Category: NZ Security

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Dismissing Skullduggery.

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.

 

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Monitoring Syrians and Supplicants.

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.

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Coleman’s Cultural Cringe Moment.

For some time I have had the impression that Defense Minister Jonathan Coleman is out of his depth on issues of defense and security, so I was not surprised by his joyful celebration of the signing of a bi-lateral defense pact with the US. Master of the flak jacket photo op, it was all sunshine and roses for Dr. Coleman at the Pentagon press conference, where he emphasized that US and NZDF troops would be training and working together on peacekeeping and humanitarian assistance missions in between group hugs and port visits. He seemed blissfuly unaware that US Defense Secretary Chuck Hagel, standing beside him at the press conference, made no mention of the kumbaya aspects of the bilateral, instead referring to the combat integration benefits of closer military-to-military relations.

What I was surprised at was how provincial and just plain goofy Coleman appeared to be. Among other country bumpkin moments, he dismissed concerns about US spying on New Zealand by referencing an editorial cartoon that had spies falling asleep listening to NZ communications; he outright lied and said that the NZ government would not say anything in private that it would not say in public (which makes its silence on the Trans-Pacific Partnership negotiations all the more suspicious); he never once countenanced the thought that the bilateral might be part of the US strategic pivot towards Asia (in a military way), or that China might view the bilateral with some concern; and for a Pièce de résistance, he whipped out a junior sized All Blacks jersey and foisted it on the unsuspecting Hagel.

The last moment was gold. Hagel acted as if he was not sure what the piece of black cloth was all about. A pirate flag? A tea towel? Something for Halloween? Then Coleman did the most crassly egregious act of sponsor placement I have ever seen in an official government ceremony by turning the jersey to the cameras with all front logos on display (the back had Hagel’s name and the number 1 on it).  AIG and Adidas would not have believed their luck, but what does it say about Dr. Coleman and his government that he/they thought it appropriate to shill for sports team sponsors at such an event?

The usual protocol for government to government exchanges of sporting symbols (most often on the occasion of bi- or multination sporting events) is to keep the colors and national crests but not the commercial logos. Such exchanges are done at the conclusion of formal meetings, with approved media doing the coverage on cue. Otherwise, the exchange is approved at press conference photo opportunities by prior consent. This avoids impromptu, ad lib or extemporaneous embarrassments or hijacks of the media op, to say nothing of security breaches.

On this the ritual of public diplomacy is pretty clear: public posturing and grandstanding is expected, but surprises are not.

In this instance Secretary Hagel was clearly surprised by the unilateral token of affection. He had nothing to give in return in front of the cameras. That means that the NZ embassy in Washington was incompetent, deliberately mean or ignored in the decision as to choice of gift as well as the way in which to present it, because it is brutally clear that Coleman and his staff were clueless as to the symbolism and significance of their preferred option for a unilateral, unscripted gift.

Lets ponder this. Coleman and his staff decided that the best gift to give the US Secretary of Defense on the occasion of signing a major bilateral military agreement ending years of estrangement was a replica jersey for a commonwealth sport barely recognized outside of some hard core devotee circles in the US. He might as well given him a surf lifesaving jersey.

I would have thought that a Mere pounamu, or better yet a Taiaha or Pouwhenua (to signify continued distance), would have been more appropriate for the occasion. With some advance warning (perhaps in consultation with the US embassy in Wellington), such a gift would be appreciated in its full significance by the US counterparts and transmitted as such to the interested public. Instead, the most powerful US civilian decision maker on military matters was given a piece of quick-dry, stretchable artificial cloth with corporate logos as a symbol of New Zealand’s commitment to first-tier military relations.

Coleman compounded the back-handed compliment with the jersey sponsorship display, thereby commercializing the event. To be honest, I could not believe what I was seeing and can only imagine what the Americans thought. I say this because in a former life I was party to such official ceremonies involving the US Defense Department and allied nation officials, and it was simply unimaginable that someone would attempt to push product, however unintentionally, during a symbolic gift exchange. That is why the display was so utterly cringe worthy.

In general though, I was not surprised by Coleman’s hillbilly-in-the-big-city moment. After all, if the Prime Minister, as Minister of Intelligence and Security, says that he cannot be bothered asking the GCSB questions about US spying on its allies, then it is no wonder that Dr. Coleman thinks that US spies are asleep and the US government is up with the play when it comes to the All Black nation.

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Espiando nossos amigos (Spying on our friends).

