22 June 2001

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Submissions on the GCSB Bill
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Kia ora,

if you have not already made a submission on the Government Communications and Security Bureau (GCSB) Bill, there is still time to get one in. The deadline for submissions to be received is 30 June 2001. This alert is in four parts: 1) background information; 2) the provisions of the Bill; 3) comment on the Bill; and 4) how to make a submission on this Bill.

1) Background information

According to the government’s ‘Securing our Nation’s Safety’ booklet, “the GCSB’s job is to contribute to the national security of New Zealand through the collection and reporting of foreign signals intelligence in response to NZ’s foreign intelligence requirements. It also gives advice and assistance to NZ government departments and agencies on the security of information-processing systems.” The GCSB currently employs around 220 people and has an annual budget of approximately $20 million.

The GCSB was set up in 1977 as a civilian organisation within the Ministry of Defence by the then Prime Minister, Robert Muldoon. At that time it operated a high frequency radio interception station at the navy base HMNZS Irirangi, near Waiouru; in 1982 its radio interception activities were moved to Tangimoana, near Bulls. In 1989 it was detached from Defence and became directly responsible to the Prime Minister of the day, to whom its chief executive reports. Also in 1989, the GCSB operated satellite communications interception base was opened at Waihopai, near Blenheim.

The description of the GCSB in ‘Securing our Nation’s Safety’ is somewhat misleading - less than 10% of the GCSB’s activities are related to giving advice and assistance to government departments on security. It is also difficult to ascertain precisely what contribution the GCSB makes to ‘our’ national security, as its work includes the operation in this country of the US automated spy system Echelon.

Although this foreign involvement was kept officially hidden for many years, the 1999 Annual Report of the Inspector-General of Intelligence and Security admitted publicly for the first time that foreign spy agencies have access to the information gathered at Waihopai and Tangimoana, “[the bases] are useful to and are accessible by the intelligence agencies of New Zealand's intelligence partners”. This is a total understatement of the situation.

The system used at Waihopai, Echelon, is an automated intelligence gathering system, based on key word selection in messages (faxes, email, telephone and telex). Echelon was first publicly exposed by the British investigative journalist Duncan Campbell in the 1980s. The system is under the sole control of the US National Security Agency; because it is fully automated there is nothing NZ politicians can do to influence the flow of information overseas by computer to the NSA. Echelon is used here primarily to spy on our Pacific neighbours, and to intercept international communications to and from this country.

The GCSB was not subject to any NZ law governing or limiting its activities until 1996. At that time, a modicum of oversight over the GCSB was provided via the Intelligence and Security Intelligence Committee and the Inspector-General of Intelligence and Security. However, both have been demonstrated in the courts to provide very little accountability in practice (as per Aziz Choudry’s 1999 court case). The GCSB’s activities remain exempt from key provisions of the Crimes Act and the Privacy Act. The lack of legal status of the GCSB is why this Bill has been introduced to parliament.

2) Provisions of the Bill

The primary policy objectives to be achieved by the Bill are stated in the Explanatory Notes as:

“to formalise in statute the existing executive arrangements that establish the GCSB and authorise its activities; and to fill a gap in the existing legal structure that currently prevents the future expansion of the GCSB’s signals intelligence in particular areas that are likely to become increasingly important over time.

This Bill will put the position of the GCSB beyond doubt as a legitimate agency of government. It emphasises that the GCSB’s signals intelligence functions are to be focussed on meeting the Government’s foreign intelligence needs. Its aim is to define the functions of the GCSB and to make better provision for its administration and the conduct of its operational activities, thereby placing the GCSB on a similar footing to that of the Security Intelligence Service.” (Explanatory Notes, GCSB Bill, page 2).

