Posts Tagged ‘GCSB’
Posted on 08:32, March 15th, 2015 by Pablo
In recent days there have been claims that there has been both more and less spying by New Zealand intelligence agencies. Proponents and opponents of the intelligence community have seized on one or the other claim to argue in favour or against NZ’s involvement in the 5 Eyes signals intelligence network and the expansion of powers awarded the NZ intelligence community under amendments to various security Acts during the past few years. Given that there is a forthcoming parliamentary review of the NZ intelligence community, it is worth cutting to the gist of the issue of “balance” between civil liberties and intelligence operations.
Monitoring and intercept technologies available to signals and technical intelligence agencies today are superior to those of ten years ago, especially in the field of telecommunications. This allows signals and technical intelligence agencies to do much more than was possible before, something that legal frameworks governing signals and technical intelligence collection have had difficulty keeping pace with. It would therefore seemingly defy credulity to claim that that spy agencies are doing less spying now than in the past, especially given what is known about the 5 Eyes network from the Snowden documents currently being introduced into the public domain.
But perhaps there is a way to reconcile the opposing claims. Can spy agencies actually be doing less with more?
The assertion that there is less spying by NZ intelligence agencies now than seven years ago can be reconciled with the recently released GCSB annual report stating otherwise by understanding that under the intelligence community’s interpretation, “mass collection” is not equivalent to “mass surveillance.” Although the 5 Eyes and other national signals intelligence agencies use systems like PRISM to grab as much meta-data as possible as it passes through nodal points, that data has to be mined using systems like XKEYSCORE to obtain collectable information. Bulk “hovering” of all telecommunications in specific geographic or subject areas by agencies like the GCSB still has to be searched and analysed for it to become actionable intelligence. That is where the use of key words and phrases comes in, and these are not just of the usual “jihad” or “al-Qaeda” variety (since the bulk of intelligence collection is not focused on terrorism).
Although the GCSB may be doing more bulk collection of electronic data, it claims to be analysing proportionately less of what is collected than during the last year of the Fifth Labour government. So it is doing less with more. But a fundamental problem remains when it comes to intercepting telecommunications in democracies.
That problem is that whether it is analysed or not, mass collection of so-called meta-data of everyone’s personal and professional telecommunications presumably violates the democratic right to privacy as well as the presumption of innocence because it is obtained without there being a particular suspicion or specific reason for its collection (much less a warrant for its collection). Bulk intercepts can then be data-mined after the fact using classified search vehicles in order to build a case against individuals or groups.
That runs against basic tenets of democratic jurisprudence. Moreover, indefinite storing of meta-data that has not been analysed but which could be in the future in the event target (and key word) priorities change is something that is the subject of legal argument at this very moment.
There are therefore fundamental principles of democratic governance at stake in the very collection of meta-data, and these cannot be easily set aside just because the threat of terrorism is used as a justification. The issue is constitutional and needs to be resolved before the issue of “balance” can effectively be addressed.
However, for the sake of argument let’s accept that bulk collection is not mass surveillance and that the former is legal. How does one balance civil liberties and security under such circumstances?
The implementation of balance under such conditions starts at the point where data mining begins. What are the key phrases and words that identify targets for closer scrutiny? What are legitimate targets and what are not? Some search terms may be easy to understand and broadly accepted as necessary filters for the acquisition of more precise information about threats. Others might be more controversial and not widely accepted (say, “opposition leader sex life” or “anti-TPPA protest leaders”).
That is where the issue of effective intelligence oversight comes into play and on that score NZ is sorely wanting. There have been some cosmetic changes in the workings of and a slight extension of the powers of the Inspector General of Intelligence and Security, and the process of issuing domestic security warrants made more robust with the participation of the Commissioner of Security Warrants. Yet any honest assessment of the oversight mechanisms of the NZ intelligence community will show that they are inadequate when it comes to providing effective and transparent proactive as well as retroactive oversight and review of our intelligence community’s activities given the range and scope of the latter.
These mechanisms are fewer and less effective than those of most liberal democracies (including our 5 Eyes partners), which means that NZ’s intelligence partners may well ask it to do things that they cannot do themselves due to the restrictions imposed by their own oversight mechanisms. That possibility should be of concern and needs to be addressed. Relying on the good faith of NZ intelligence agencies involved is not enough, especially given their history of playing loose with the rules when it suits them.
Therein lies the core problem with regard to balancing civil liberties and intelligence operations. If there is effective intelligence oversight before the fact (“proactive” in the sense that oversight mechanisms dictate was is permissible data-mining before it occurs) as well as after the fact (“retroactive” in the sense that oversight mechanisms hold intelligence officials to account for their use of bulk collection and data-mining), then balance can be achieved. However, if such effective oversight is lacking–again, both proactive and retroactive in nature–then the “balance” will be skewed heavily in favour of unaccountable intelligence collection and usage. That is not acceptable in a democracy but is in fact the situation at present in New Zealand.
Then there are the issues of how national security is defined and what role intelligence agencies play in its defense, on whose behalf NZ intelligence agencies engage in espionage, and with who the intelligence obtained by human, signals and technical means is shared. This matters because trying to achieve balance between civil liberties and intelligence operations without addressing the larger context in which the latter occur is much like putting the cart before the horse.
Posted on 10:50, March 13th, 2015 by Pablo
EveningReport.nz is a new NZ-based online media outlet that among other valuable things offers in-depth interviews on matters of public interest. As such t is a welcome addition and antidote to corporate media soundbites and frivolities.
I was fortunate to feature in one such interview (there is also one by Nicky Hager), which explores the latest revelations that the GCSB does a heck of a lot of spying on New Zealand’s friends and partners as well as on so-called rogue states, and it does much of this on behalf of the the US and other Five Eyes partners rather than as a matter of national security. The ramifications of the revelations about NZ’s role in 5 Eyes are one subject of the discussion, but there are other items of interest as well.
The discussion, hosted by Selwyn Manning, can be found here.