Well well well.

Edward Snowden has revealed that the Canadian signals intelligence agency Communications Security Establishment Canada (CSEC), a Five Eyes partner of New Zealand’s signals intelligence agency GCSB, has been electronically spying on a communications network operated by the Brazilian mines and energy ministry. Brazil has a strategy of using its natural resources exploitation to become a major power, and the Ministry of Mining and Energy (MME) is the coordination node for that strategy. The network connected the ministry, state run oil and mine companies and private Brazilian energy firms, and was a forum where subjects such as investment strategies, negotiating positions and other sensitive commercial information were discussed. This included comunications with firms such as Petrobras, the Brazilian state-owned oil conglomerate.

Needless to say, the MME communications network, presumably internet and telephonic in nature, would be of value to competitors or others seeking to countervail Brazilian economic growth and power projection. With its own energy sector comprising a vital part of Canada’s economy (often in competition with Brazilian interests), it should not be entirely surprising that the Canadian government authorized this instance of economic espionage.

CSEC shared what it obtained with its Five Eyes partners. That particular revelation follows on the heels of Snowden disclosing that the NSA tapped into the personal as well as official communications of Brazilian President Dilma Rousseff, although it is unclear if these were also shared with the other Five Eyes partners.

The CESC angle is interesting because Brazil is no adversary of the Five Eyes nations (in fact, it has a history of alliance with the US) and because Petrobras is a direct competitor of US and Canadian energy firms in a number of markets, including some in the Asia-Pacific. Petrobras has also been involved in pushing for off-shore oil and gas exploration rights in New Zealand, which means that the New Zealand government is quite possibly privy, in advance and thanks to the Canadians, to the Brazilian’s internal logics and bottom lines with regards to those ventures.

If so, it is possible that the recently passed legislation to severely curtail sea demonstrations against oil and gas exploration in New Zealand waters was motivated not by a direct request from Petrobras and other energy sector actors, but by direct knowledge of its internal concerns about the cost impact of such demonstrations if left unchecked. If this speculation is correct, it would be a twist to the economic espionage tale because the National government used the information gleaned by Echelon to help rather than hinder the activities of a foreign based private firm facing strong domestic opposition.

Whatever the specifics, the Canadian-Brazilian spy saga confirms what Snowden has previously disclosed, which is that the Five Eyes network routinely engages in economic espionage on allies as well as adversaries. Brazil has protested the intrusions vigorously, most recently by calling in the Canadian ambassador in Brasilia to complain about the breach of trust and previously by means of President Rousseff’s scathing speech to the UN General Assembly where she denounced the practice of spying on friends and partners. The Brazilians denunciations are not just rhetoric–they are actively looking for ways to create alternative internet routing systems that can circumvent US dominance of fiber optic cable networks. They have been joined in this initiative by–no surprises here–the Chinese.

Given these revelations, the questions begs as to what the GCSB is doing when it comes to economic espionage on allies or partners as well as adversaries. Given the Canadian revelations and given that Canada is considered to be a junior partner in Echelon/Five Eyes just like New Zealand, by what means does the GCSB do so and does it share the information that it collects with its Five Eyes counterparts?

We must remember that it is already known that the GCSB has eavesdropped on Japanese diplomatic communications regarding whaling and on UN communications in the build up to both Gulf Wars. Although this is a more traditional form of signals intelligence gathering in that it targeted diplomatic intercepts, the communications being intercepted were from a country that New Zealand is friendly with and an organization that New Zealand has been a champion of (and in which it is lobbying for a seat on the Security Council).

The revelations are important because it suggests that economic espionage by the Five Eyes network is pervasive and equally shared amongst the partners.

If I were involved with a Chinese firm, to say nothing of Petrobras and any number of other foreign commercial entities (state or private), I would be concerned about doing business in and with New Zealand given what we now know (so far–there is more to come). Forget milk powder contamination and other production snafus: the real issue is not so much product quality or reliability but whether New Zealand can be trusted to not use its signals intelligence capabilities and network to engage in the type of economic espionage the Canadians and Americans are clearly doing (and one would assume the Australians and British are doing as well). That the GCSB can now do it locally as well as from afar (thanks to the recently passed GCSB Act amendments) should double the concern.

