Peace Researcher has, for many years now, publicised the electronic spying of the NZ Government Communications Security
Bureau (GCSB), principally via its civilian telecommunications satellite interception spybase at Waihopai (Marlborough).
We have exposed New Zealand’s role, via the GCSB, in the top secret UKUSA Agreement, which dates back to the late 1940s
and which divides the world up, for intelligence gathering and sharing purposes, between the electronic spying agencies
of the UK, USA, Canada, Australia and NZ (the US National Security Agency – NSA - is the dominant partner). We have
publicised the groundbreaking research by the likes of Duncan Campbell and New Zealand’s own Nicky Hager in unearthing
Echelon, the code name for a project run through the civilian telecommunications satellite interception spybases of the
UKUSA agencies, including Waihopai. Echelon searches the huge volumes of civilian e-mails, phone calls, faxes, etc, etc,
to find “key words”, which are then sent undigested to the NSA for its own purposes. This is the driftnet school of
spying. PR has followed for years the revelations about the intelligence gathering methods of both the Security
Intelligence Service (SIS), NZ’s better known spy agency, and the Police, who play a largely unacknowledged role in
political spying. We learned a lot about the bungling modus operandi of both the SISsies and the cops as a result of the
cocked up 1996 break-in at the Christchurch home of activist, Aziz Choudry, and subsequent events and court cases. And
we have written about the drive by American and British Intelligence agencies and police forces for yet greater spying
powers against their own citizens, culminating in the truly draconian Regulation of Investigatory Powers Act, which came
into effect in Tony Blair’s Cool Britannia, in 2000.
All of this is now being taken an ominous step further in New Zealand. The legislation is in the public eye now, but
it’s been a decade being insidiously prepared by our foreign spymasters, our spies and cops, and the faceless officials
keen to do their bidding. Once again the dirty work at the cross roads was uncovered by Nicky Hager, the Babyfaced
Assassin of global researchers (Nicky can’t help himself on this stuff. He’s been telling us for years that he’s
finished with spies and spybases, that he’s moved on to campaigning for native forests and exposing public relations
transnationals, from writing “Secret Power” to writing “Secrets And Lies”. And yet he still keeps digging up these
particularly smelly old bones that the dirty dogs of the secret world have buried away). Nicky broke the story in the
Sunday Star Times (29/10/00; “A Tangled Web”). He revealed that he had realised that something was up when reading the
excellent British magazine, Statewatch (see below for details. Ed.). As a result, he had made a number of Official
Information Act (OIA) requests, and had pieced together what was going on behind closed doors. Nicky obviously had
better luck than we (Anti-Bases Campaign) did. Quite independently, in the 1990s, we read the same material in
Statewatch and also sent in OIA requests to officials and Ministers in the previous unlamented National government. We
got nowhere. All the more reason to congratulate Nicky.
The FBI Is Behind It All: A Parallel UKUSA Spy Network
What he discovered was this. The US Federal Bureau of Investigation (FBI) began campaigning for new surveillance laws in
the US, in 1991. It published a 1992 report entitled “Law Enforcement Requirements For Surveillance Of Electronic
Communications”, which expressed concern that the explosion in new methods of telecommunications made spying harder than
before. The FBI produced an updated version of these Requirements, in 1994, and they became the basis for new
surveillance legislation signed into law by President Clinton that year. US civil liberties groups have fought that law
ever since. Simultaneously, the FBI began pushing for other countries to adopt the 24 point Requirements, in the
interests of standardised electronic spying systems (which greatly assists US Intelligence agencies and police forces).
In 1993, the FBI organised an international meeting at its Quantico headquarters (near Washington DC) to promote the
Requirements. Confidential European Union (EU) papers show that the meeting was attended by representatives of the 15 EU
countries, plus Canada, Norway, Hong Kong, Australia and New Zealand. In 1995, the EU governments secretly agreed to
adopt the Requirements without any reference to their national parliaments, something which has caused considerable
controversy ever since.
The next move was a Memorandum of Understanding to extend the US-EU agreement to the non-EU countries. The group
responsible for pushing this through is the bland sounding International Law Enforcement Telecommunications Seminar
(ILETS). Founded by the FBI in 1993, its membership is the same 20 countries which first met in Quantico that year. New
Zealand has been represented at ILETS meetings, by Police and Intelligence agency staff (for example, in Canberra in
1995 and Ottawa in 1998). EU documents reveal that, by 1996, Australia and Canada had formally supported the
International User Requirements (IUR - which are identical to the original FBI Requirements) and that Hong Kong and New
Zealand were studying how to do likewise. NZ officials began work in 1997 on legislation to enforce the IUR. The outcome
is the proposed legislation currently before Parliament. The Government has denied that there is any connection, but
Assistant Police Commissioner Paul Fitzharris did admit, in October 2000, that the “proposed legislative changes would
bring New Zealand into conformity with most, if not all, of the International User Requirements” (ibid).