It turns out that nearly 5 months after getting re-elected, the government has decided on the composition of the Intelligence and Security Committee (ISC). Besides himself as Chair of the ISC, the Prime Minister gets to select two members from the government parties and the Opposition Leader gets to select one member from opposition parties. In both cases the respective Leaders are expected under Section 7 (1) (c,d) of the 1996 Intelligence and Security Committee Act to consult with the other parties on their side of the aisle before selecting the remaining members of the committee. The language of the Act is quite specific: “c) 2 members of the House of Representatives nominated for the purpose by the Prime Minister following consultation with the leader of each party in Government: (d) 1 member of the House of Representatives nominated for the purpose by the Leader of the Opposition, with the agreement of the Prime Minister, following consultation with the leader of each party that is not in Government or in coalition with a Government party.” (1996 ISCA, pp. 6-7).
Not surprisingly the government has nominated two National MPs, Attorney General Chris Finlayson and Justice Minister Amy Adams, for membership on the ISC. It is not clear if ACT, the Maori Party and United Future were consulted before their selection. What is more surprising is that Andrew Little nominated David Shearer and did not consult with opposition parties before making his selection. While Shearer is a person with considerable international experience and has been a consumer of intelligence (as opposed to a practitioner) during his career, Mr. Little has been neither. In fact, it can be argued that Mr. Little has the least experience of all the proposed members when it comes to issues of intelligence and security, which means that he will have to lean very heavily on Mr. Shearer if he is not not be overmatched within the ISC.
Moreover, in past years Russell Norman, Peter Dunne and Winston Peters have been on the ISC, so the move to re-centralise parliamentary oversight in the two major parties represents a regression away from the democratisation of representation in that oversight role. Since these two parties have been in government during some of the more egregious acts of recent intelligence agency misbehaviour (for example, the Zaoui case, where intelligence was manipulated by the SIS to build a case against him at the behest of or in collusion with the 5th Labour government, and the case of the illegal surveillance of Kim Dotcom and his associates by the GCSB in collusion or at the behest of the US government under National, to say nothing of the ongoing data mining obtained via mass electronic trawling under both governments), this does not portend well for the upcoming review of the New Zealand intelligence community that this ISC is charged with undertaking.
The Greens have expressed their disgust at being excluded and have, righty in my opinion, pointed out that they are the only past members of the ISC that have taken a critical look at the way intelligence is obtained, analysed and used in New Zealand. But that appears to be exactly why they were excluded. According to John Key, Labour’s decision was “the right call” and he “totally supports it.” More tellingly, Mr. Key said the following: “A range of opposition voices from the minor parties could railroad the process. I don’t think the committee was terribly constructive over the last few years, I think it was used less as a way of constructing the right outcomes for legislation, and more as a sort of political battleground” (my emphasis added).
In other words, Russell Norman took his membership on the ISC seriously and did not just follow along and play ball when it came to expanding state powers of search and surveillance under the Search and Surveillance Act of 2012 and GCSB Act of 2014.
That is a very big concern. Mr. Key believes that the “right” outcomes (which have had the effect of expanding state espionage powers while limiting its accountability or the institutional checks imposed on it) need to be produced by the ISC when it comes to the legal framework governing the intelligence community. Those who would oppose such outcomes are not suitable for membership, a view with which Andrew Little seems to agree.
This is so profoundly an undemocratic view on how intelligence oversight should work that I am at a loss for words to explain how it could come from the mouth of a Prime Minister in a liberal democracy and be tacitly seconded by the Leader of the Opposition–unless they have genuine contempt for democracy. That is a trait that W. Bush, Tony Blair and John Howard shared as well, but what does that say about the state of New Zealand democracy?
Mr. Little has given his reason to exclude Metiria Turei of the Greens from ISC membership as being due to the fact the Mr. Norman is stepping down in May and Mr. Little wanted “skills, understanding and experience” in that ISC position. Besides insulting Ms. Turei (who has been in parliament for a fair while and co-Leader of the Greens for 5 years), he also gave the flick to Mr. Peters, presumably because that old dog does not heel too well. As for Mr. Dunne, well, loose lips have sunk his ship when it comes to such matters.
The bottom line is that Mr. Little supports Mr. Key’s undemocratic approach to intelligence oversight. Worse yet, it is these two men who will lead the review of the NZ intelligence community and propose reform to it, presumably in light of the debacles of the last few years and the eventual revelations about NZ espionage derived from the Snowden files.
As I said last year in the built-up to the vote on the GCSB Amendment Act, I doubted very much that for all its rhetorical calls for an honest and thorough review process that led to significant reform, Labour would in fact do very little to change the system as given because when it is in government it pretty much acts very similar to National when it comes to intelligence and security. If anything, the differences between the two parties in this field are more stylistic than substantive.
What I could not have foreseen was that Labour would drop all pretence of bringing a critical mindset to the review and instead join National in a move to limit the amount of internal debate allowable within the ISC at a time when it finally had an important task to undertake (in the form of the intelligence community review).
As a result, no matter how many public submissions are made, or how many experts, interest groups and laypeople appear before the ISC hearings, and how much media coverage is given to them, I fear that the end result will be more of the same: some cosmetic changes along the margins, some organisational shuffles and regroupings in the name of streamlining information flows, reducing waste and eliminating duplication of functions in order to promote bureaucratic efficiency, and very little in the way of real change in the NZ intelligence community, especially in the areas of oversight and accountability.
From now on it is all about going through the motions and giving the appearance of undertaking a serious review within the ISC. For lack of a better word, let’s call this the PRISM approach to intelligence community reform.
Posted on 12:19, October 12th, 2014 by Pablo
Some years ago I ran afoul of the 5th Labour government because I speculated in public that some of our diplomatic personnel and embassies might double up as intelligence collectors. This was in reference to the Zaoui case and the role played by then SIS Director Richard Woods, who had been ambassador to France and Algeria at the time Zaoui went into exile in France from Algeria. Woods claimed that he had never heard of Zaoui until the latter arrived seeking refuge in New Zealand, and that he had never been to Algeria during his entire time as ambassador to that country. I found that a bit hard to believe on both counts and wondered aloud if, to maximise efficiencies given small budgets and manpower, Woods and others worked a bit beyond their official credentials.
The fact that embassies serve as intelligence collection points is not surprising or controversial. After all, it is not all about diplomatic receptions and garden parties. Nor should it have been entirely surprising that the possibility existed that some NZ diplomats held “official cover” as intelligence agents. That is, they were credentialed to a specific diplomatic post, held diplomatic passports and immunity based on those credentials, but were tasked to do more than what their credentials specified (for example, a trade or diplomatic attache working as a liaison with dissident or opposition groups or serving as a handler for a foreign official leaking official secrets). Rather than scandalous, this is a common albeit unmentioned aspect of human intelligence gathering and my assumption was and is that NZ is no different in that regard.