The same concerns might be raised by the eight countries involved in negotiating the Trans-Pacific Partnership (TPP) trade and investment agreement that are not Echelon members. Australia, Canada, New Zealand and the US are parties to the negotiations, which given the Snowden revelations raises questions as to what they might covertly know about the other countries’ negotiating positions and about how much of what they might know is shared exclusively amongst themselves in order to better coordinate their approaches to the negotiations.

It should also be remembered that the NSA used private telecommunications firms and other corporate entities to cast its signals trolling net overseas. Does the GCSB do the same?

Of course, other countries engage in economic espionage. The Chinese, Russians, French and Israelis are known for it. But none of these countries have had their means and targets exposed in public, nor do they have the reach of the Five Eyes network at their disposal.

It is a big difference. If the Chinese, Russians or many others, either directly via state agencies or through  any number of non-state (including corporate) fronts, want to obtain signals intelligence abroad, they have to do so covertly. But the Five Eyes partners freely share their signals intelligence. In other words, non-Five Eyes signals intelligence agencies have to try and sneak through back doors to access the sensitive information of others, whereas the Echelon members freely pass surreptitiously gathered information through the front doors of their respective signals intelligence agencies.

Perhaps that is why the GCSB and TSIC Bills have been pushed so hard and so fast by the National government. The concern was not about terrorism, which served as a good fig leaf. The concern was not just defensive, in countering cyber and signals espionage on New Zealand targets and interests No, the concern was as much if not more offensive in nature in that the new powers of the GCSB facilitates exactly the type of spying that the CSEC was engaged in with regard to Brazil.

More precisely, before the passage of the Bills (I am assuming that the TSIC bill will pass) the GCSB could engage in economic espionage on friendly countries and firms but the legality of it doing so was in question when it came to it engaging in such spying (as well as more traditional types of signals intelligence) on New Zealand soil. Now it can do so legally. Any country or firm not part of the Five Eyes network that proposes to do business with or in New Zealand needs to take account of that.

The bottom line is that the Snowden revelations increasingly point to GCSB involvement in economic espionage of the first order. It may be only a matter of time before he drops a bombshell about the who, what and where of GCSB espionage. For a minuscule isolated nation heavily dependent on trade with foreign partners for its economic prosperity, this could be a potentially disastrous development.

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Crying wolf on terrorism for political gain.

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.

 

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Three perspectives on the spy bills.

Selwyn Manning has done a Q&A with three individuals who have different and at times conflicting views of the GCSB and TICS Bills, although all three are critically opposed to the bills in their present form. One is a strategic analyst, one is an internet entrepeneur and one is an IT lawyer. John Key may dismiss them as uninformed, politically motivated or holding some hidden agenda, but their differing takes on the issue may make for some food for thought for KP readers.

The Q&A can be found here.

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Long and short of the NZDF spying scandal.

Accusations that the NZDF may have been spying on journalist Jon Stephenson during or after he was in Afghanistan researching what turned into a series of very critical stories about the actuality of SAS operations in support of the elite Afghan counter-terrorism Crisis Response Unit (CRU) have sparked both public outrage and government backlash. Numerous media entities and civil libertarians have protested the alleged spying as an infringement on press freedom, with the story now picked up by the US press because Mr. Stephenson was working for a US based news service when the spying supposedly occurred, and the spying may have been carried out by US agencies.

It is early days yet in the development of the story, but there are numerous angles that if explored could lead to a can of worms being opened on the NZDF and NZ government as well as the US administration. More immediately, if what has been made public so far is accurate then there are some NZ-focused issues to ponder, which can be broadly divided into matters of short and long-term consequence.

The specific accusation is that NZDF obtained meta-data about Mr. Stephenson’s phone records from US intelligence sources while he was in Kabul. This meta-data included the phone numbers of those he contacted or who called him while in theater, which could be “mined” and subject to network analysis in order to create signal maps and flow charts of the patterns of communication between them as well as with Mr. Stephenson (what have been called signals meta-data “trees”).

Implicit in the original story by Nicky Hager is the possibility that the content of Mr. Stephenson’s conversations and possibly his emails were accessed by the NZDF, or at least by foreign partners who then shared that information with the NZDF.

This is the short aspect of the story. Mr. Hager believes that Mr. Stephenson was subject to an NSA signals trolling scheme akin to that done by the PRISM program, and that the NZDF may have requested that Mr. Stephenson be surveilled by the NSA as a result of Stephenson’s investigation but also because the NZDF could not spy on him directly. However, since the SIS and GCSB had officers on the ground in Kabul and shared workspace with NSA and CIA personnel, the possibility was raised that they were somehow involved in the electronic monitoring of Mr. Stephenson, either has initiators or recipients of the NSA meta-data mining of his communications.

