Former GCSB Director Admits To Mass Surveillance Of NZers

Saturday, 7 March 2015, 12:22 am
Article: Alastair Thompson

This morning former GCSB Director Sir Bruce Ferguson was interviewed on Morning Report by Guyon Espiner about reports based on Edward Snowden documents about GCSB activity in the Pacific. His answers clearly confirmed mass surveillance of New Zealnders in the Pacific was taking place, directly contradicting statements made by the NZ Prime Minister in the lead up to the passage of a GCSB powers amendment act in 2013.

Specifically on the morning of August 19th 2013 Prime Minister John Key told press gallery reporters that in the event mass surveillance was found have been conducted by the GCSB, he and the director of the GCSB - his childhood friend Ian Fletcher - would resign. As this latest controversy develops a year and half later Fletcher has already resigned.

Interestingly at the time of the GCSB Bill's passage Sir Bruce Ferguson was quite critical of several aspects of it as shown in this Youtube Video of highlights from his appearance on a Nethui (InternetNZ conference) panel discussing the subject. Now however he is saying that the 2013 GCSB Act makes the mass surveillance by the GCSB of New Zealanders in the Pacific legal.

Radio New Zealand's latest Sir Bruce Ferguson interview followed yesterday's publication by the NZ Herald, Fairfax and Glen Greenwald's The Intercept of revelations from Nicky Hager (based on NSA documents leaked by Edward Snowden) relating to the GCSB spying in the Pacific.

You can listen to the interview here:

The interview is the first definitive on-the-record confirmation from a public official involved in the spy agency that mass surveillance of New Zealanders is taking place, and that complete unredacted data is being sent to the NSA for inclusion in its global surveillance databases. [click here to read a full transcript of the 7 minute interview]

Guyon: So New Zealanders personal information, emails, communications of some sort have found their way to the NSA?

Sir Bruce: If you read the new Act Guyon.

Guyon: I have read the new Act.

Sir Bruce: Well that is exactly what it is structured to allow for that there will at time to time be inadvertent collection, mass collection of these things information, but the Act specifies that they cannot then use that information, against NZ unless that they have specific reasons to do so.

While Sir Bruce later tried several times to fudge the issue of whether the data was filtered before sending, when he was asked the question for a third time he replied.

Sir Bruce: New Zealanders will not be targeted if there is no reason to be targeted. That is absolute in law, that right through my time no New Zealander to my knowledge was targeted, with the exception I guess of people, well that wasn't in my time - the Dotcom one - nobody was targeted illegally. It has to be done legally.

By which Sir Bruce is apparently saying no one in the GCSB ever looks up the NSA databases of data about New Zealanders unless they are authorised to do so legally, with a warrant. However this is not consistent with the Prime Minister's statements that there is no mass-surveillance taking place in the first place. Rather just that no New Zealand citizen will be targetted for data trawling later unless they become a person of interest and it is legally authorised.

This approach is entirely consistent with what we know about US intelligence practice from public statements by the CIA's Chief Technology Officer.

The public quotes from the article extract that follows were made before the Edward Snowden leaks became public in a speech to a technology conference in March 2013.

CIA Strategy: Collect All Data and Keep it Forever

When it comes to collecting information, the Central Intelligence Agency (CIA) wants it all. Forever.

The CIA’s chief technology officer, Ira “Gus” Hunt, told an audience at an industry gathering, the GigaOM Structure Data conference, on March 20 that the agency strives to gather every kind of communication that exists—text messages, tweets, emails, videos, etc.

“The problem of Big Data,” Hunt said, “is the following: the database of useless information is 500 million gigabytes, the database of useful information is 5K. Our problem is, which 5K?”

“The value of any piece of information is only known when you can connect it with something else that arrives at a future point in time,” Hunt said. “Since you can’t connect dots you don’t have, it drives us into a mode of fundamentally trying to collect everything and hang on to it forever, forever being in quotes of course.”

Prior to the release of the leaked Snowden papers and analysis Prime Minister Key made a statement warning the public not to believe what Nicky Hager was planning to reveal to them.

"My very strong advice to New Zealanders is discount massively everything you hear from Nicky Hager. He was wrong last time, he's wrong this time. His interests are his own self-serving interests, not the interests of the country" he told reporters Wednesday.

Today's Morning Report coverage of the controversy began shortly after 7am with a report including extracts of an interview with Chen Palmer Lawyer James Dunne ( listen to the full interview here which was broadcast later ) expressing a legal opinion that the new GCSB Act, passed in 2013, did indeed (as Sir Bruce asserted) allow for "inadvertent" mass surveillance. Dunne also said the act explicitly allows for the handing over of data by the GCSB Director to "any public authority he thinks fit to recieve that information" - such as the NSA.