Prime Minister Helen Clark erupted with fury at my comments, saying that I was unworthy of my (then) academic job. I received a scathing letter from the then State Services Commissioner saying that I put New Zealand diplomats in danger. Most interestingly, I received a phone call at home from someone who claimed to be with the then External Assessments Bureau (now National Assessments Bureau) repeating the claim that I was putting lives in danger and suggesting that I should desist from further speculation along those lines (although he never refuted my speculation when I asked him if I was wrong).
Given that background, it was not surprising but a wee bit heartening to read that the Snowden leaks show that NZ embassies are used by the Five Eyes network as tactical signals intelligence collection points. That is, the embassies contain dedicated GCSB units that engage in signals gathering using focused means. This is different and more localised targeting than the type of signals collection done by 5 eyes stations such as Waihopai.
There is much more to come, but for a good brief and link to the original article on this particular subject, have a wander over to No Right Turn.
Glenn Greenwald’s arrival in NZ has reignited controversy over who, exactly, the GCSB spies on, how it does so, and for whom it does so. Tonight he will outline what he has gleaned from the Snowden leaks, and I have no doubts that what is revealed will be of serious consequence. The impact will be twofold.
So far, most attention has focused on the domestic side of the equation, in the form of claims that the GCSB, in concert with its 5 Eyes partners, conducts mass surveillance of New Zealand citizens and residents. The way it does so is to tap into the broadband infrastructure in order to extract so-called “metadata,” that is, the key identifiers of cyber messages such as time, sender, internet addresses and geographic locations of those communicating, etc. This information is stored and later subject to data mining from technologies like X Keyscore, which searches for keywords and phrases that can justify opening the metadata in order to reveal the contents of the messages identified by the data-mining technologies.
In simple terms, it is like going to people’s postboxes and recording all of the identifying features of their mail without opening the mail itself unless key identifiers allow the government to do so.
The government maintains that a) it does not collect metadata on New Zealanders and NZ permanent residents; and b) that collecting metadata is not equivalent to mass surveillance in any event since the contents of the messages from which metadata is extracted are not accessed unless there are reasons of national security to do so, and this occurs only in a handful of instances.
The reality is that because of a gentleman’s agreement between the 5 Eyes partners, metadata of the citizens of one partner state is accessed and collected by one or more of the other partners and only sent to the originating state if data-mining indicates that there is reason to open the contents of specific metadata “packages” concerning citizens or residents of that state. In this way the originating state government can claim that it is not engaged in mass surveillance of its own citizens or residents.
That may be parsing the meaning of “mass surveillance” beyond useful construction, but it does allow the government to deny that it conducts such mass surveillance on technical grounds–i.e., metadata is not the same as a private communication because it has no content.
The problem with such specious reasoning is that it violates two foundational tenets of liberal democracy: the right to privacy and the presumption of innocence. If it is considered an untoward invasion of privacy for the government or others to systematically rifle through and record the identifying features of correspondence in people’s mail boxes, then it is equally a violation of citizen’s rights to privacy for the government to electronically collect and store their cyber metadata.
Moreover, the mass collection and sharing of metadata by 5 Eyes intelligence agencies violates the presumption of innocence that citizens of democracies are supposedly entitled to. That is because the metadata is collected without cause. The government does not have a specific reason, suspicion or motive for collecting metadata, it just does so because it can under the aegis of “national security.” It then subjects this metadata to data-mining in order to find cause to conduct more intrusive searches of the contents. It is, in effect, trawling through everyone’s cyber communications in order identify and presumably counter the nefarious behaviour or plans of some individuals, groups or agencies.
This strikes at the heart of democracy. Yet the remedy is fairly simple. Under legal challenge the government can be forced to show cause for the collection of metadata of its citizens and residents. If it cannot, then the courts can deem such collection to be illegal in all but the most exceptional circumstances. With that judgement–and I very much doubt that any High Court would find it reasonable or permissible to engage in mass metadata collection without cause–intelligence agencies are put on notice and henceforth proceed with metadata collection and sharing at their peril.
In contrast to the attention directed at the issue of mass surveillance, there is a far more damaging side to Greenwald’s revelations. That is the issue of the GCSB and 5 Eyes espionage on other countries and international agencies such as the UN or non-governmental organisations as well as foreign corporations, financial institutions, regulatory bodies and the like. Such external espionage is part of traditional inter-state intelligence gathering, which includes economic, military and political-diplomatic information about targeted entities.
Judging from what has already been revealed by the Snowden leaks with regard to the external espionage activities of the other 5 Eyes partners, it is very likely that Greenwald will reveal that NZ, through the GCSB in concert with 5 Eyes, spies on friendly or allied states as well as hostile state and non-state actors such as North Korea and al-Qaeda. This may include trade or diplomatic partners. It could well include economic or commercial espionage.
The impact of such revelations will outweigh the repercussions of the domestic surveillance aspects of the Snowden leaks. With the nature and extent of NZ’s espionage made public, its reputation as an independent and autonomous “honest broker” in international affairs will be shattered. Its pursuit of a UN Security Council seat could well go up in smoke. But above all, the response of the states that have been and are targeted by the GCSB will be negative and perhaps injurious to NZ’s national interests. The response can come in a variety of ways, and can be very damaging. It can be economic, diplomatic or military in nature. It could involve targeting of Kiwis living in in the states being spied on, or it could involve bans or boycotts of NZ exports. The range of retaliatory measures is broad.
Unlike the other 5 Eyes partners, NZ has no strategic leverage on the states that it spies on. It is not big, powerful or endowed with strategic export commodities that are essential for other countries’ growth. Yet it is utterly trade dependent. Because of that, it is far more vulnerable to retaliation than its larger counterparts, especially if it turns out that NZ spies on its trade partners. Imagine what will happen if it is revealed that NZ and the other 5 Eyes partners spy on TPPA members in order to secure advantage and coordinate their negotiating strategies (keeping in mind that Australia, Canada and the US are all TPPA parties). What if if NZ spies on China, its biggest trade partner, at the behest of the US, with whom China has an increasingly tense strategic rivalry? What if it spies on Japan, Malaysia, Chile, Iran, India, Russia or the UAE? What if it spies on the Pacific Islands Forum and other regional organisations? What if it spies on Huawei or some other foreign corporations? Again, the possible range of retaliatory options is only surpassed by the probability that they will be applied once NZ’s espionage activities are made public.