This may or may not prove true. The government and NZDF flatly deny that any spying, whether by the NSA, GCSB or NZDF, was done on Mr. Stephenson. Mr. Hager claims to have evidence that NZDF personnel obtained Mr. Stephenson’s telephone meta-data (presumably he has at least been shown that data by the NZDF personnel who are his sources).

One of these versions is apparently false, although there may be a twist to the story that bridges the veracity gap between them.

Since Mr. Stephenson was in a declared conflict zone in which a multinational military coalition was engaged, he was inevitably subject to military intelligence collection. Military organizations and their various service branches maintain human and signals intelligence collection units that focus on tactical aspects of the conflict zone. That would, at a minimum, include canvassing local telephone and email networks for information on potential threats and contextual background. Such collection is designed to facilitate “actionable” intelligence: information that can be used to influence the political environment as well as the kinetic operations that occur within it.

It is possible that Mr. Stephenson’s phone records were collected by an ISAF military signals intelligence unit. It probably was that of a US military unit. That unit may have identified Mr. Stephenson as a New Zealander and passed his information on to one of the intelligence shops located at Bagram Air Force base or elsewhere for sharing with the NZDF as a professional courtesy and a “head’s up” on who Mr. Stephenson was involved with.

If this is true, then Mr. Hager’s NSA/PRISM/GCSB/NZDF spying scenario is wrong. However, the issue does not end there. The big questions are whether the NZDF requested that an allied military signals intelligence unit spy on Mr. Stephenson, or if not, what it did with the information about Mr. Stephenson volunteered to it by its ally.

If the latter is the case, then it is possible that the NZDF took no action because it either considered the information marginal to its intelligence concerns or improper for it to receive and use. That in turn could have led to the destruction of that meta-data after it was received.

On the other hand, if the NZDF requested said information about Mr. Stephenson from a military intelligence partner, that would make any subsequent meta-data record destruction an attempt to eliminate evidence of that request or the use to which the data-mining was put.

It should be noted that such spying in conflict zones is usual and to be expected by anyone operating with them, journalists and non-journalists alike. Moreover, it is perfectly legal as well as reasonable for the NZDF to share information with its military intelligence partners, even if it includes information about unaffiliated NZ citizens operating in conflict zones in which the NZDF is deployed. Thus it would not have been unlawful for the NZDF to obtain Mr. Stephenson’s electronic meta-data whether it initiated its collection or merely received the results.

This extends to its use of the SIS or GCSB to assist in said collection, since the SIS is empowered to spy on NZ citizens and the GCSB was working in a foreign theater in which Mr. Stephenson was working for a “foreign entity” (McClatchy New Service), therefore making him a legitimate target under the 2003 GCSB Act. Whether one or both of these agencies was involved in the spying on Mr. Stephenson, should it have occurred, the eavesdropping could legally be conducted without warrant, again owing to situational circumstance.

However, just because something is legal does not make it right. This is where the long of the story comes into play.

Mr. Hager also revealed the existence of an NZDF operations manual, apparently drafted in 2003 and revised in 2005, that included at least “certain investigative journalists” along with hackers, foreign spy agencies, ideological extremists, disloyal employees, interest groups, and criminal organizations in the category of “subversive” threats (although it remains unclear as to when that particular passage was added to the text and who authored and authorized it). The definition of subversion was stretched to include those whose activities could undermine public morale or confidence in the government and NZDF. This included “political” activities deemed inimical to the NZDF image or reputation.

Whether it was included in the original version or added some time later (perhaps very recently), that definition of subversive threats is astounding. The language used borrows directly from the lexicon of the Pinochet dictatorship and Argentine Junta. It completely ignores the concept of press freedom in a democracy, which is premised on the autonomous separation of the media and the military as institutions. It lumps in so-defined subversive threats with physical threats to operational security in the field. That makes those identified as subversives enemies rather than adversaries, which allows them to be treated accordingly.

The wording of the passage about subversive threats in this manual says more about those who drafted it and the NZDF leadership that allowed it to become doctrine than it does about any real threat posed by journalists to the NZDF or government. Being embarrassed by critical reporting is not akin to being shot at. Even if written in the fevered years immediately after 9/11, the authors of that passage (and presumably others in the manual) display an authoritarian, anti-democratic mindset that is fundamentally inimical to democratic civil-military relations and, for that matter, democratic military professionalism.