Dunne said that the GCSB might be on less safe ground it it turned out that the real purpose for obtaining the data in the first place as to hand it over to the NSA - as that was not one of the purposes for which the GCSB could legally obtain surveillance data in the first place, inadvertantly or otherwise.

Next up was an Interview with Green Party Co-Leader Russel Norman about a complaint that the Green Party has made to the Inspector General of Intelligence and Security.

Susie Ferguson asked Russel Norman if it was possible that mass surveillance was now lawful when it was conducted overseas. And Norman said that was why they were making the complaint - to find out. But did that mean it was now also lawful in NZ?

To which Russel Norman replied:

"That's a very interestng question. If the GCSB can prove that what they are doing is lawful, when what they do to New Zealanders is done when they travel overseas where tens of thousands of us now have our private data given to the NSA. Then are they applying the same kind of rules when they intercept data in NZ. In which case is the GCSB arguing that in actual fact mass surveillance of New Zealanders is in fact lawful?

"Now we have taken the Prime Minister at his word, mass surveillance isn't lawful, so therefore what they are doing - which is mass surveillance - is illegal and should be stopped."

We now know that when Kim Dotcom was subjected to surveillance in the lead up to the FBI/NZ Police raid at the beginning of 2012 surveillance data was supplied to the NZ police from NSA run computer systems.

These systems already appeared to have the ability to intercept Kim Dotcom's communications, well before the 2013 GCSB amendment Act was passed. And this interception did not take place in the Pacific it took place here in New Zealand.

And there is this statement the Prime Minister made in August 2013 and reported by the NZ Herald on a day that the GCSB Bill was to be debated, and the day before it completed its third and final reading and passed in to law.

Prime Minister John Key says he and the head of GCSB would resign if the spy agency were found to have conducted mass surveillance.

He made the comment to reporters at Parliament in the light of assurances that the changes to the GCSB Act 2003 would not mean mass surveillance of New Zealanders.

Asked if he and GCSB chief Ian Fletcher would resign if there were mass surveillance, he said yes.

"But the facts of life are it won't happen."

For that to happen, the GCSB would have to undertake illegal activity.

He clarified later saying "both" would resign if there was mass surveillance.

"If I wholesale blatantly flout the law as Prime Minister I'm never going to survive anyway."

John Key's clear statements that morning that the GCSB was not conducting mass surveillance, and that the GCSB Act did not allow for it to take place are consistent with statements made repeatedly around the time of the passage of the controversial bill.

At his 19th August Press Conference he said : "Will there be wholesale surveillance of emails where they received those emails from and what the content of those emails was .I can categorically rule that out."

And a week earlier on 13th August in this interview with TV3's John Campbell defending the GCSB Bill, John Key claimed all discussion about mass surveillance was ill-informed nonsense and continued to assert that the primary reason for the GCSB Bill was to enable an advanced form of Norton Antivirus to be installed to protect NZ companies from cyber attack.

This weekend it is expected that further revelations about GCSB spying activities from the Hager inquiry will be published by both Fairfax and NZME's NZ Herald, NZ's two major newspaper companies.

Full Transcript Of The Sir Bruce Ferguson Interview About GCSB Pacific Spying

Morning Report Host Guyon Espiner: And listening to that is the former director of the GCSB Sir Bruce Ferguson, good morning. Have 10s of thousands or thousands of New Zealanders had their personal data passed to the NSA?

Former Director of the GCSB (2006-2011) Sir Bruce Ferguson: Well I don't think there is any need to worry about that. It has been fairly well explained, and the legislation does allow for it. I guess it's the whole method of surveillance these days, it's sort of a mass collection, and to actually individualise that is Mission Impossible. Tens of thousands hundreds of thousands…well there is two things about that. First off, even if GCSB was doing it, which they are not, that is investigating these people, they don't have the resources for it.. nor actually does the NSA.

Guyon: So if we can just back up a bit, because what you have said there is pretty interesting. Are you saying then, are you agreeing and acknowledging that tens of thousands of New Zealanders who have been travelling in the Pacific, or been in the Pacific, have had their personal information passed to the NSA?

Sir Bruce: Data collection in that respect. If you are going to try to individualise data collection it is mission Impossible. Its like whitebaiting and trying to catch one whitebait, you can't do it, in the net you will get inungas and all sorts of other things. It’s a mass collection. But the GCSB law and the way they have acted certainly in my time. And I am absolutely convinced that they do the same now. They do not illegally spy on New Zealanders.

Guyon: So New Zealanders personal information, emails, communications of some sort have found their way to the NSA?

Sir Bruce: If you read the new Act Guyon.

Guyon: I have read the new Act.

Sir Bruce: Well that is exactly what it is structured to allow for that there will at time to time be inadvertent collection, mass collection of these things information, but the Act specifies that they cannot then use that information, against NZ unless that they have specific reasons to do so.