In light of this it behooves the government to make contingency plans for the inevitable fallout/backlash that is coming our way. I say “our” rather than “their” because the response of the aggrieved parties will likely have, be it directly or as a trickle-down effect, a negative impact on most all Kiwis rather than just this government. But so far the government has indicated that it has no contingency plans in place and in fact has adopted a wait and see approach to what Greenwald will reveal.
If so, it will be too late to mitigate the negative external impact of his revelations. And if so, that is a sign of gross incompetence or negligence on the part of the PM and his cabinet because they have known for a long time what Snowden took with him regarding NZ (since the NSA shared the results of its forensic audit of the purloined NSA material once Snowden disappeared). It therefore had plenty of time to develop a plan of action whether or not Greenwald showed up to be part of Kim Dotcom’s “Moment of Truth” event.
All of which means that, if Greenwald delivers on his promises, New Zealand is in for a very rough ride over the next few months. That, much more so than Dotcom’s quest for revenge against John Key, is why tonight’s event could well be a signal moment in NZ history.
In the previous two posts I’ve covered the strategic rationales behind the Internet MANA alliance, and how, even if they spend their money very inefficiently, they are still very likely to gain a stronger presence in Parliament. But what does success actually look like for Internet MANA?
This is a complex question to answer because Internet MANA, for all its potential, is a mess of vanity projects existing in a state of ideological and pragmatic tension. But tensions all resolve sooner or later.
Kim Dotcom: Disruption (a change of government, or 10%)
To get his extradition case thrown out, Kim Dotcom needs to change the government, and prevail upon an incoming Minister of Justice that he and his party are great assets to that government.
The likelihood of this is slim, because he has already antagonised Labour, and because the leader of his own party has insisted she will not be led on the matter. Other members of the radical left groups aligned with the party are probably supportive of his ideological aim here, if only due to generalised anti-authoritarianism and anti-Americanism. And the other branch of Kim Dotcom’s game is fame, or notoriety, and if he can put his disruption engine in parliament, he will gain that, and it may provide him strategic cover for other manoeuvres regardless of who is in government.
The other way it could happen is if Internet MANA shocks everyone and polls very high — say, 10% — which would ruin almost everyone’s coalition plans. This is also extremely unlikely, but clearly it is Kim Dotcom’s hope, and it would be the purest sort of success for everyone involved.
Laila Harré: A launch (5%+) or a lifeboat (3%)
There’s a quirk here: Te Mana gets list places 1,3 and 4; Internet Party 2, 5 and 6, after which they alternate. So if they win five seats or fewer, Te Mana MPs will outnumber the Internet Party’s. If they win six or more seats, the numbers are more or less even. This provides a strong incentive for the Internet Party to perform, and also suggests shrewd negotiation by Te Mana.
In the event that the Internet Party bring Harré only into parliament (four seats or fewer), or if Kim Dotcom withdraws his cash and the party structure is no longer found to be self-sustaining, it seems very likely that Harré would join Te Mana formally. While her history in parties of this sort is its own guide, I suspect they would welcome her and it would be a fruitful arrangement: a win, of sorts, both for her and Te Mana.
The Internet Party: A future (7%)
Te Mana and Hone Harawira: The only way is up
The Left: It’s complicated
There remains the slight possibility that they will bring enough MPs into parliament to make a chaotic and unholy alliance of the left a just slightly less-bad alternative to the Golden Age of John Key. As an aside: the better the Greens do, the better for Internet MANA post-election; and if nothing else they should hopefully form a strong ideological and generational counterpoint to New Zealand First, which I fear starts to fancy itself as the UKIP of the South Seas.
Aotearoa as a whole
The latest Snowden leaks reveal that the British signals intelligence outfit GCHQ held a top secret conference in 2012 where it briefed its Five Eyes partners on an array of cyber “dirty tricks” that could be used against opponents. These included a range of hacking techniques, to include denial of service overloads, false on-line identities, “spoofing,” manipulation and alteration of on-line data and even the tried and true method of luring targets into so-called “honey traps” via social media.
The operative terms in such operations are encapsulated in the Four “D’s:” deny, disrupt, degrade and deceive.
Needless to say, there was the usual hue and cry when the news went public. Civil libertarians are incensed. Privacy advocates are outraged.
My reaction was “so what?” This is typical counter-intelligence, disinformation and psychological operations (pysops) taken to a new technological level (there is a positive side to psyops, something that is most commonly associated with so-called “hearts and minds” campaigns, but that is not the objective here). Instead, this program replicates what hackers already do on a regular basis and parallels similar programs run by the signals intelligence services of many countries. The conference just drew together the various aspects and strands of cyber naughtiness into a package made available to the Five Eyes members. The presentation (as provided by journalist Glenn Greenwald) is here: https://firstlook.org/theintercept/2014/02/24/jtrig-manipulation/.
Needless to say, New Zealand’s signals organizations, the GCSB, as well as the SIS and perhaps other security/intelligence units such as those of the police, have been granted access to this program. Government denials of such are just another smokescreen designed to hide the full extent of what NZ spy agencies can (and) do.
I was interviewed on Radio Nw Zealand about this. I pretty much said what I have mentioned above and pointed out that the real damaging news is soon to come: revelations about who NZ spies on, which, if Snowden holds true to form, will include allies as well as trading partners and perhaps even the Chinese. The interview is here: http://www.radionz.co.nz/audio/player/2587171.
After my interview former GCSB director Bruce Ferguson was interviewed. What he said was remarkable. He claimed that he knew of no such programs and that as far as he knew the GCSB did not engage in illegal activities. He dismissed my views by saying that some people give too much credit to NZ spy agency capabilities. He also claimed that the Russians and Chinese engage in similar behavior.