Chris Trotter has noted that the NZDF, as a military organization, is authoritarian in nature and thus inherently un-, if not anti-democratic. I respect his view but disagree to an extent. Virtually all social organizations are hierarchical in nature–families, churches, private firms, unions, schools, bureaucracies, political parties and yes, the armed forces, police and intelligence agencies. That makes the egalitarian bases of democratic political society unlike virtually all other forms of social organization.

In other words, we are socialized in a hierarchical world and it is democracy as a political form that is the unnatural outlier.

Even so, although hierarchy can and often does tend towards authoritarianism, in democracies social organizations that are hierarchically constructed bow to the egalitarian meta-logic that posits that in their political interactions they are bound by notions of mutual respect, independence, corporate autonomy and non-interference. That is, they practice at a meta-level what they do not at the macro or micro-levels: in their interactions with each other groups forgo the hierarchical disposition that characterizes their internal governance.

This is important because the NZDF field manual that Mr. Hager exposed and whose existence is now confirmed by the government displays an authoritarian mindset and operational perspective that transcends the necessary hierarchy of NZDF organization. The NZDF is not inherently authoritarian because it is hierarchical in nature, but because, if the spying allegations are correct in light of the manual’s language about threats requiring military countering, its leadership displays an authoritarian disposition when it comes to things it finds objectionable, including pesky reporters (I shall leave aside Mr. Trotter’s remarks about military allegiance to the Queen rather than government or citizenry, although I take his point as to where its loyalty is directed and the impact that has on its transparency and adherence to democratic norms).

In sum: Consider what the manual says with regards to subversive threats in light of the well-publicized NZDF attacks on Mr. Stephenson’s professional and personal integrity that resulted in the defamation trial recently concluded (attacks that could well fit within the “counter-intelligence operations” recommended in the manual). Add in the claims by Mr. Stephenson that a senior military officer uttered death threats against him (the subject of a police complaint in 2011 that was not actioned). Factor in the NZDF admission in the defamation trial that it tracked Mr. Stephenson’s movements along with the possibility that the NZDF did acquire and utilize Mr. Stephenson’s telephone communications records in a capacity other than to detect tactical threats to units in theater. Further include Mr. Hager’s findings in his book Other Peoples Wars, in which the NZDF was seen to disregard government instructions regarding its conduct in foreign theaters and collaborated extensively with US intelligence (both military and civilian) in places like Bamiyan in spite of its repeated denials that it was doing anything other than building schools and roads in that province.

The conclusion? In light of this sequence of events it is very possible that the NZDF  has systematically operated in an unprofessional and anti-democratic fashion for at least a decade, and particularly with regard to Mr. Stephenson.

This is a serious matter because it gives the impression that the NZDF has gone rogue (assuming that the governments of the day were, in fact, unaware of the language in the field manual or of the alleged spying). Rectifying this institutional anomaly is important. How to do so is critical.

It is not enough to blame the previous government and retired NZDF commanders for the manual, then excise the offending passage while maintaining that no NZDF records of spying on Mr. Stephenson exist. Instead, the NZDF leadership during this time period needs to be held accountable for allowing anti-democratic attitudes and practices to take root within it and, if need be, action needs to be taken against those who authorized the language of the manual and/or the spying if it happened. Only that way can confidence in NZDF accountability and commitment to democratic principles be restored.

In order for any of this to happen, yet another inquiry needs to be launched. Given the debates about the GCSB and TICS Bills and ongoing concerns about Police and SIS behaviour, that says something about the state of New Zealand’s security community at the moment.

 

 

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The political logic behind National’s proposed GCSB reforms.

This weekend there will be national protests against the National government bills amending the 2003 GCSB and 2004 TICS Acts. Although the protests have garnered broad support across the political spectrum, they are likely to turn into generic rant fests against capitalism, imperialism, colonialism, and assorted other maladies rooted in the war-mongering Zionist 9/11 insider white corporate propertied Trilateralist patriarchy rather than a focused argument against the extension of the GCSB’s domestic spying powers. That is because the organizers, in Auckland at least, are the usual suspects seen at pretty much every protest, and who have agendas that supersede concerns about espionage.

The dress code will largely be black, with Vendetta masks optional.