There is one central point to recognise in the international background to this – the core of ILETS is the five
countries which comprise the UKUSA Agreement – the US, UK, Canada, Australia and New Zealand. What this system
establishes is two parallel spying networks set up by these countries (or, rather, their Intelligence agencies) –
Echelon, for international spying, primarily to benefit the US; and ILETS cooperation for coordinated domestic spying on
the people within each member country. Once again, a US agency (the FBI) was the driving force behind it.
Mr Swain, You’re A Pain In The Brain
(Actually, we think that he’s a pain in a quite different part of the anatomy, but that doesn’t rhyme). In this country,
the front man for this drive is Paul Swain, the Minister of Information Technology and Associate Minister of Justice.
Back in July 2000 he announced that he’d instructed his officials to prepare a report on granting the Police extended
powers to intercept e-mail (currently they can tap phones, authorised by a High Court warrant, but have no such powers
with e-mail). Swain announced that he was in favour of giving the Police those extended powers, by way of an amendment
to the Telecommunications Act, bringing NZ into line with the US and Britain. In fact Swain took it a lot further than
that, and what emerged, in November 2000, has become popularly known as the Swain Bill.
Its actual title is the Crimes Amendment (No. 6) Bill. The Bill contains clauses outlawing, for the first time, computer
hacking. Sounds laudable, doesn’t it? But a Supplementary Order Paper (SOP) to that Bill specifically exempts the
Police, and the SIS and GCSB from its provisions. What does that mean?
It means that the Government is giving the Police, SIS and GCSB expanded powers to intercept and spy on New Zealanders’
electronic communications – our e-mail, in other words. A separate Bill, an amendment to the Telecommunications Act,
will force Internet Service Providers (ISPs) to cooperate with the spying (this Part Two of the package has yet to be
introduced into Parliament). In the usual procedure for governments wishing to sneak in controversial laws, particularly
those concerning Intelligence agencies, the Bill and its SOP (number 85, to be exact) were rushed through over the
summer holiday period – submissions closed in February 2001.
Governments always claim the worthiest possible motives for every new infringement on their citizens’ civil liberties.
This package of Bills and the SOP is no different, being touted as necessary to fight cybercrime, drug dealing,
paedophilia, you name it. “The innocent have nothing to fear”, is always the rallying cry. Paul Swain dismissed Nicky
Hager’s revelations in the Sunday Star Times: “He goes after the big conspiracy theories, does old Nicky. I think it
comes from reading too many spy novels” (Press, 30/10/00). Swain also promised a full public debate before any changes
were made – that has been conspicuous by its absence (as usual, in matters of this nature).
And the Swain Bill is not enough for the Police – in February 2001, it was revealed that they lack the technical
capacity to tap the Vodafone digital mobile phone network (cellphones with the prefix 021). Telecom (cellphones with the
prefix 025) has modified its mobile network to make it interception capable. The Police, according to papers released
under the Official Information Act, want a law to make all future phone networks interception capable (at the companies’
expense), but were hopeful that they could negotiate a settlement with Vodafone.
“A Wolf In Sheep’s Clothing”: Greens Oppose The Bill
In Parliament, the Greens were the only party to come out strongly against it. Keith Locke MP said, in a speech in the
House (16/11/00):
“This Bill is a wolf in sheep's clothing. The Minister put stress on the Bill as an anti-hacking measure and
anti-interception measure and, of course, we support any bill opposed to hacking or interception. In fact, we asked the
Minister to put such provisions in a separate Supplementary Order Paper. But those few clauses against hacking and
interception amount to about only one page of this 12 page Bill. The rest of the clauses are a major assault on our
privacy … Mr Swain said this measure will enable agencies to catch criminals. No one is disputing that we might be able
to catch a few more criminals through such interception. Surveillance cameras placed on every street in the country
might catch more criminals, but we always have to ask ourselves what is the cost to our privacy. Do we really want to
live in a surveillance society? Electronic interception is not just a question of modernising Police and security
agencies' powers beyond their present letter opening and telephone tapping, as has been made out. Computer interception
is a whole different ball game.