Let’s deconstruct this. The “dirty tricks” conference was held in 2012 and Ferguson left the GCSB in 2009. Perhaps he was unaware of the conference and during his time no such “dirty tricks” programs were operated by the GCSB. During his tenure cyber espionage was not the priority focus that it is today, so perhaps that is true insofar as using hacking techniques on social media and other cyber targets is concerned.
He says that as far as he knows the GCSB has done nothing illegal. That flies in the face of the illegal spying on Kim Dotcom (even the government admits the tapping of Dotcom’s phones by the GCSB was in fact unlawful) and the revelations that the GCSB misled parliament in its most recent annual report as to the number of warrants and operations it was engaged in (which the government claims was a simple error rather a purposeful deception). This latest embarrassment occurs after the publication of the Kitteridge Report on GCSB failures and the appointment of a new director charged with addressing and correcting them (Kitteridge is now the director of the SIS).
So, contrary to Bruce Ferguson’s claims, the GCSB has committed at least a few illegal acts, but perhaps not during his tenure as director. I leave it for readers to make judgement on that.
Whatever the truth, I believe that we can safely assume that the GCSB employs aspects of the “dirty tricks” program against foreign and perhaps domestic targets (the SIS certainly does in the latter case). I see this as par for the course given the current state of Five Eyes signals intelligence collection. I am not particularly fussed by the revelations, perhaps because it is just a technological extension of what always has been the norm in the world of intelligence and espionage.
What I do believe, as I have said many times before, is that these latest revelations are just the tip of the iceberg when it comes to NZ intelligence operations, and that Snowden, via his circle of investigative journalists, will publish far more damaging information about the role and extent of GCSB spying in the months to come.
It is time for the NZ government, if not the NZ public, to come to grips with that fact and prepare accordingly, because my suspicion is that the repercussions will be damaging and not necessarily confined to the diplomatic arena.
The subject of spying is back in the news this week, but the coverage has been inadequate. Allow me to clarify some issues, first with regard to those who want to join the Syrian conflict and second with regard to politicians trying to ingratiate themselves with Kim Dotcom.
Contrary to the thrust of the coverage, not all those seeking to join the Syrian conflict are Syrian or descendants of Syrians. The Syrian War is a civil war between Shiia and Sunnis, where the minority Alawite-backed Assad regime is fighting to maintain its grip over a majority Sunni population (Alawites are a sub-sect of Shiia Islam). For a variety of affective and strategic reasons Iran (a very large Shiia dominant country) supports the Assad regime while Sunni-controlled Saudi Arabia and Gulf oligarchies back the armed opposition. This opposition is divided into what can be loosely called secular moderates (such as those grouped in the Free Syrian Army) and Islamicists (such as those in the al-Nusra Front and Al-Qaeda in Iraq and the Levant).
The latter have come to dominate the military side of the opposition due to their superior combat skills and determination. Their ranks include Sunni internationalists from all over the world (including New Zealand) who see joining the struggle as a religious imperative. Egyptians, Jordanians, Pakistanis, Britons, Australians and French nationals are among those fighting in Islamicist ranks. That has led to serious clashes with the moderate secularists (who do not have as many internationalists in their ranks, although there are some), to the point that the fighting between the armed opposition factions has allowed the Assad regime to re-gain the upper hand in the overall struggle after being near collapse just six months ago.
Where the armed opposition is winning, it is the Islamicists who are doing so.
In the last nine months the Prime Minister has made repeated reference to would-be New Zealand jihadis joining the fight in Syria. Some are already there and others have been barred from going. They may or may not be Syrian in origin, but his use of the “Syrian trump card” is a naked political ploy designed to use fear-mongering as a justification for extension of domestic espionage and, perhaps, as a way of pre-emptively steeling public opinion against the negative consequences of the inevitable revelations from Edward Snowden about New Zealand’s foreign espionage role within the Five Eyes/Echelon signals intelligence collection network. The trouble with the PM’s ploy is that the proclaimed threat does not match the facts.
According to the government ten New Zealand passports have been revoked since 2005 and a handful of Kiwis are in Syria fighting. The PM makes it sound as if all these have associations with extremist Islam. Perhaps they do, but the Syrian conflict only heated up as of early 2012, so the Syrian card does not explain why passports were cancelled prior to that. Moreover, the PM says that passports were cancelled in order to prevent “radicalized” Kiwis from returning and making trouble at home. That begs the question as to what the frustrated wanna-be jihadis are going to do now that their plans are thwarted and they are forced to remain in the country under heavy scrutiny.
A Syrian community spokesman has said that two brothers had their passports revoked after their parents informed authorities of their plans to travel back home to join the fight. He also accused the PM and his government of “racial discrimination.” The latter claim is ridiculous and shows a gross misunderstanding of how democratic governance works. John Key did not personally order the revocation of any passports nor does he have the power to rescind the cancellation order. New Zealand authorities did not cancel the brother’s passports because they were Syrian but because of their purported intentions. They did not target the entire Syrian community for who they are.
In fact, under current legislation the government is well within its rights to revoke passports on the grounds that the individuals involved intend to become or are part of a criminal enterprise, of which terrorism is one. Since the Islamicists fighting in Syria are considered terrorist organizations by the New Zealand government, any intent to join them could be construed as an attempt to engage in criminal activity. One might argue that the definition of terrorism is too broad (and I believe that it is), but as things stand the government’s concern about returning, combat experienced jihadis is a legitimate motive for canceling passports.
I shall leave aside the fact that the chances of survival of those joining the Syrian conflict is quite low* and they are being monitored in any event, so mitigating the potential threat posed by returning jihadis is not as formidable as Mr. Key implies. There are technical means of tracking the location of passports, and the individuals who are in Syria or want to go there have been identified already via domestic intelligence gathering. In fact, allowing suspects to travel while being secretly monitored is a standard intelligence collection method, so one can reasonably assume that the handful of Kiwi internationalists in Syria as well as their as of yet to travel brethren are the focus of both human and signals intelligence collection efforts by local espionage agencies in conjunction with foreign counterparts.
However, Mr. Key’s repeated public use of the Syrian card certainly has alerted any would-be extremists in the New Zealand Muslim community that they have been infiltrated by the Police and SIS and that there are informants in their midst. In fact, the New Zealand Muslim community is a bit of a sieve since 9/11 because personal, sectarian and financial vendettas as well as legitimate concerns about ideological extremism have seen the accusation of “terrorist” thrown around quite freely within it. This has been well known inside security circles (who have to separate bogus from legitimate accusations of terrorist sympathies), but the PM’s public disclosure has given potential jihadis a clear signal to exercise increased caution and diligence when planning future violence (should there be any).