In a way it is natural for the so-called rent a mob to take charge of the anti-GCSB protests. After all, they have the organizational capability, collective commitment and personal experience in doing such things, so who can blame them if they attach a few other grievances to the major subject of the protest? Who else can pull together major rallies on short notice, including the logistics of using public spaces, channeling marchers, making banners, supplying audio equipment and providing speakers? Most of those who have comparable skills are not exactly the types who would want to be part of such a “progressive” demonstration, and certainly would not want to be associated with the organizers of these protests (I am thinking of church and conservative groups here).

Having said that, this post is about what is likely to be a very effective National strategy for getting its proposed reforms passed in spite of the groundswell of opposition to them. It works like this:

National introduced reforms that grossly expand the GCSB’s powers of domestic espionage, using changes to the TCIS Act and the need for “infrastructure protection” as part of that new charter. It threw in some very minor cosmetic changes using the Kitteridge Report as a point of reference. It went for the overreach, proposing to allow, with cabinet approval, the GCSB to spy on behalf of agencies that have nothing to do with national security as well as conduct warrantless espionage on foreign entities and persons, to include NZ citizens employed by foreign firms and agencies (be they diplomatic missions, NGOs or private firms). It demands that telcos provide apriori backdoor access to their cable infrastructure for the purposes of both targeted and meta-data mining.

There is much more but this is the gist: it no only retroactively legalizes the illegal spying done on Kim Dotcom. It extends the scope of that type of spying much further. And as before, all of the domestic data collected under the new Acts can and likely will be shared with foreign intelligence partners, particularly those grouped in the 5 Eyes network.

National knew that Labour and the Greens will oppose the Bills for political and principled reasons, respectively, but does not care because it knew that it only had to win over Winston Peters or Peter Dunne to secure passage of the legislation. Since both of these one man shows are political opportunists at best, a few bones thrown their way in exchange for minor concessions was seen to do the trick.

As it turns out, Dunne leapt/caved first. In exchange for more cosmetic changes in oversight and reporting (none of which fundamentally alter the way in which the NZ intelligence community operates or the scope of its operations), the setting of a 2015 date for a general review of the NZ intelligence community and one significant backdown (the removal of cabinet authorization for GCSB assistance to agencies other than the Police, SIS and NZDF, which will now have to be authorized via legislation), Dunne has pledged his vote for the Bills. They can now pass essentially intact.

A brief aside: It would have been worth considering allowing the GCSB to render assistance by charter to agencies such as Customs and Immigration as well as the SIS, Police and Defense because they clearly have a national security role. Moreover, it may not be widely understood but the GCSB offers more than equipment and technicians to its counterparts. It has linguists, interpreters, engineers and other specialists in its ranks who can be of use to domestic security agencies on a case by case basis. The Dunne concessions do not address the how, why and when of any of this.

Getting back to the main theme, National knows that by pushing a maximalist line with regard to the expansion of GCSB powers it could accept something moderately less without discernible harm to its overall intent. Besides Dunne’s and Peters’ venality, it relies on generalized public apathy regarding the issue (although it must have been surprised by the extent of opposition that eventuated, especially from high-profile groups and persons), and it knows that it can dismiss any opposition as naive, politically motivated or both (which John Key has now done, and which this week’s protests will confirm in the minds of those supportive of or undecided about the proposed changes).

National also knows that should there be change of government in 2014, it is unlikely that a Labour/Green coalition will have intelligence community reform as a priority. If its modern history is any indication Labour will be quite comfortable with the amended legislation. Recall that it was under the 5th Labour government that most of the dubious GCSB spying on 88 NZ citizens and residents was done, and Labour will be able to use the revamped GCSB powers for its own purposes should it feel the need to. It is naive to believe that different governments do not have different intelligence priorities, something that is manifest in intelligence agency tasking.

One only needs to think of the role of the SIS in the Zaoui case and the suspected role of both the SIS and GCSB in the Urewera case to understand the concept as well as Labour’s disposition when it comes to such things. With National the shift in intelligence priorities is seen in its focus on commercial relations, to include patent and copyright issues that have little to do with national security but all to do with alliance relationships. Either way, governments call the shots when it come to intelligence priorities.

Labour and the Greens will have reversing other National policy reforms as the first order of business, be it the Holidays Act, aspects of the Employment Relations Act, issues connected with Health, Education, WINZ beneficiaries, public sector employment, economic use of public lands, etc. That list has far more immediate domestic political impact than revisiting the GCSB and TCIS Acts, especially if the expanded powers granted the GCSB are used with a modicum of discretion and selectivity.