“For example, the Carnivore system that the FBI uses allows for key word searches through vast amounts of e-mail. In
Britain they have a system called RIP - very appropriate - where a kind of black box is attached to the servers of
Internet providers with the traffic being routed through to M15 (internal security and Intelligence agency. Ed.). There
are several problems. The first problem is that the e-mails of many ordinary people will be intercepted by the system
just because they accidentally use the wrong key word and their messages will be scrutinised. This has already happened
with the Echelon system of which the Waihopai station near Blenheim is a part. Here e-mails and faxes passing through a
specific satellite are intercepted through key word searches. Under this SOP the Government Communications Security
Bureau, which runs Waihopai, will be allowed to increase its power, including surveillance within New Zealand and not
just through that specific satellite. Supposedly, the Government Communications Security Bureau is allowed to spy only
on foreigners - foreign people and foreign organisations. According to this Supplementary Order Paper though, if we look
at the definition, organisations like Greenpeace or an international trade union federation would fit under this
definition of a target. People can say, ‘Well, dissenters aren't a target’, but in New Zealand they already have been.
The Security Intelligence Service did target anti-free trade activist, Aziz Choudry, and the Christchurch Police did
recently target one of his colleagues, David Small. Both men later won compensation claims in the court against that
surveillance. Internationally, the Echelon electronic interception system has been used to spy on Greenpeace.
“…we have already found police abusing their powers when it comes to computers. Just this week the Police Complaints
Authority reported on a policeman who accessed a Police database for his own purposes - that is, to track down a tenant
who owed him rent. Paul Swain talked about this being somehow compatible with e-commerce. In fact, the Echelon system
has been criticised, most recently by an official French parliamentary inquiry, for being used for economic espionage
against France by the United States and British multinationals. So this measure will undermine e-commerce and the trust
that is necessary for that form of commerce. We also know that the Police do sometimes bow to the Government's will
against the dissenters as they did when they moved on pro-Tibet protesters when the Chinese premier visited New Zealand
last year (1999). There is great concern about this bill in the Internet community and they do not see there is any need
for these measures. They are rightly worried about Police and security agency surveillance because the Internet is a
hotbed of dissenting voices - free thinkers challenging orthodoxy, challenging Governments, and challenging the misuse
of power. These cyber citizens say: ‘Leave us alone. We're not criminals and you won't be able to use this system to
effectively catch criminals. The people who will be caught will be us’. The people who are operating cyberspace, often
with dissenting voices, want to be left alone.
“Criminals can easily avoid this sort of interception. They can use code words, they can use encryption devices, they
can use temporary Hotmail addresses, they can use re-routers, and they can use unlisted mobile phones. Any criminal
worth his salt will get around this system. The people who will be caught will be ordinary people. Earlier this year
(2000) the New Zealand Press Association was told by Detective Sergeant Cam Stokes that he knew of no instances when a
crime has been plotted using e-mail and said that criminals would be cautious about what they said online. This Bill is
not driven by a real need to catch more criminals. It is driven by us listening particularly to the FBI, the British
spooks, and our Aussie cousins who are telling the Police and security agencies what they are doing and that we should
do it too.
“It is also a problem that the ‘how’ involved in this Bill is not being discussed along with it. The ‘how’, that is the
methods that will be used to actually do this interception, will be contained in amendments to the Telecommunications
Act, which will not come in until after this Bill has been passed. Until people can discuss the ‘how’ question, the use
of the Carnivore system or the Regulation of Investigatory Powers (RIP) system, or whatever the New Zealand agencies are
considering, one cannot really understand the danger to privacy involved. So by dividing this discussion into two, one
now, and one later next year (2001), we will not have proper democratic discussion. This Bill involves a serious
expansion of Police and security agency power. It is a real threat to all New Zealanders. It is not needed. The Green
Party is against it. The Green Party will be campaigning on this issue… The Government must prove a case. If the
Government wants to extend powers like this, and intrude on people's privacy, it has to advance a case. Where is the
case that criminals are using these means to any significant extent that requires such draconian legislation that will
so interfere with our privacy? We do not think it is needed. The Green Party will be opposing this bill.
“We are disappointed the Government did not exceed to our request to do two things - firstly to divide the Supplementary
Order Paper to separate the anti-hacking and the anti-interception element of it, that we wholeheartedly support, which
increases our privacy. The Government should have separated those issues out from the other provision that seriously
undermines our privacy - that is giving extra powers to the agencies. Secondly, the Government should have postponed any
discussion of these extra interception powers until it has brought in the Telecommunications Amendment Act so that we
know exactly how the Police and the security services intend to go about their business in this way. I hope the other
parties in this House will support the Greens position. This is not just a Green Party issue. It goes right across the
whole community - one can sense that. If one inhabits cyberspace at all, one can see that it is coming from people of
different persuasions who do not want their privacy intruded on in this way without any good reason, and the Government
has not given a good reason yet”.