The most important issue, however, is the selective application of the passport revocation authority. If would-be Islamic internationalists have not been convicted of crimes in New Zealand, and barring clear evidence that they intend to engage in crime abroad, then they should be allowed free passage to travel. If they engage in war crimes or crimes against humanity during a foreign conflict (be it in Syria or elsewhere), they can be charged upon their return, or even detained on the suspicion of complicity in said crimes. This is not a far-fetched speculation because both the Assad regime and its armed opposition have committed a raft of atrocities that fall under both definitions of illegal war-time behavior.
This applies equally to those who may choose to join non-Islamicist groups in other foreign conflicts (for example, by joining Christian militias in the Central African Republic), so specifically targeting those intending to go to Syria to fight is, in fact, selective if not discriminatory application of the relevant law. As far as following the Australian example and making it illegal to join a foreign conflict under penalty of imprisonment or revocation of citizenship, one can only hope not.
The simple fact is that would-be jihadis and other internationalists should be free to join any foreign conflict. They assume the risk of doing so and understand that they give up the diplomatic protections usually reserved for citizens traveling abroad. Should they be deemed a potential threat upon their return (in the event that they do), then it is the responsibility of local law enforcement and intelligence agencies to mitigate that threat within the rule of law. As I have alluded to above, that is not particularly hard to do in the New Zealand context.
As for politicians meeting with Dotcom, the issue is far more simple than sinister. Dotcom is a NZ permanent resident who is a fugitive from US justice still under extradition warrant (which is being argued in court). The authorities may well consider him a flight risk because he certainly has the means to do so. They may believe that he is continuing his criminal associations or practices while his court case is being heard (I shall refrain from making bad jokes about those who have flocked to his side during the GCSB Bill debates, or about the politicians who have knocked on his door). Given his penchant for partying and those he associates with when doing so, they may want to catch him in possession of illegal drugs.
Thus the Police would have legitimate reason to run ongoing surveillance operations on him, and can do so legally with or without the help of the SIS and now, thanks to the passage of the GCSB Bill, the GCSB. In doing so, they would monitor and record the comings and goings of visitors to his mansion, with that information passed up the chain of command.
That is why Mr Key’s version of how he came to know about Mr. Peters’ treks to the Coatesville property is odd. He claims that he got his information about Dotcom’s political visitors from Cameron Slater working with or independently from a Herald gossip columnist. That is troubling.
The Right Honorable John Key is the Minister of Intelligence and Security, so presumably he is aware of the status of security operations and the Dotcom case in particular given its history. But he claims that he received domestic espionage information about Dotcoms’s visitors from a right-wing, admittedly partisan “attack” blogger, rather than from the security agencies for which he is responsible and who have a legal right to monitor Mr. Dotcom. That is a sign of incompetence or willful ignorance on his part.
I have shares in a Bolivian gold mine I am willing to sell at a very affordable price to readers who believe a sociopath was the first source of the Dotcom visit data provided to the PM. Perhaps I am wrong and it is simply too much for domestic law enforcement and intelligence agencies to pursue the monitoring of Dotcom for a supposed copyright infringement when so many Syrian-focused terrorists abound. But given the amount of resources expended and the reputational stakes involved, it would not be surprising and in fact legal for security agencies to do so.
I would suggest that if people like Winston Peters are concerned about being spied on when visiting Mr. Dotcom, then they should look at their own roles in allowing that to happen. Since 9/11 the legal powers and practical reach of the domestic espionage apparatus have been increased incrementally yet extensively under both Labour and National governments. Other than a relatively small number of Left activists and the Green Party (as well as ACT while Rodney Hide was still around to lead it), neither the majority public or the majority of political parties did anything to oppose this extension.
In fact, although Labour party figures and Winston Peters joined Kim Dotcom on the stage at various anti-GCSB Bill protests last year, and the bow-tied buffoon with a pompadour posing as a political party objected to having his personal communications accessed during the course of an investigation into leaks of confidential government information, Labour is responsible for the majority of the extensions and Dunne and Peters supported all of them. National has merely deepened the trend towards a surveillance society.
Hence, whatever Labour, NZ First or United Future may say now as a way of partisan point-scoring, they are full accomplices in the erosion of Kiwi privacy rights over the last decade. Any current whinging about violations of their personal and the larger collective privacy should be dismissed as cowardly rank hypocrisy.
In any event, when it comes to intrusions on basic freedoms of association, privacy and travel, not only Syrians living in New Zealand have reason to feel aggrieved.
* This is due to the immutable Buchanan rule of ground warfare: if you are firing your weapon over your head, or firing blindly around corners in the general direction of the enemy, you will not last long once s/he closes in. Should that rule be miraculously violated without consequence, the fifth Buchanan rule of asymmetrical warfare comes into effect: strapping explosives or amulets to your body in the hope of divine intervention is based on a false premise.
This evening the GCSB Amendment Bill passed its third reading in Parliament, 61-59, despite a desperate last-minute campaign to persuade selected government MPs to cross the floor and vote against the bill.
I’m sure everyone involved would accept it was a long shot, a last-ditch effort after every other challenge had failed. But it shares some faults with the remainder of the campaign, and the left’s political strategy more generally, which has been marked by a lack of coherence and internal consistency, poor targeting, and seemingly more at shoring up support among activists than in extending that support.
The merits of the GCSB issue were thoroughly thrashed out — the main problem is that it is an extremely complex topic about which few people have the expertise to make authoritative claims. Nevertheless, many of those people have made such statements, and the evidence is out there. This has been the strongest aspect of the “Stop the GCSB Bill” campaign more generally: its appeal to evidence.
But this was not a topic upon which government MPs were amenable to evidence. If they had been, they would surely have been swayed by testimony from the Law Society, the Human Rights Commission, and defence, security and IT experts including the former head of the GCSB itself. They were not moved by these appeals to evidence; not even slightly. They simply hold a different opinion on the merits of the GCSB Bill, one that happens to not be supported by the aforementioned experts (no doubt the PM provided another set of experts who gave them a counterview).