Should Labour and the Greens assume government in 2014, they are saddled with running the 2015 general inquiry about the NZ intelligence community. That will take public time and political capital, which leaves less of each for the promotion of other initiatives. This could leave a Labour/Green government spread thin when it comes to imposing legislative and policy agendas, especially when considering that the partner’s priorities do not universally coincide in the first place (less so when other minority parties are involved). That could undermine the stability of the coalition, wreak their overlapped policy platforms, make for internecine conflict and set the stage for a National return to government in 2017.

Barring some unexpected reversal of fortune in the next few weeks, when it comes to domestic espionage and the GCSB’s expanded role in it, what we have here is a done deal. The Bills will pass. There will be more spies amongst us.

National’s short-term political logic looks to have proven correct, so far. Time will tell if its longer-term strategy will pay off as well.

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Better to pause than to rush.

The Parliamentary Select Committee hearings on the Bills to amend the 2003 GCSB Act and 2004 Telecommunications (Interception Capability and Security) Act have begun this week. There is much interest in the hearings not only because of the content of the Bills under consideration, but also because they are open to the public. The cast of characters scheduled to present is as colorful as it is deep: Kim Dotcom, the CTU, the Law Society, Internet NZ and several telecommunications firms are among those representing.

Even so, some of the public discussion surrounding the proposed reforms has been stunningly stupid. In recent weeks the Herald featured two editorials supporting the proposed changes. The first claimed that the changes would help prevent a Boston Bombing scenario (a claim that the Prime Minister has parroted; Winston Peters prefers to use the train station bombing hypothetical). That ignores the fact that US intelligence agencies could not do so even with their massive meta data-mining schemes and a tip from Russian authorities. Nor could they prevent the Fort Hood massacre even though the perpetrator was in regular email contact with an al-Qaeda leader in Yemen prior to the shooting.

Worse yet, the Prime Minister and others such as this editorial writer make it seem as if counter-terrorism is the primary function of intelligence operations. It is not. Traditional inter-state espionage, no matter what the technologies used, remain the major part of intelligence work. The counter-terrorism angle provides a convenient fig leaf for the expansion of intelligence networks and the scope of their authority, but in reality occupies a relatively small amount of intelligence resources and attention. This is particularly true for countries that are not on the front lines of the so-called “war on terrorism.”

The second editorial, by a supposed former intelligence officer, claimed that those who oppose the Bill are scaremongers and uninformed, even though the Law Society, Internet NZ and several other professional groups have registered their opposition on legal as well as technical grounds. The author also asserted that because civil servants drafted the proposed changes, we should accept them in good faith. Yeah right.

I beg to differ. There is clearly a need to “tidy up” the legal framework governing GCSB activities on home soil because under the current Act the role of the GCSB in domestic espionage is murky. But civil libertarians and privacy rights activists have legitimate reason to oppose the GCSB Bill in its present form.

The Bill expands the terms and conditions under which the GCSB can engage in domestic espionage, including reasons that have nothing to do with national security and for agencies unrelated to it. Those responsible for issuing the warrants under which the GCSB would “assist” domestic agencies would be those who currently do so, in a cross-signed fashion in the case of spying on New Zealand citizens and residents. If the targeted entity falls under the foreign intelligence collection mandate of the GCSB (which targets “foreign entities,” in New Zealand, including private firms as well as diplomatic missions), warrantless intercepts can be authorized even if they extend to New Zealanders.

In light of past excesses and mistakes it is evident that leaving warrant issuance to the Prime Minister and a retired judge (the Commissioner for Security Warrants) is pure folly even when done in combination. These are the individuals who were on watch during the Dotcom raid and, in the case of the Prime Minister, claimed ignorance after the fact as to how and why the GCSB became unlawfully involved in it.

The definition of threat to national security under which the GCSB would act is too nebulous and broad to prevent mission creep into common law enforcement and encroachments on individual and group privacy. For example, under the proposed legislation the GCSB could assist the Department of Primary Industries to spy on environmental activists on behalf of fishing, logging or mining interests if their protests were deemed injurious to the economic well-being of the nation, which can be construed as a threat to national security under current definition of the term.

The oversight mechanisms proposed by the Kitteridge Report are a veneer on what currently exists. Even if bolstered by a Deputy and some additional clerical staff and funding, the Inspector General of Intelligence and Security is simply too dependent and too powerless to effectively serve as the overseer of the New Zealand intelligence community. Absent effective independent oversight such as that which could come by making the Inspector General’s office a Department of Parliament responsible to a Parliamentary Committee with powers of compulsion under oath, the room for unaccountable manipulation of intelligence flows and analysis remains great.