Give Them The Old One Two
Both Keith and Nicky have hit one particular nail on the head – the Government is bringing this insidious legislation in
as a two part package. The Crimes Amendment Bill (No. 6) and its Supplementary Order Paper (No. 85) simply set the
scene, and attempt to obfuscate the issue. The yet to be sighted Telecommunications Amendment Bill will follow it up
with the proposed means to do this electronic spying, and the compulsion inflicted on Internet Service Providers (ISPs)
to become unwilling collaborators in this covert State surveillance.
The Greens have been true to their word, and campaigned hard on the Swain Bill. For example, for the second consecutive
year, both Keith and Party co-leader, Rod Donald MP, played an active role in the January 2001 Waihopai spybase protest
(see details elsewhere in this issue. Ed.). Both used their speeches, in Blenheim and at the gates of the base, to
launch a campaign of opposition to the Bill. Keith said: “We’re worried that ordinary people will be caught in this
system if they use key words. The real criminals will be caught using traditional policing methods. Really, the purpose
of these agencies run by the United States is to spy on people who are dissident to the agendas of the multinationals
and of the nations who back them. It’s open season on protesters. But I think we all have the right to protest and we
all the right to privacy. This system is betraying that” (Press; 22/1/01; “MPs warn against bill: Interception move
‘open season on protesters’”).
Mike Frost, Former Canadian Spy, Opposes The Bill
Opposition also came from overseas, from a man who used to spy for a living, spending over 30 years in Canadian
Intelligence. As readers will know, ABC is bringing Mike Frost to New Zealand on a national speaking tour later this
year (see flyer enclosed with this issue. Ed.). So we had been in touch with him, but not about domestic details such as
the Swain Bill. He found out about that all by himself, and contacted us, unsolicited, to express his great alarm about
it. “It scares the hell out of me” (e-mail to ABC; 27/11/00). We asked him to commit his thoughts to paper, and he duly
obliged:
“As a Canadian who earned a living for 34 years in the world of electronic espionage and intelligence gathering I have a
number of concerns regarding the ‘spook’ legislation proposed by Communications Minister Paul Swain. Without wishing to
interfere with New Zealand’s domestic affairs I will try and explain how this legislation has the potential to impact on
me as a Canadian citizen who just happens to be a retired spook.
“We all know that the Internet has no borders and does not discriminate between the bad guys and the good guys.
Consequently, Canadian international communications, using the Internet and satellites as the methods of transmission,
are just as easily intercepted by, for example, the New Zealand Defence Satellite Communications Unit, Blenheim
(Waihopai for short), as are the international communications of New Zealand or any other country for that matter.
Therefore, any new legislation in your country concerning the Internet has the potential to impact not only New Zealand
but other countries as well.
“The Canadian government has a database that contains ‘personal information’ concerning its citizens. It is my opinion
that the Government of New Zealand probably has a similar database, I mean why wouldn’t they? The Government of Canada
will not acknowledge the existence of this database but I know it does exist because I used to provide input to it. By
definition ‘personal information’ includes such things as: name, address, telephone number, age, family status, sex,
sexual preference, occupation, medical and health records, dental records, assets, liabilities, income, payment records,
driving records, credit card information and history, bank records, criminal records and so on. I think you get the
point.
“Most American eavesdropping sites world-wide are equipped with sophisticated listening devices which make the
interception of radio and satellite signals a rather simple task. The Waihopai site has been firmly entrenched in your
country for years and it’s a safe bet that they have an extensive data base containing ‘personal information’ concerning
many, many citizens of New Zealand. This database would probably be available in whole or in part to the government of
New Zealand.
“The Cold War is over and priorities have changed. No longer do we have to worry about an arms race with the former
Soviet Union. The emphasis has switched to the gathering of economic and industrial intelligence. (Apart from terrorist
targets which always have been and always will be at the top of the priority list). The old method of collecting only
what was needed has been replaced with a ‘collect it all now and sort later’ technology. With antennas now pointed
inwards at ourselves, so to speak, it is inevitable that domestic, private and personal information can and will be
intercepted, if not by design then at least by error. By collecting this type of information is our right to privacy
being violated? Are governments such as yours and mine guilty of breaking the law? From the spy base at Waihopai is the
US guilty of breaking New Zealand law? I don’t know, but if not they are at least guilty of breaking the spirit of the
law.
“Are the citizens of New Zealand comfortable with that? Are they aware that the US, as the controlling authority of the
five country (UKUSA - United States, United Kingdom, Canada, Australia and New Zealand) Echelon espionage system, can
and does routinely collect, on New Zealand soil no less, numerous New Zealand targets of which personal information is
only one of many priorities?