This is fundamentally because their motivation for passing the bill is ideological, not policy-oriented. National governments are strong on security. Whether they are or not, it’s part of their brand. They keep people safe, both at the day-to-day criminal level and at the level of transnational crime and terrorism. They are simply not willing to let some liberal bed-wetters prevent them from implementing a security system that better suits their petit-authoritarian worldview.
Calls to cross the floor arose mainly from the left-liberal activist community. The biggest problem with calling on your ideological foes to cross the floor is that they’re your ideological foes. If they cared about what you thought, they wouldn’t be your foes, and they very likely would be amenable to changing their views based on the evidence, or at least to moderating them and cooperating.
But this is war. Not war on terrorism; war on the liberals, who are the real strategic threat to this government, and are ascendant in New Zealand’s left following the success of marriage equality, the continuing strength of the Greens, relative to Labour. In a war, when your enemies offer to parley, it is a sign of weakness, and nobody could mistake left-wing activists begging the Minister of Justice for a vote to sink a key plank of her government’s legislative agenda as anything other than a sign of desperation. In a war, when your enemies offer to parley, you only accept if you can’t crush them, see them driven before you, and hear the lamentation of their women. Hard ideological power is rarely vulnerable to moral suasion.
Trying to persuade individual MPs to betray their cause from a position of such ideological and strategic isolation was never likely to have any effect other than to harden their resolve, and to increase pressure on them from within their party to toe the line. In particular, given the vitriol to which certain MPs — notably Peter Dunne, hilariously regarded as being the most likely to switch — have been subjected in recent months, a sudden switch to flattery and appeals to better nature was simply incoherent and too jarring to be credible. Even a dog, if mistreated, will bite when petted. The fact that so much abuse continued even after the charm offensive began made it doubly ineffective.
In many ways this was a concentrated version of the overall strategy of moral and evidence-based persuasion: because support for the bill has been framed in a partisan way, there’s little point in convincing your own side. The task is to convince people who, for the most part, like John Key and trust his government that they are neither likeable nor trustworthy. It’s a hard thing to do — but doubly hard when your cause gets occupied by the Occupy movement, a point that Pablo made in one of his many excellent posts on this topic recently.
Nine MPs were selected. Not to say that there were any actually good targets, but the selections misunderstand each MP’s place within the government machine.
The most obviously-idiotic target was Judith Collins, the Minister of Justice and probably the toughest authoritarian in government, including Key himself. Converting her was simply never a happening thing. National party newcomers Paul Foster-Bell and Claudette Hauiti were almost as laughable, given that their political careers exist only at the pleasure of the party.
Peter Dunne was probably the best target six months ago, except that he has since been subject to the greatest amount of vitriol over this issue. His relationship with the government has also been weakened recently, a bond he needed to renew, which he has.
John Banks, although personally of a nature similar to Collins, is vulnerable to his party machine which could possibly have been talked around — but the activist left thinks of him (and it) as being beyond liberal redemption, in spite of his voting in favour of marriage equality.
The others (Sam Lotu-Iiga, Melissa Lee, Jami-Lee Ross, and Nicky Wagner), were no worse than anyone else in the party.
Who do you love?
The only thing that gives a non-delusional Prime Minister in this data-driven age the sort of swagger John Key has is the knowledge that the polls are solid. There have been a few public polls: Research NZ; ONE News/Colmar Brunton; 3 News/Reid Research and most recently Fairfax/Ipsos.
Campbell Live’s unscientific, self-selecting plebiscite is barely worth a mention. So of these polls, only the last gives anything like a picture of an electorate that is closely engaged with this issue; it tells us three-quarters of New Zealanders do care about the GCSB Bill. But 75% on its own means nothing. Polls told us that 80% of the electorate opposed asset sales, and look how that worked out. This poll also tells us how much they care, and the answer is: only 30% are very concerned, and 25% aren’t concerned at all. More than half trust the government to “protect their right to privacy while maintaining national security”.
Key and his government will have much better polling than this, and broken down by party allegiance, too, and that’s important — Key would be perfectly happy to alienate 30%, or even 40% of the population as long as they’re all committed Labour and Green voters, and more than half overall still basically trust him. Key said people were more interested in snapper quotas than the GCSB bill, and he’s probably right — if you read that as “people who might actually vote for him.”
What was the performance in aid of?
The major effect of this campaign was to give the activist community something to believe in, a sense that they were Doing Something, rather than just sitting there while their freedoms got gutted. It was very much attuned towards focusing existing opposition, rather than towards expanding that opposition. (This was true to a lesser extent of the public meetings and mass rallies, which effectively church services, but these did also have an important role in disseminating evidence and bringing the discourse into the mass media).
The effect has been clear: there has been no effect. While opinion polling for the left has picked up in the last few days, it remains to be seen whether this will persist.
Although this one was poorly-executed I also don’t think a “cross the floor” campaign was necessarily a bad idea. Theatre matters. Morale matters. For all the criticism, there are many positives here. One is that people have gotten angry — even if it’s only a relatively small cadre of activists, that’s something we haven’t really seen much of recently. And there are some signs the discord may spread further (though not much further, as yet).
But while Do Something campaigns can be worthy in terms of making people feel better about losing, that is often all they are good for. They are often not very effective in terms of actually winning. This campaign worked well as a salve, but as far as effectiveness goes it was badly framed and focused on the wrong objective. It was both too partisan to draw in broad support from across the ideological spectrum, and then, later (once its ideological hostility was confirmed) began to treat the government as only a semi-hostile force that might be reasoned with. A less-ideological campaign to begin with, hardening into a more rigorous strategy as it became clear that the government would remain intransigent would likely have been more effective if it could have been stitched together (admittedly a big if).
Further, focusing on the bill’s passage was unrealistic. It was a fair enough interim goal, but more realistic is to focus on the repeal of the bill — now act — when Labour and the Greens are next in government, and to use it as a lever to assist them into government. Good progress has been made towards this as well, especially in securing what seems to be solid assurances of repeal from Labour, whose prior form on civil liberties has been very mixed.
What remains to be seen is if those involved can maintain momentum for another year. If they can, and this kicks off a 14-month campaign season, then it will have been a triumph, in spite of its tactical failure.
