The GCSB Amendment Bill: Is the Government spying on us?

Introduction

The divisive Government Communications Security Bureau Amendment Bill (the Bill) was passed into law after its third reading on 21 August 2013 by a vote of 61 to 59. It amends the Government Communications Security Bureau Act 2003 (the Act), the Inspector-General of Intelligence and Security Act 1996 (IGISA), and the Intelligence and Security Committee Act 1996 (ISCA).

It is currently proposed that the Bill will be divided into three separate amending Bills, each corresponding to their respective Act.

The history of the Government Communications Security Bureau

The New Zealand Government has recognised the need for signals intelligence, technical security, and communications security since the Second World War. However, these services were historically provided for by various agencies such as the New Zealand Defence Force and the New Zealand Security Intelligence Service (NZSIS). It was not until Prime Minister Robert Muldoon approved the formation of the Government Communications Security Bureau (GCSB) in 1977 that these activities were centralised in the GCSB.

In early 2000 it was decided that the GCSB should have a statutory basis similar to the NZSIS and so began an extensive legislative process and public consultation that culminated in the the Act coming into effect on 1 April 2003.

The Government Communications Security Bureau Act 2003

The Act sets out the GCSB’s objective as contributing to the national security of New Zealand by providing the New Zealand Government with foreign intelligence. The external oversight of its activities is set out in the IGISA and ISCA.

The Act essentially provides that the three core functions of the GCSB are information assurance and cyber security; foreign intelligence; and cooperation with and assistance to other entities. It sets out that the GCSB:

• Can gather intelligence through spying on foreigners;
• Cannot spy on New Zealanders to gather intelligence;
• Protects New Zealand Government communications from cyber attack; and
• Assists domestic agencies like the NZSIS, the New Zealand Defence Force and the New Zealand Police (although it does not specify the manner in which it does this)

The Government Communications Security Bureau Amendment Bill

On 15 April 2013, John Key, as Prime Minister and hence Minister responsible for the GCSB, announced the introduction of the Bill, which was seen as an attempt to strengthen the oversight regime of New Zealand’s intelligence community. However, the Bill has been met with significant controversy, with opposition arguing it will have potentially invasive impacts on the New Zealand public.

The three main purposes of the Bill are:

• To provide a clear governing framework for GCSB activities;
• To update this framework to accommodate changes in the security and public environment since the Act; and
• To enhance external oversight mechanisms by strengthening and improving the offices of the Inspector-General of Intelligence and Security (IGIS) and the Parliament’s Intelligence and Security Committee (ISC) functional capabilities.

So, bearing these in mind, what exactly are the amendments the Bill makes to the three acts it purports to amend?

With respect to the Act:

• The GCSB will continue to collect foreign intelligence, and will still be prevented from spying on New Zealanders under this function (as is the case in the Act). However, this protection will only extend to private communications and not to metadata (data logs) or conversations that could reasonably be expected to be interrupted;
• The GCSB will be allowed to assist the NZSIS, the New Zealand Police and the Department of Defence in spying on New Zealanders but only to the extent these agencies are authorised under warrant or statute to do so;
• The GCSB’s cyber security function will be extended from protection of Government communications only to private-sector cyber systems as well, if they are deemed important enough to New Zealand;
• A written reporting requirement on the GCSB to maintain records of warrants and authorisations;
• Certain principles of the Privacy Act 1993 may be modified to allow the GCSB to achieve its functions more effectively and efficiently; and
• An increase in the maximum penalty for unauthorised disclosure of information.

While the main amendments are directed toward the Act, the Bill also affects the IGISA and ISCA.

The IGIS is supposedly a source of independent external oversight that is responsible for examining issues of legality and propriety. Under the Bill the key amendments to the IGISA are:

• The working nature of the IGIS is extended to include regular examination of issues affecting operational activities;
• The IGIS is able to conduct its own independent inquiries;
• IGIS reports will be unclassified (up to a certain point); and
• The pool of potential IGIS candidates extends beyond retired High Court Judges.

The ISC is the parliamentary mechanism of oversight for intelligence agencies and examines efficacy, efficiency, budgetary and policy issues.

Under the Bill the key amendments are:

• The Prime Minister must relinquish the Chair of the ISC if reviewing an intelligence agency they are ministerially responsible for; but can nominate the Deputy Prime Minister or the Attorney-General to act as an alternate chair; and
• Subject to sensitive information restrictions, the ISC will also be required to table its reports in the House and make them publicly available.

The future

In light of the recent intelligence scandal surrounding Kim Dotcom and the media furore created by Edward Snowden’s acknowledgment of the National Security Agency’s use of ‘PRISM’ in the United States, the public has been put on red alert and are generally calling for greater transparency and accountability for intelligence and security services.

The Snowden issue is particularly relevant to New Zealand due to its membership with the ‘Five Eyes’ spying alliance initiative between the United States, Australia, Canada and Britain.

Make of it what you will, whether the Bill achieves its desired status within New Zealand is still unclear. However, what is evident will be the continuing debate and controversy this Bill will stimulate over the coming months, and even years, as the New Zealand public wait with bated breath to see the true effect this Bill will have on their personal privacy.

If you would like further information please contact Laura Monahan on 07 958 7479.