“What should concern New Zealanders is that it is only after evaluating, assessing and in some cases editing, would the
US make some, never all, of this information available to the Government of New Zealand.
“Do we, and by we I mean the member nations of the Echelon system, want to make it easier and legal for governments to
invade our privacy at will?
“It has been claimed that the interception of personal information is necessary in order to assist law enforcement
agencies in their quest to catch the bad guys. That may be so, but the scary part is that there are no safety nets in
place to protect the innocent people that can and will inevitably fall through the cracks. The question begs to be asked
- Is it OK for government agencies to routinely invade the privacy of innocent people in order to catch lawbreakers?
This thorny question must be answered by the people, not by a handful of politicians.
“Clearly legislation has not been able to keep up with the rapid growth of wireless communications and electronic
technology. Something must be done, but is giving governments and law enforcement agencies an unprecedented increase in
invasive and intrusive powers the answer? I don’t think so. What governments must be made to do is legislate strict
guidelines as to what can and cannot be intercepted. We the citizens of the free world must be convinced that there is
appropriate legislation in place to prevent innocent people from getting caught in the huge trawling net of electronic
eavesdropping. To date that protective legislation does not exist. Indeed, the Canadian Minister of National Defense
(responsible for our spy agency, the Communications Security Establishment) said some six years ago that we must just
‘trust’ our government when they say they would never, ever invade the privacy of innocent Canadians by intercepting
their communications. Well, I have worked at the coalface of Intelligence and I know that such a statement is pure
hogwash.
“I know for a fact that spy agencies in the US, the UK, and Canada (and possibly New Zealand and Australia) have either
spied on, or have been given material resulting from spying on, the late Princess Diana, Prince Charles, the Pope, the
late Mother Teresa, at least two Cabinet Ministers of the Thatcher Government and a former Canadian Prime Minister’s
wife just to name a few.
“If people such as these are not immune from being spied on where does that leave common folk such as you and me? A
scary thought indeed” (ABC press release; 23/1/01; “Former Canadian Spy Criticises Swain Bill; New Electronic Spying
Powers Ripe For Abuse”).
Privacy Commissioner Not Happy About Bill
And opposition came from within the NZ Establishment. In late 2000 the Privacy Commissioner, Bruce Slane, presented the
Government with his report on the Crimes Amendment Bill, and he was unsparing in his criticism:
“Plans to give Police and spy agencies the power to hack into computers and intercept electronic communications will
lead to unprecedented snooping, the Privacy Commissioner has warned. In a report calling for limitations to be placed on
law enforcement bodies, and greater accountability, Bruce Slane opposes the ‘pernicious’ practice of Police hacking into
databases. He has recommended that if Police are allowed to hack into personal computers, they should need more than a
search warrant…
“Mr Slane reported to the Government on the changes before Christmas, welcoming the clamp-down on unauthorised access to
computer systems but questioning whether there would be enough controls on state agencies. ‘It is easy to think of the
interception of communications or the accessing of a computer as affecting only the target of Police interest,’ he
wrote. ‘However ... many other people [are] affected by interceptions or computer-related searches. Trawling or browsing
through a myriad of personal information [would be] authorised on an unprecedented scale. A single interception warrant
can, for instance, authorise listening into hundreds of conversations involving scores of individuals beyond the
targeted individuals’.
“The new law would clear the SIS to carry out a sting on a database once the agency had an interception warrant. Police
would need only a search warrant. Mr Slane did not believe that a search warrant, issued by a justice of the peace, was
strong enough. ‘Search warrants are not designed for regulating covert investigations or surveillance,’ he said.
‘Hacking into a person's computer should be, if allowed at all, very much a last resort. ‘Search warrants, unlike
interception warrants, do not require the intrusive technique to be used only as a last resort’. Mr Slane said yesterday
that the Police should have to obtain an interception warrant from a judge too. Hacking into a computer and intercepting
electronic communications was far more intrusive than Police saying, ‘We have got some evidence this guy's got stolen
property’.
“The report also calls for the GCSB to be omitted from the exemption clauses until it becomes a statutory body like the
SIS. Prime Minister Helen Clark has said the Bureau would be written into law this year. Mr Slane said it should not be
given more rights until the public was aware of its accountability and powers. ‘Unlike the SIS, any interceptions which
may be carried out are not subject to a statutory warrant process. ‘This will not be put right until the GCSB's
establishment is set out in legislation’” (New Zealand Herald; 3/1/01; “Police snooping needs tight rein says report:
Electronic surveillance by State agencies worries the Privacy Commissioner, who is calling for limitations on their
powers”; Eugene Bingham).