Guyon: Well we have made some progress. So you are saying that there is mass collection of New Zealanders personal data being transferred to the NSA?

Sir Bruce: I did not say that. I said that if indeed that was happening that it might be impossible to bring out individuals within it.

Guyon: I am not trying to put words in your mouth?

Sir Bruce: Well I think you are.

Guyon: Well here's your opportunity, free and fair, is this statement true? There is mass collection of New Zealanders personal data that ends up in the hands of the NSA if they are in countries like the Pacific. Is that true or false?

Sir Bruce: Look I am not in a position to say whether that is actually true or false right now…

Guyon: You are in a good position Sir Bruce because you were the head of the GCSB from 2006 to 2011.

Sir Bruce: I guess the mass collection… I come back to the point… you cannot these days just actually individually select people. If you are gonna do ... you put out a big net you catch stuff, you throw out the stuff you don't want and you keep the stuff you do want. That is the analogy I would use. There is no other way around collection.

Guyon: Ok so I think you have answered that question. So it is collected en mass and then you filter out what you don't want right?

Sir Bruce: That would be a normal way of all nations collecting intelligence.

Guyon: So how would you possibly filter out those innocent New Zealanders which would 99% be, how would that be done?

Sir Bruce: You simply don't need the information. You might be targeting one individual amongst all that. He might be a money launderer he might be a drug smuggler, or she might be. So you are after that individual among all the other mish mash, trash etc. you just eliminate it.

Guyon: But those people - who are the trash - those people have had their personal communications stored by the NSA, so while they may not be the target of any investigation right now their information is there and could be looked back at right?

Sir Bruce: Look the other day I went to Countdown and bought some ham. Yesterday I get an email from Countdown saying we've got more ham on sale. How does that happen? Do they collect my information and use it? That's my personal information.

Guyon: Yes. But I tell you what. I'd be a lot more interested and perhaps concerned if authorities in the NSA had my information than if the local supermarket had the information.

Sir Bruce: Well I don't think your concern is actually relevant. I have been to the NSA several times. They have huge other issues on their hands they are not the remotest bit interested in what is happening down here to 99.95% or whatever...

Guyon: So why are we giving them mass communications from NZ citizens who in the Pacific then?

Sir Bruce: All sorts of intelligence can be used . I think its been well canvassed this week in the news. The South West Pacific is actually of quite a lot of interest to a lot of countries, Australia, NZ, United States, France, China, there's a lot of activity going on there. We want to know what is going on to safeguard not only us but the nations in the Pacific. We are actually a benefactor for them to try and make sure that they are safe and secure. This is not some kind of nefarious attack on the Pacific Islands its actually helping them, and helping us, and helping our friends and allies maintain security there.

Guyon: And indeed its been going on, the monitoring for quite some time, we have acknowledged that. According to this information that's come out this week what changed is that in July of 2009, the documents say, we moved to what's called "full take collection", can you explain to me - given that you were head of the GCSB at the time - what that phrase means?What does "full take collection" mean?

Sir Bruce: That basically means, as I was saying, in the analogy of whitebaiting, you put a net in the water, you catch what comes into the net and you get rid of everything you don't want, which is probably almost all of it and then you itemise it down.You might well be looking for someone like a drug smuggler, money launderers, in amongst all of that, that's the target, the rest of it is just discarded.

Guyon: So that's mass surveillance then?

Sir Bruce: Yes that's been admitted .That's why the Act has been changed Guyon, to actually allow it to be absolutely transparent.

Guyon: Ok. So we are getting somewhere. So what we have after this conversation. So what we have, we have mass surveillance of New Zealanders in the Pacific and then we are led to believe that somehow someone weeds out and destroys all information that relates to innocent NZ citizens. Have I got that right?

Sir Bruce: Well certainly any weeding out... New Zealanders will not be targeted if there is no reason to be targeted. That is absolute in law that right through my time no NZer to my knowledge was targeted, with the exception I guess of people, well that wasn't in my time - the Dotcom one - nobody was targeted illegally. It has to be done legally. And I am 100% confident that is what GCSB us doing right now. The Prime Minister is right. He has been given assurances, and I'd back those assurances up, certainly from my time, nothing illegal is happening there.

Guyon: Well thankyou very much we really do appreciate your time talking about that. That is the former Director of the GCSB, Sir Bruce Ferguson.

ENDS

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Alastair Thompson

Scoop Publisher

Alastair Thompson is the co-founder of Scoop. He is of Scottish and Irish extraction and from Wellington, New Zealand. Alastair has 24 years experience in the media, at the Dominion, National Business Review, North & South magazine, Straight Furrow newspaper and online since 1997. He is the winner of several journalism awards for business and investigative work.

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