The merit of a proposition can be judged by the strength of the argument in support or defense of it. In the case of the proposed changes to the GCSB and TICS Acts, the government’s argument has basically reduced to claims that terrorists will strike if the bills do not pass, perhaps even using weapons of mass destruction. More than an argument in favor of the bills, it is a sign of desperation on the part of a government unwilling to level with the public on its real intent.
To begin with, counter-terrorism is a very small part of what intelligence agencies do. Ninety percent of intelligence collection and analysis, to include its sub-set of electronic espionage and counterespionage, is focused on traditional corporate, diplomatic and military intelligence gathering. That is true for the Five Eyes/Echelon signals intelligence network and even more so for countries that are not on the front lines of the so-called War on Terrorism.
Yet countering “terrorism” has become the buzz word used by politicians to justify the expansion of the security apparatus in all its forms, to include the militarization of police functions and extension of powers of search and surveillance. It is the fig leaf that covers a multitude of sins perpetrated by the state in the name of national security.
This is an important point because as nasty as it is, terrorism is not an existential threat to any established state, much less a consolidated democracy. Viewed objectively, it can be properly seen is a crime of violence most often carried out as an irregular warfare tactic for ideological reasons. In the hands of non-state actors it is a weapon of the militarily weak that cannot be used regularly and systematically against a broad array of targets in the face of state enforced counter-measures. Although impossible to eliminate in its entirety, especially in its small cell or lone wolf application, this type of terrorism (i.e. in John Key’s airport bomb hypothetical) is a type of criminal violence best handled by the police using the intelligence made available by human as well as signals and technical intelligence agencies.
That may or may not involve electronic eavesdropping of a targeted sort. What is not needed to counter terrorism is blanket adoption of draconian security laws that restrict individual and collective freedoms, including the right to privacy. Oppressing the majority out of fear of an extremist few is counter-productive for no other reason than doing so plays into the hands of the aggressor.
In any event New Zealand is not on the front line of the War on Terrorism. Its threat environment is different than that of Australia, the UK and the US. It is more akin to (yet less than) that of Canada, and it is telling that Canada has resisted moves to closely align its domestic intelligence gathering powers with that of its Northern Hemisphere partners. The Canadians well understand the hierarchy of threats confronting them, and in light of that have shied away from the type of legislation currently being proposed in New Zealand.
If anything, the Canadian government knows that closer public alignment with the US and UK on security issues invites greater risk of attack from those engaged in armed conflict with them. It also understands that what irregular threats exist for Canada, they are more likely to be internal and related to domestic policy issues than external in origin or manifestation. New Zealand is similar in both regards.
What this means is that the specter of terrorism raised by John Key is a dark chimera that has little connection to New Zealand’s real threats, but which is used to defend the passing of security legislation that is more appropriate for the threat environment in Pakistan or Yemen than that of the South Pacific.
In recent years cyber espionage has become the predominant form of signals intelligence threat, to include that in New Zealand. The focus of attention of Five Eyes and other signals intelligence agencies is increasingly on fiber optic cables, routers, switches and the computers that use them, as opposed to radio and satellite intercepts (even if the latter remains a priority for Echelon). In pursuit of effective counter-measures, the Echelon partners have developed sophisticated labor-savings software such as PRISM and XKeyscore that filter the first cut on zillions of bytes of electronic data (the so-called meta-data), thereby making it easier for human analysts to target specific communications based upon keywords, phrases and usage patterns.
This mass trawling through personal as well as institutional electronic communications is indeed efficient, and not problematic for countries under non-democratic rule, but poses a problem for liberal democracies where the right to privacy and presumption of innocence go hand-in-hand as the bedrocks of citizenship.
Cyber espionage in New Zealand is mostly but not exclusively perpetrated by foreign state and non-state actors seeking to access sensitive corporate, political and security information. This includes back-door access via personal computers and electronic devices into work computers of targeted sectors. Since New Zealand has the most porous internet security of the Five Eyes partners and because its economic and political decison-making elite is relatively small in comparison, it is considered to be the weak link in the network by adversaries and allies alike.
Be it by groups such as Anonymous or by state agencies such as Chinese military intelligence (and there are many others), it is estimated that New Zealand computer networks are probed dozens of times a year (at least as far as what has been publicly admitted by the government). Thus the interest in increasing the GCSB’s cyber-securty function in order to bolster the defensive aspect of local cyber intelligence (targeted hacking of foreign networks being the offensive side).
The hard fact is that cyber espionage and counter-espionage is the newest and increasingly most pervasive form of spying and is here to stay, so New Zealand has to lift its game in that field of play.
This is the real reason why the Bills have been introduced. The trouble is that they contain a very strong offensive aspect to them, in part owing to the blurred nature of cyber espionage that does not conform easily to the foreign versus domestic dichotomy traditionally used to partition internal from foreign intelligence gathering. Threats now are seen as “glocal” or “intermestic,” and thus offensive cyber intelligence operations are run side-by-side with domestic counter-intelligence (defensive) work. That includes meta data mining on home soil, and the sharing of that data with Echelon partners.
Rather than honestly reveal the true reasons why the amendments to the GCSB and TICS Acts are being proposed, the National government has resorted to the old canard about terrorism. It may be doing so because it is undiplomatic to point out that its second largest trade partner has been accused by New Zealand’s strongest security and intelligence partners of being the source of most cyber attacks on their respective and shared computer networks. It may be doing so because it assumes that most people simply do not care about issues of security and intelligence, and it might be right. But whatever its rationale, its proposals are way over the top given the realities of New Zealand’s position in world affairs and its history as a democratic polity.
There is much more that is wrong with the New Zealand intelligence community–the lack of effective and independent oversight, the political manipulation of intelligence flows, the overly broad definition of national security and threats to it being foremost amongst them. It is therefore not surprising that in the very framing of the debate about the GCSB and TICS Bills, the government has resorted to bluster and fear-mongering rather than outline the real thrust of its changes.
That is a pity. Had it done so it might have been able to reach a compromise on cyber security more appropriate for a small liberal democracy on the periphery of the major conflicts of our times. However, as things stand New Zealand is about to be saddled with a cyber-security apparatus apparatus more similar to that of Singapore than those of Belgium, Norway or Uruguay.
That pretty much says it all about how National views the world.