ABC takes partial credit for this call by the Privacy Commissioner for the GCSB to be written into law. When he called
for submissions, in the 1990s, on how NZ’s Intelligence agencies should relate to the Privacy Act and its principles,
the ABC’s Bob Leonard put in valuable work with him stressing the (literally) lawless nature of the GCSB.
Bruce Slane’s full report is well worth reading. “Crimes against personal privacy and crimes involving computers:
Intercepting private communications and accessing computer systems without authorisation. Report by the Privacy
Commissioner to the Minister of Justice on Supplementary Order Paper No 85 to the Crimes Amendment Bill (No. 6)”,
13/12/00; which can be found in the “Reports and Submissions” section of the Privacy Commissioner’s Webpage at
http://www.privacy.org.nz/slegisf.html
ABC’s Submission Against Bill
ABC was amongst those to make a submission to the Law and Order Select Committee. For the record, here it is:
“Introductory statement:
“The Anti-Bases Campaign has opposed the Government Communications Security Bureau (GCSB) and its Waihopai station
actively since 1988, shortly after the construction of the base was announced. This submission deals with the provisions
of the proposed Bill and SOP. But it should be read in the context of our total opposition to the very existence of the
GCSB, its secretive intrusions into personal privacy and its close ties to the international Intelligence community
under the UKUSA Agreement.
“1. GCSB’s Powers Of Interception Should Be Cut, Not Expanded
“The interception powers of the GCSB should not be exempted from Section 216B of the Crimes Act. This Government
‘agency’ owes its existence to the Royal Prerogative, not to the actions of a representative Parliament. To expand its
already extensive powers of electronic interception and consequent intrusion into personal privacy is totally
unjustified. We understand that this Government intends to bring the GCSB under its own law later in 2001. The
Government should not contemplate altering the powers of the agency until and unless that Bill has been duly debated and
passed into law. Parliament as a whole has never had oversight over the GCSB or played any role in its creation. It is
patently absurd and undemocratic now to ask Parliament to pass a law expanding its interception powers when the existing
powers of the GCSB do not exist in written law.
“The GCSB’s methods of interception and covert links to other international Intelligence organisations are known only to
the extent that independent research has revealed them (see “Secret Power” by Nicky Hager, 1996). Proposed changes in
the Telecommunications Act will presumably cover the expanded methods of interception that would be granted by the
Crimes Amendment Bill. The cart is clearly before the horse in this legislative mess.
“We object to the current electronic interception powers of the GCSB, including recording of telephone conversations via
satellite, for which no warrants are required from any minister or agency of government. That state of affairs would not
be changed by the Crimes Amendment Bill, indeed, it is proposed to expand the scope of the agency’s powers (using
interception by as yet unknown methods), again with no reference to any need for interception warrants.
“We note that these concerns are reflected in a recommendation of the Privacy Commissioner in his report to the Minister
of Justice on SOP 85 (January 2001):
“’As a prerequisite to granting an exemption for GCSB from the prohibition on use of listening devices, the Bureau
should: (a) be placed on a statutory footing; and (b) be subject to a statutory warrant process for the undertaking of
any intrusive activity, particularly where that activity would, if performed by any other person, constitute a breach of
the law’”.
“2. Foreign Vs Domestic Intelligence
“The GCSB flatly denies that it spies on New Zealanders by intercepting their phone, email and fax messages. But in 1997
when ABC accused the GCSB of listening in on Kiwis who happen to be on one end of an international communication, we met
a roadblock. We asked the then GCSB director, Ray Parker, for a definition of ‘domestic intelligence’ but he refused to
answer, invoking instead the infamous section 6(a) of the Official Information Act of 1982. He refused to answer on
security grounds.
“Why does the GCSB insist that it engages only in the gathering of ‘foreign intelligence’ and then takes cover when
confronted with the realistic conclusion that such intelligence gathering must involve spying on New Zealanders as well
since they are often on one end of overseas communications? The reason is that the GCSB doesn’t want our citizens to
know they are being spied upon at Waihopai. Now we have the Crimes Amendment Bill that would give similar powers of
domestic spying to the GCSB [section 305ZFC(2)] by hacking into private computers. No warrant is required for the
interception, only Prime Ministerial authorisation and consultation with the Minister of Foreign Affairs and Trade and
vague and sweeping ‘reasonable grounds to believe…’. It’s a blank cheque for GCSB personnel. Once a foreign organisation
or foreign person has been ‘specified’ as a target for spying (possibly based on earlier interceptions by Waihopai)
there are no time limits or any other restraints on the GCSB’s intrusion into the affairs of that organisation or
person. And as with the interceptions at Waihopai, such covert computer access would inevitably involve the
communications of New Zealand citizens with foreigners.
