13 July 2013

NZ Governance of Surveillance

The New Zealand Human Rights Commission has released its report to the Prime Minister on proposed surveillance legislation and changes to the NZ national security regime [PDF].

The legislation follows the Kitteridge Report noted earlier this year and predates recent revelations regarding PRISM, TEMPORA and other large-scale data collection activity in the US, UK and other nations.

The two Bills are the Government Communications Security Bureau and Related Legislation Amendment Bill 2013 (NZ) and the Telecommunications (Interception Capability and Security) Bill 2013 (NZ) .

Chief Commissioner David Rutherford said the Commission used its direct reporting function under the Human Rights Act 1993 (NZ) "due to the seriousness of the proposed Bills’ measures and the need for proper oversight of the surveillance activities of intelligence agencies".
The Commission is concerned that the proposed Bills are wide-reaching without sufficient safeguards against abuse of power. There is inadequate oversight and inadequate provision for ensuring transparency and accountability. The Commission notes media reports that these issues are matters of discussion between some of the leaders of political parties in New Zealand.
The Commission recognises that some level of surveillance is inevitable and justifiable from a human rights perspective in a democratic society. However, surveillance can be subject to human rights principles, protecting human rights and limiting them only when proportionate and justified and in accordance with the law.
The right to privacy is fundamental in a democracy and reinforces other fundamental rights, such as rights to freedom of expression, association and assembly. The proposed restrictions on the right to privacy are too general to be proportionate to the Bills’ objectives.
We note that the Bills were introduced before the recent media exposure of the extent of mass surveillance by some States party to the Five Eyes arrangement. Public trust in Government intelligence agencies is at risk if surveillance activities aren’t being conducted appropriately and seen to be so.
It is in the interests of our intelligence agencies to have appropriate transparency and accountability mechanisms in place to maintain public trust. We believe much of the public’s concerns could be alleviated if there was satisfactory oversight of surveillance powers and we propose an independent cross-party select committee to oversee intelligence agencies.
The Commission’s report recommends:
  • a full and independent inquiry into New Zealand’s intelligence services as soon as possible (with terms of reference agreed on a cross-political party basis), to consider the role and function of NZ intelligence services, their governance and oversight mechanisms and to consider the balance between human rights and national security
  • Stronger accountability and oversight mechanisms, including Parliamentary oversight from a cross-party select committee, in addition to the Inspector-General of Intelligence & Security
  • Amending the Bills in line with the submissions of the New Zealand Law Society and the Legislation Advisory Committee 
  • Taking into account the submissions of Internet New Zealand, particularly as they relate to human rights
  • Human rights training for all members of New Zealand’s intelligence services. 
The Law Society's concerns, in summary, were -
The Bill changes the Government Communications Security Bureau (GCSB) from being a foreign intelligence agency to a mixed foreign and domestic intelligence agency. The Bill empowers the GCSB to spy on New Zealand citizens and residents, and to provide intelligence product to other government agencies in respect of those persons, in a way not previously contemplated and that is inconsistent with the rights to freedom of expression and freedom from unreasonable search and seizure under the New Zealand Bill of Rights Act 1990 (NZBORA) and with privacy interests recognised by New Zealand law.
The Law Society’s concerns regarding the absence of clear justification for these changes are exacerbated by the use of Parliamentary urgency, and the consequent short timeframe provided for consultation and submissions. The Law Society is concerned that, in the absence of compelling grounds for urgency, its use degrades the democratic quality of the legislative process.
The Law Society recommends that more information should be provided to the public regarding the justification for such changes, further debate should be held regarding that justification, further 3 safeguards should be incorporated into the law if reforms are to proceed, and an updated section 7 report should be sought from the Attorney-General.
The Law Society’s submissions on the amendments to the GCSB Act focus on systemic checks that should be put in place to ensure the GCSB powers that are to be extended by the amendments are exercised appropriately. The Law Society also recommends that when the GCSB retains “incidentally obtained intelligence” such retention is required to be certified by the Director of the GCSB. In addition, we make recommendations as to aspects of the drafting of the amendments.
In terms of the proposed amendments to the ISIG Act, the Law Society supports the strengthening of the office of the Inspector-General of Intelligence and Security, although we question whether it is possible for a full and proper analysis of the requirements of the office to be undertaken in circumstances where the full justification for (and with it the intended operational purposes of) the proposed changes to the GCSB Act are unknown. The Law Society recommends that the Inspector- General be required to conduct a full operational review of the GCSB once any amendments to the GCSB Act itself are implemented, in order to report to Parliament as to whether the ISIG Act remains effective in allowing the Inspector-General to independently review and report to Parliament upon the activities of the GCSB. We also make recommendations regarding aspects of the drafting of the proposed amendments.
In terms of the proposed amendments to the ISC Act, the Law Society notes the existing anomaly that the Intelligence and Security Committee (ISC) – unlike Parliamentary select committees – is statutorily limited in its ability to undertake inquiries and investigations of its own volition. The Law Society considers that such an anomaly is not justified, and recommends that the Bill amend the ISC Act to allow the ISC to undertake inquiries into matters which are otherwise within the jurisdiction of the Inspector-General or otherwise prohibited. We also recommend that the requirement for the ISC to report on its activities to Parliament be strengthened, to require the ISC to report on specific matters.
In its report the Commission comments that -
This report is provided against the background of the disclosure beginning in June 2013 and which is ongoing through international media of the existence of an extensive external intelligence-gathering programme operated by the United States National Security Agency (NSA). This programme is extraordinary in scope, monitoring vast amounts of electronic communication, including metadata of non-United States persons living outside the United States. The disclosures also highlight the way in which the NSA has worked along with some members of the Five Eyes arrangement (members of which are Australia, Canada, New Zealand, the United Kingdom and the United States) on this mass intelligence-gathering programme.
These disclosures have revealed the involvement in mass surveillance of some members of the Five Eyes arrangement. It is clear from these disclosures that the NSA has had access to the personal data of large numbers of individuals around the world, via telecommunications and electronic communications companies. On 27 June 2013, a bi-partisan group of 26 United States senators stated in a letter to the Director of National Intelligence that “the bulk collection and aggregation of Americans’ phone records has a significant impact on American’s privacy.” What is also clear is that the New Zealand public is now concerned that metadata related to people in New Zealand may be being passed onto the GCSB by Five Eyes partners. This is given the suggestion that the sharing of metadata collected by agencies in other member countries between some Five Eyes partners is taking place.
The Commission recognises that States have a duty – which is in part a human rights related duty – to protect their citizens from both physical harm and from interference with their civil and political rights. Most law enforcement involves active protection of human rights. Legislation has an important role to play; however, legislation can be unduly intrusive. Careful consideration is required to ensure that resulting legislative measures are consistent with international and domestic human rights obligations;