Ironic that in the same week that Kim Dotcom will appear before a Parliamentary committee to defend the right of New Zealanders to live free from surveillance from the GCSB, Edward Snowden is seeking asylum in Russia. (Reportedly, Russian leader Vladimir Putin has said that Snowden is welcome to asylum, so long as he stops his revelations about the surveillance activities of the Obama administration.)
Thankfully, Dotcom still seems willing to fight for the principles at stake here, however that may impact on his own battle to avoid extradition. That’s pretty admirable, given that the extradition decision will ultimately involve the discretion of a Minister in the same government with whom Dotcom will be locking horns tomorrow.
The battle lines are pretty clear. For months, Prime Minister John Key has been trying to turn down the political thermostat on his plans to confer on the GCSB as an organization (and himself as its Minister) vastly expanded powers to spy on New Zealanders. According to the government’s spin, the 180 degree change to the GCSB’s role ( as set out in the new, proposed legislation currently before Parliament) is merely a bit of parliamentary housekeeping of an allegedly unclear legal situation.
That spin is blatantly untrue. Section 14 of the existing law and the bipartisan will of Parliament at the time it was passed are crystal clear on this matter – the GCSB was forbidden to carry out domestic spying, which was to remain the sole province of the SIS. Yes, the very same National Party that made such a fuss about the Nanny State while in Opposition is now expanding the ability of the surveillance powers of Big Government. And, in the process, the GCSB that unilaterally broke the law meant to govern its activities is being rewarded by having those transgressions legalized.
Hopefully, Dotcom’s appearance tomorrow before the Intelligence and Security Committee will see Dotcom challenge John Key’s attempt to restrict the freedoms enjoyed by all law-abiding New Zealanders. Given the rogue nature of the agency in question, Dotcom might usefully explore some of the GCSB’s existing activities as well as its proposed new powers. For instance, it would be useful to know :
1. In the past ten years has the GCSB carried out, or abetted the electronic surveillance of any of the business firms or diplomatic embassies of New Zealand’s trading partners in Asia and the South Pacific – such as Japan and China, Indonesia etc? If Key tries to hide behind the refusal to comment on “ operational matters” Dotcom can point to two reasons why the question needs to be answered. These include this week’s revelations that US intelligence services has been spying on the European Union mission in New York and its embassy in Washington :
One document lists 38 embassies and missions, describing them as “targets”. It details an extraordinary range of spying methods used against each target, from bugs implanted in electronic communications gear to taps into cables to the collection of transmissions with specialised antennae.
Along with traditional ideological adversaries and sensitive Middle Eastern countries, the list of targets includes the EU missions and the French, Italian and Greek embassies, as well as a number of other American allies, including Japan, Mexico, South Korea, India and Turkey.
And moreover, in section 7c of the rewritten GCSB legislation  one of the stated objectives of the GCSB is “ to contribute to the economic wellbeing of New Zealand”. OK…if so, doesn’t this section 7c place on the GCSB a virtual obligation to eavesdrop on our trading rivals to this country’s economic advantage? How is the GCSB meant to draw the ethical and practical boundaries in defending or promoting New Zealand’s economic wellbeing – as opposed to defending its physical security?
2. With that prospect in mind, Dotcom might care to ask… did the GSCB engage in (or abet) any electronic surveillance of the TPP trade talks in Auckland last December, on behalf of the NSA? Those trade talks involve the global framework for the IP, copyright and Internet freedoms that are central to the Dotcom case. After all, the purpose of the NSA bugging as revealed last weekend in Der Spiegel was similar to what the US might well have wanted to know about the various TPP negotiating stances:
….the aim of the bugging exercise against the EU embassy in central Washington is to gather inside knowledge of policy disagreements on global issues and other rifts between member states.
Already, these spying revelations are now allegedly endangering the proposed US/EU trade pact .
The prospects for a new trade pact between the US and the European Union worth hundreds of billions have suffered a severe setback following allegations that Washington bugged key EU offices and intercepted phonecalls and emails from top officials. The latest reports of NSA snooping on Europe – and on Germany in particular – went well beyond previous revelations of electronic spying said to be focused on identifying suspected terrorists, extremists and organised criminals.
So… it is time for Key to front up, and to confirm or deny whether the GCSB and its brother agencies in the US did spy on the trade delegations at the TPP. Given the NSA’s track record, it would be astonishing if it hadn’t tried to eavesdrop on the Auckland gathering. If so, the question really becomes, does Key think the GCSB should be helping – or hindering – such attempts? In the light of the Snowden revelations, should the Key government be treating the NSA as a friend or enemy of New Zealand’s interests, when it comes to our trade relations with Asia?
3. A further theme for Dotcom to explore ? As a relative newbie to New Zealand, he might care to know why the National Party of John Key so different from the National Party of Simon Power and Wayne Mapp – both of whom in Hansard in 2003  supported the need for section 14 of the current GCSB Act, and its express prevention of the GCSB from spying on New Zealanders. Were Power and Mapp wrong to do so – or is Key trying to say they were too stupid to grasp the full implications of Section 14?
4. With that sea change in approach in mind, Dotcom might also care to ask tomorrow… isn’t Key, with his new law, really up-ending the entire thrust of the current law regarding the GCSB ? The preamble to the new, proposed Bill cites the existing purposes of the GCSB in this fashion :
The Act currently provides for 3 core functions of GCSB:
• information assurance and cybersecurity:
• foreign intelligence:
• co-operation with and assistance to other entities.
Parliament in 2003 never intended that the third item – ‘the co-operation and assistance to other entities’ bit – should drive a bulldozer right over the top of the clear intent (in section 14) that such assistance should not result in the GCSB being engaged in spying on New Zealanders. Yet that is exactly what John Key has now chosen to legalise. The ‘assistance’ has become a Trojan Horse – and under its guise, Key is now giving the agency carte blanche to spy on New Zealanders. It is a mystery. Why has Key come to embrace the Surveillance State so dramatically – given that he fought the elections of 2005 and 2008 as the alleged opponent of the creeping powers of the state?
5. One could go on and on. The oversight mechanisms set out in the new legislation are as ludicrously cosmetic as ever. There will be no genuine independence for the new Inspector-General, either in his or her budget or investigative functions, or when it comes down to any enhanced ability to communicate with the public whose liberties the I-G is allegedly protecting. Instead of having one blindfolded watchdog stumbling around in the dark, there will be two such worthies in future. They will still
(a) have no genuine independence
(b) no expertise in the human rights laws and cyber-intelligence measures that are in flux around the world
(c) and no independent research, or investigative staff to keep them abreast of the developments in these areas. How does Key expect the I-G and his or her deputy to effectively monitor measures about which they are ignorant? As always, the I-G is an oversight body set up to fail.
What I’m getting at is that there are a few matters of substance at stake tomorrow, beyond the sheer personal drama of Dotcom’s confrontation with Key. And yes, it is weird that it should fall to a wealthy German to uphold the kind of freedoms that a previous generation of Kiwis fought to defend between 1939 and 1945. I hope the elderly supporters of Winston Peters get that irony.