a no-brainer.  Dotcom was not a US citizen; he could “legitimately” be spied upon.  The FBI was sicced onto the case, and the international snooping via PRISM and related US government spying programmes commenced. 

Via Five Eyes, the New Zealand spying agencies were roped in and involved.  Eventually, on behalf of the FBI, the NZ police conducted an FBI-style early dawn raid on Dotcom’s house arresting everyone and seizing as much property as they could carry away.  Unfortunately for the FBI and the US authorities, the New Zealand High Court has shredded much of the case for extradition.  The authorities have been deemed to have acted illegally at some critical points.  Their case is teetering.

The NZ Herald has reported thus on the US PRISM connection with the US case against Dotcom:

Mr Dotcom, who faces extradition to the US on charges of copyright violation, said he believed the GCSB sifted through Prism data with his details prior to the arrest. “It certainly did involve Prism. GCSB relies heavily on US spy technology. The Five Eyes have one brain and it sits in the US.”

Papers released in the Dotcom court case support the links to the Five Eyes network but crucially have the name of the intelligence system doing the actual spying deleted. The papers were released after it emerged the GCSB illegally spied on Mr Dotcom in the lead-up to the unlawful raid in which he was arrested. 

Documents show analysts tasked with organising the spying marked it as associated with the Five Eyes network. One document, classifying it as “Secret”, listed the five member nations and stated: “Please enter into [name of system redacted] and mark as priority.” The accompanying list is called “Selectors of Interest” and details a long string of information similar to that used in Prism. It includes cellphone numbers, driver licence details, email addresses, passport numbers, internet protocol and real world addresses.  Another document was headed up “Top Secret” and “rel to NZL/FVEY” (New Zealand/Five Eyes). It referred to “traffic volume from these selectors”, showing information was intercepted.

Here is the problem: a capability set up to focus upon terrorists appears to be morphing to allow crony capitalists to lever the US government to spy on a commercial rival and to utilise the police powers of the Federal government on their behalf.  Not a terrorist in sight.  This is what President Obama is calling “modest encroachments on privacy”.  Yes, they remain modest until you become the target.  Becoming a target may well be at the behest of those who do not like you and who have access to the ears of the government.  The easiest access is enjoyed by those who have money and who “donate”.