The Telecommunications (Interception Capability and Security) BIll that accompanies the GCSB Bill is more draconian than similar legislation under the US Patriot Act. It compels telecommunications companies to provide access to their source and encryption codes (that is, provide warrantless access before the fact to private accounts when no threats are evident). It authorizes GCSB espionage operations without the consent of affected private entities as part of its “information assurance and cyber assurance” function, which is designed to safeguard a broadly defined information infrastructure consisting all forms of telecommunications emissions, systems and networks. In other words, one way or another the GCSB would have the ability to surreptitiously monitor all New Zealand based telecommunications regardless of whether or not they involved clear threats to national security.

Since New Zealand is not a major target of inter-state cyber espionage or in the so-called war on terrorism, that is an overreach. India, Brazil, Italy, Spain, Canada, Germany and many other democracies who arguably are much more at risk for espionage and terrorism do not have such legislation. In most the separation of foreign and domestic espionage is made quite clear in law, with the latter carried out mostly by the Police, national gendarmes or local investigative agencies with help from foreign-focused intelligence agencies only in the most exceptional circumstances (even then, agencies like Interpol exist as the first line of recourse used to facilitate international crime investigations).

What is the problem in requesting voluntary telecommunications company cooperation with national security investigations, particularly when they are clearly focused on clear and present threats? What telecommunications provider would refuse such a request, especially if issued under warrant specifying the reasons? If such a system works for the countries mentioned above, why can it not work here?

The official presumption in the T(ICS) bill that telecommunications firms need to be compelled rather than be allowed to voluntarily cooperate with intelligence agencies on matters of national security says more about the disposition of the government than it does about that of the firms involved.

By expanding the GCSB’s domestic “assistance” role in two capacities (information assurance and cyber security to public and private entities as well as technical assistance to sister agencies), the proposed changes run the risk of deviating it from its main foreign signals intelligence and counter-cyber espionage efforts. It will add a further burden to it’s already stretched staff of analysts, engineers, linguists and cryptographers. Since increased funding and recruitment are circumscribed by the present climate of fiscal austerity, it does not appear likely that resources for the GCSB will be increased commiserate with the increase in its domestic assistance authority.

Interestingly, the GCSB and T(ICS) Bills were proposed soon after issuance of the Kitteridge Report on the GCSB, which was driven by the unlawful electronic monitoring of Kim Dotcom and associates by that agency. Given the level of detail in the Bills, that suggests that they were drafted before Ms. Kitteridge’s findings and recommendations were finalized. This contradicts the government’s claim that the Bills came in response to the findings of that report.

In a world in which threats are increasingly “intermestic” or “glocal” in nature and in which the boundary between national law enforcement and international security is increasingly blurred, there is reason to adjust the legislative apparatus governing the role, scope and functions of the New Zealand intelligence community, including its international commitments. At present the GCSB and sister agencies appear rudderless, unsure of who and what purpose they serve, much less how they should prioritize their essential responsibilities.

This is why a full inquiry into the New Zealand intelligence community is needed before any reforms are made to its legal architecture, especially given that the last review of New Zealand intelligence operations occurred in the 1970s.

The inquiry could well start with exploring what New Zealand’s threat environment consists of now and in the near to medium future, including proximate and distant threats of a physical (environmental and epidemiological), economic, military, diplomatic and criminal nature. It could then turn to outlining the specific meaning of “national security” in light of these threats (with the balance between minimalist and expansive definitions of national security needing to be debated and precisely defined).

It might consider how current policy decisions or orientations can set the stage for the emergence or facilitation of future threats (such as by trying to play off trade and security relations with competing great powers as a form of hedging or strategic balancing act). Having done that, it could proceed to review the way in which the intelligence community operates so as to offer prescriptions for its better tailoring to the threat environment extant and foreseeable.

Much has happened since the last intelligence review, both in terms of the nature of national security threats as well as the technologies they employ and those used to counter them. It is therefore prudent to pause and review how New Zealand intelligence operations are conducted rather than rush to pass legislation that retroactively exculpates past unlawful behavior by the GCSB while expanding the reach of those who authorized it.

 

A short version of this essay appeared in the New Zealand Herald on July 2, 2013 under the title “GCSB bill going too far too fast.”