“3. Can The Spies Be Trusted To Follow The Rules?
“The simple answer is NO, we cannot trust anyone who has powers of covert interception at their command to follow rules
unless they are being carefully scrutinised, and even then there is plenty of room for doubt. As the Privacy
Commissioner emphasises in his detailed recommendations for ‘enhancing interception safeguards’:
“’…beyond the very limited (although important) involvement of the judiciary there is no independent scrutiny or audit
of what actually occurs after the warrant is issued and it is desirable that this gap be filled if the public are to
have [confidence] that State surveillance is always conducted according to law. (Note: the word ‘confidence’ was omitted
from our draft of the SOP)’.
“The ABC believes the Commissioner’s concerns are well justified. The above quote from the Commissioner’s report was
presented in the context of law enforcement agencies. But it applies equally to the authorisation by the Prime Minister
of GCSB interception (warrants do not apply to the GCSB).
“The GCSB’s counterpart agency in Canada is the Communications Security Establishment (CSE). Testimony from a former
long-serving officer of the CSE, Mike Frost, is highly relevant to the question of ‘trust’ of Intelligence agents.
“’…a lot of communications traffic goes through Ottawa – from Newfoundland to Vancouver. So many times, just for the
heck of it, Frost and his colleagues would turn the equipment on and ‘listen in’, plain as day, on anything their
electronic gear would catch. Nobody would question it. There was no watchdog. They just did whatever they felt like
doing. …they were intruding on the privacy of the people they were supposed to protect’ (from “Spyworld” by Mike Frost
and Michel Gratton, Doubleday, 1994, pp. 21-22).
“’…the second part of CSE’s mandate [is] that ‘it deals with foreign intelligence; it allows CSE to intercept and
process foreign communications between Canada and other countries….This part of the mandate takes up most of CSE’s
resources and is more controversial because its intrusive nature has the potential for violation of the rights and
freedoms of Canadians’” (Frost and Gratton, p. 34).
“The GCSB operates within the same Intelligence network as the CSE, in an atmosphere of maximum secrecy... We have every
reason to believe that Mike Frost’s descriptions of the day-to-day spying activities in the CSE, without oversight,
apply equally to the GCSB. To this day, no government within the UKUSA grouping has ever had any direct oversight role
over the actions of its agents. Indeed, it is only in recent years that our elected representatives even knew they
existed thanks to a few dedicated researchers and ex-spies of conscience (like Frost) who spilled the beans.
“In 1998/99 New Zealand’s Inspector-General of Intelligence and Security reviewed the rules under which the GCSB
conducts its spying. His report (dated 28 April 1999) contained several conclusions in which he approved of the Bureau’s
rules and methods of operation, the value of its intelligence activities, its relations with other Intelligence
partners, its protection of the privacy of New Zealanders and so on. That report and his Annual Report (22 December
1999) blandly assured New Zealanders that their private communications are not spied upon and that the NZ Government and
the GCSB are entirely in control of the interception activities and all of the raw intelligence at Waihopai and
Tangimoana. But he does not directly deny that the intelligence reporting systems at Waihopai are automated and directly
linked to those of the UKUSA Intelligence partners. He cannot deny that because he is not privy to the inner workings of
the system. Nor does he directly deny that the ‘foreign’ satellite communications of New Zealanders are spied upon for
the simple reason that they are likely to involve foreigners on the other end of the line. He cannot deny it because
such two-way communications, be they by telephone, fax or email, are by definition ‘foreign’ and thus fair game at
Waihopai. He never mentions this simple fact in his report but goes on to conclude:
“’I am sure that the GCSB operations have no adverse or improper impact on the privacy or personal security of New
Zealand citizens. I am satisfied too, that our Intelligence partners are as concerned about the privacy and security of
New Zealand citizens as their own’ (Annual Report, 1998/99, p. 10).
“Mike Frost’s first-hand revelations about domestic spying by the CSE were first published in 1994. The
Inspector-General should have read his book.
“In short, we cannot trust the spies. To expand their powers of interception to computer hacking is totally
unacceptable. Existing oversight by the Inspector-General is effectively a rubber stamp. Indeed, it is doubtful that any
oversight could ever be effective given the impenetrable nature of the international Intelligence community of which the
GCSB is a part.
“4. Summary
“The Anti-Bases Campaign supports measures contained in the Crimes Amendment Bill to make computer hacking illegal. But
exemptions must not be given to the Intelligence agencies and the police. The exemptions should be removed from the
Bill.