Clause 4 - Interpretation: defines the meaning of various phrases used in the Bill. Of particular interest are the following: “ ‘foreign communications’ means communications that contain, or may reasonably be expected to contain, foreign intelligence; ‘foreign intelligence’ means information about the capabilities, intentions, or activities of a foreign organisation or a foreign person; ‘foreign organisation’ means - a) a government of any other country other than New Zealand; b) an entity controlled by the Government of any country other than New Zealand; c) a company or body corporate that is incorporated outside New Zealand, or any company within the meaning of the Companies Act 1993 that is, for the purposes of the Companies Act 1993, a subsidiary of any company or body corporate incorporated outside New Zealand; d) an unincorporated body of persons consisting exclusively of foreign organisations or foreign persons who carry on activities wholly outside New Zealand; e) an international organisation; f) a person acting in his or her capacity as an agent or a representative of any Government, body, or organisation referred to in any of paragraphs (a) to (e). ‘foreign person’ means an individual who is neither a New Zealand citizen nor a permanent resident; ‘private communication’ - (a) means a communication between 2 or more parties made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be defined to the parties to the communication; but - (b) does not include a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.”

The Objective of the GCSB is defined in Clause 7 as “to contribute to the national security of New Zealand by providing - a) foreign intelligence that the Government of New Zealand requires to protect and advance - (i) the security or defence of New Zealand; or (ii) the international relations of the Government of New Zealand; or (iii) New Zealand’s international well-being or economic well-being”. Clause 7(1)b relates to protecting the security of information for government departments etc. Clause 7(1)(a)(iii) is further defined in 7.2 as “the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Section 3 relates to ‘Interception of communications’ and states in clause 14 “Interceptions not to target domestic communications. Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau, may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation) who is a New Zealand citizen or a permanent resident.”

Clause 15 specifies the types of interceptions for which a warrant or authorisation is required, which relates to physically connecting an interception device. Clause 16 relates to ‘certain interceptions permitted without an interception warrant’ which seems to allow for pretty much any eventuality, ie the GCSB Director or a person authorised by the Director can carry out an interception, the foreign communication being intercepted should not contain private communications, however - if the private communications are “ (i) produced, sent, or received by, or sent to, a foreign organisation or a foreign person; and (ii) contain, or may reasonably be expected to contain, foreign intelligence” then they can be intercepted by a physical device without a warrant. Clause 16 also specifies that a warrant is not required for interceptions that do not require the use of physical devices.

Clause 17 covers the issue of interception warrants, which are issued by the Minister (usually the Prime Minister) after the GCSB Director has asked for one and has provided various information on oath. There is a curious twist to this: 17.4 states “Before issuing a warrant, the Minister must consult the Minister of Foreign Affairs and Trade about the proposed warrant.”

Clause 18 deals with who can act under an interception warrant (any person or class of person specified in a warrant or by a later amendment to it); and Clause 19 specifies that anyone intercepting communications must “take all practicable steps that are reasonable in the circumstances to minimise the likelihood of intercepting communications that are not relevant to the persons whose communications are to be intercepted.”

Clause 20 provides authorisation for GCSB (or other) employees to access “a computer system or part of a computer system of a specified foreign organisation or foreign person”.

3) Comment on the Bill

A feeling of unreality descends when reading this Bill - a sensation which is remarkably similar to that felt when reading the various SIS Amendment Bills in 1999. This comes in part from the statement in the Bill’s Explanatory Notes about “placing the GCSB on a similar footing to that of the Security Intelligence Service.” This in itself is a matter for serious concern - in 1999 we published alerts about the two amendment Bills to the SIS’s legislation, and the points made in those relate to this GCSB Bill too. You can find 'Do you want the SIS in your home?' PMA, January 1999 at http://www.converge.org.nz/pma/a120199.htm and ‘SIS Amendment Bill 2: submissions due soon’ PMA, April 1999 at http://www.converge.org.nz/pma/a290499.htm The index page for articles and alerts on spies and secret services is at http://www.converge.org.nz/pma/sispies.htm

The definition of ‘foreign organisation’ as including “e) an international organisation; f) a person acting in his or her capacity as an agent or a representative of any ... organisation referred to in any of paragraphs (a) to (e)” is laughable - presumably that includes most churches, the United Nations and its various agencies and everyone with any links to them, sports teams with links to overseas sporting bodies, as well as international peace and social justice groups, academic or professional associations and so on.

Under this bizarre definition, the ‘restrictions’ on intercepting the communications of any New Zealand citizen or permanent resident only apply when that person is not a ‘foreign organisation’ (see Section 13, Clause 14), which as pointed out above, would in fact apply to very few people - many New Zealanders are, it seems, actually a ‘foreign organisation’.

The feeling of unreality also comes from the huge gaps in the Bill - the areas of the GCSB’s work which are not even mentioned. According to Helen Clark “This Bill is another step towards making the work of our security and intelligence agencies as transparent as they can be given the circumstances in which they work” (media statement, 1 May 2001).

But there is very little transparency about this Bill - while it may provide for interception warrants or authorisations before a physical interception device can be put in place - most of the GCSB’s work involves the interception of electronically or radio transmitted communications and such interception does not require the placing of a physical device. Furthermore, it makes no mention whatsoever of the GCSB’s involvement in operating the Echelon system here.

As you may be aware, the Echelon system has been the subject of an enquiry by a Temporary Committee of the European Parliament which issued a Draft Report ‘on the existence of a global system for the interception of private and commercial communications (ECHELON interception system)’ on 18 May 2001. Amongst the points made in this report (and there are many of them, it is 113 pages long) are the following:

it is doubtful if the operation of the Echelon system is compatible with case law of the European Court of Human Rights in respect to the right to privacy;

that the rules for operating the system are not accessible and the implications for individuals are not forseeable and therefore breaches of the European Court of Human Rights principles relating to accessibility and forseeability probably occur;

that the purpose of the system is to intercept private and commercial communications, not military communications;

that lawful operations of intelligence services are consistent with fundamental [human] rights only if adequate arrangements exist for monitoring them, and there appears to be no monitoring of the Echelon system.

The Temporary Committee’s concerns about the operation of the Echelon system are such that they recommend all businesses and individuals protect the security of their communications by encrypting all electronically transmitted communications including email messages.

In addition, the Draft Report points out that that any government’s assurances that it does not pick up communications from citizens of the country in which Echelon is operating are false - it describes such interceptions systems such as Echelon as operating on the basis of the ‘vacuum-cleaner’ principle. And of course, even if Echelon were solely targeted at ‘foreigners’, it is a US system operated here, and therefore we are all ‘foreigners’ to it.

The GCSB Bill is totally dodgy - it appears to give little protection to anyone from the activities of the GCSB itself, and of course no protection to those individuals who are considered to be foreign organisations! It gives no protection from those activities the GCSB performs on behalf of the US government, including the operation of the Echelon system at Waihopai.

This Bill gives a pretence of legality to the GCSB and its activities. It is yet another step in the repressive increase in surveillance powers which governments have been giving themselves over the past few years - the SIS Amendment Acts under the last National government; and the current government’s electronic snooping legislation which allows agencies of the state to hack into people’s computers - all designed to monitor any dissent or disagreement with the government of the day’s economic and social policies.

4) How to make a submission on this Bill

The Bill will be considered by the Intelligence and Security Committee, which is required to report back to parliament by 7 November 2001. The members of the Committee currently are: Helen Clark, and her two nominees Jim Anderton and Michael Cullen; Jenny Shipley and her nominee Richard Prebble.

If you wish to make a submission, please send ONE copy to Mike McBurney, Acting Clerk Intelligence and Security Committee. They would prefer to receive submissions by email (as a Word attachment is fine), send to gcsb.submissions@parliament.govt.nz or you can post yours to Mike McBurney, Acting Clerk Intelligence and Security Committee, c/o Department of the Prime Minister and Cabinet, PO Box 55, Wellington, or fax to attn Mike McBurney, (04) 473 2789.

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