“Our submission has focused on the GCSB. But our concerns apply to the Security Intelligence Service and the Police as
well. The ABC believes that increased powers of surveillance and interception would further erode the fundamental rights
of all New Zealanders to engage in research, education and non-violent protest whether or not the Government agrees with
them. Exercising these democratic rights must not lead to increased intrusions into privacy based on official suspicions
of terrorist or criminal intent. Terrorist and criminals will find it easy to evade the prying eyes and ears of the
spies and police. Innocent private citizens will not”.
Another excellent submission is that of GATT Watchdog, whose best known figure, Aziz Choudry, was the target of the
legendary bungled 1996 break-in by the SIS. Not surprisingly, GATT Watchdog’s submission concentrates on the SIS, and on
the less well known political intelligence gathering by the Police, which was brought to light in the successful damages
claim against the Crown by David Small (who caught the spooks breaking into Aziz’s house, and who became the subsequent
target for Police harassment). This nicely complements the ABC submission, which concentrates on the GCSB.
If you’d like a copy, contact GATT Watchdog at Box 1905, Christchurch. Ph (03) 3662803; fax (03) 3668035 e-mail:
notoapec@clear.net.nz
This campaign still has some distance to run. Apart from the Parliamentary submission process, there have been public
meetings and protest actions. Meetings have been held in Auckland and Christchurch, with Green MP Keith Locke speaking
at both. Also in Christchurch, ABC organised a small but militant lunch time picket of the anonymous SIS office (hidden
in a building at 70 Gloucester Street. It’s on the 3rd floor, the only one with no identifying markings, and curtains
always drawn). This picket was well covered by local TV news. The mainstream media have picked up the story – the
Listener ran a cover story on it (10/3/01; “I Spy”, Bruce Ansley), and TVNZ’s Assignment devoted a programme to it
(5/4/01).
The Swain Bill (which is actually a package of measures) represents a dangerous escalation in the powers of both
Intelligence agencies and the Police. As such, it is a major further assault on the civil liberties and privacy of all
New Zealanders. It follows on from the two 1990s SIS Amendment Acts which gave that agency increased powers, a broader
mandate and retrospective legalisation of all its covert break ins. It is part of the package which includes the GCSB
Bill, introduced into Parliament in May 2001, accompanied by the glossy propaganda booklet “Securing Our Nation’s
Safety”, which glorifies the role of Intelligence agencies in “safeguarding our democracy”. The amendment to the
Telecommunications Act is yet to come.
Nor are the spies waiting for the legal right to hack into your computer, including deleting or altering files to cover
their tracks. Helen Clark, the Minister In Charge of the SIS, refused to confirm or deny that the SIS is already doing
that (which has the potential for the SIS to covertly set up individuals or organisations by planting/deleting/altering
material in their files: “For resaons of security I am not prepared to comment further” (NZ Herald, 16/5/01; “Law raises
fears of SIS set-ups: Legislation on hacking might let spies do more than just look at your data”, Vernon Small).
This story has still got a long way to go. We will keep you informed.
Britain: From Mad To Worse
Meanwhile, we need to note what is happening in Britain, whose highly draconian 2000 Regulation of Investigatory Powers
Act (RIP – what an appropriate acronym) sets the model for what the Government wants in NZ. There, Internet Service
Providers (ISPs) are being driven mad by techno-illiterate cops asking “stupid questions” (i.e. “What is a Hotmail
account?”) whilst trying to enforce the Act. As one ISP representative said: “At the moment, the big problem ISPs have
with the Police is their stupid questions. After a while, it gets expensive and unproductive –it’s a problem. It’s
always a problem, and it’s a very serious problem. My children at primary school are better trained on the Internet than
the local Police are”. But the RIP Act doesn’t go far enough for the secret British State. An August 2000 report, leaked
to the media, revealed plans to force all phone companies and ISPs to record all forms of communications in and out of
Britain – phone calls, mobile phone calls, faxes, e-mail, Websites and Internet activity – and store them physically in
archives for at least seven years, to be accessed at will by a huge range of Government agencies, namely MI5, MI6, GCHQ
(the three Intelligence agencies), Police, Customs and Immigration. The mind boggles and ISPs have already warned that
if this comes to pass, they will relocate outside of the UK. Today Britain, tomorrow New Zealand? Not if we have
anything to do with it.
Statewatch is the best publication on civil liberties in the UK and Europe. It can be contacted at Box 1516, London N16
OEW, UK. Ph (0044) 02088021882; fax (0044) 02088801727; e-mail: office@statewatch.org Website http://www.statewatch.org