[Intro no video] – speakers who follow to shine with their brilliance and passion, but I get to do the tough boring stuff.
Now I’m doing this because as you all know the GCSB Bill, I’ll call it the ‘Bill’ for short, has been put forward as not really increasing the overall powers of the GCSB compared with the present law and as you heard a moment ago, on television last week John Key tried to assure the public that it was, quoting, “totally incorrect that the Government effectively through GCSB will be able to wholesale spy on New Zealanders.”
Now those claims are wrong and misleading – and I want to take you through the wholesale spying powers in the short time I have available.
In a nutshell Mr Key is wrong in law in claiming that New Zealanders have nothing to fear. He is wrong in his limited analysis and he overlooks the fact that the statutory intelligence gathering powers of the GCSB are being expanded at the same time as the functions are.
Now there are three features, and I’m sorry if this is a bit dense, but I’ll do my best. There are three features that come together to bear out my claim there is a major increase in spying powers here. One is the definition of infrastructure, the next is the increase in functions of the GCSB, and the third is the increased powers of collection of information, information gathering and interception.
Now the present Act limits the GCSB to gathering and analysis of foreign intelligence – that’s defined the way you would expect to be defined – to be about the capabilities and activities of foreign organisations and foreign people. So the present Act contains a prohibition on spying to obtain intelligence from New Zealanders – now the Bill abolishes the restraint on GCSB activities to foreign intelligence – and it confers three considerably expanded functions.
As to Mr Key’s denial, that that’s an expansion of power, I say this, if you start off with one limited function in the present Act, you abolish the limits and then replace it with three new functions, isn’t that an increase? I thought John Key was suppose to be good at numbers [audience laughs].
So just quickly, dealing with those three major features – first the crucial new definition of ‘infrastructure’ – this is a technical definition but it is wide enough to cover all kinds of electronic data systems starting with your phone, your computer, your internet service provider, and any telecommunications network – so not only is an ‘information infrastructure’ any one of those – it is also defined to include the ‘content’ on each of those, now that’s key.
So it’s not just going into the mechanics of it, the content is included in this definition of infrastructure, which plugs into the powers.
So then you’ve got the three new functions – am only going to deal with the first two of these – first there is 8a would give the GCSB a much wider cyber security protection function, but they have intelligence gathering powers under things protection. And on television John Key compared this function to having a superior version of Norton Anti-Virus [audience laughs].
Yeah right! How do I get to uninstall the GCSB from my computer [audience laughs] [claps].
On television last week, Mr Key also claimed that under this 8a cyber security functions, content could not be accessed. When the ‘Herald’ pointed out his error, he panicked and he issued a later written statement saying “we’ll anyway; I’m not going to approve cyber security warrants under this first function” [which would seek New Zealanders consent] he said “in the first instance”.
Now just stop and ponder for a moment the implications of how unprincipled that is.
He’s being, he’s pushing this legislation through; it’s been pointed out to him that this 8a cyber security function does not give New Zealanders any protection and what does he say?
“Oh that’s alright, when I look at these warrant applications I won’t grant them.”
[I’ll leave ‘content’ out] – Despite the fact the law will say the GCSB is entitled to such a warrant? He’s just going to amend the law – behind closed doors or we’ve got to believe that he will?
Under 8b there is a new intelligence gathering and analysis function which is to be conferred. This is worded very broadly because it plugs into the definition of ‘infrastructure’. What I want you to understand about these functions is that they’re not restricted to targeted intelligence gathering, that is to say – wholesale spying on New Zealanders or anyone else.
There are two new powers; one is called an ‘interception warrant’ which existed but is now widened and there is a new ‘access authorisation’. Now this can be granted to the GCSB authorising the accessing of one or more specified information infrastructures or classes of infrastructure.
So they can just specify for example, they will intercept all communications, content included, coming from a particular overseas country or on a particular server.
What’s more, when and if, the Bill becomes law the GCSB does not have to make out any particular threat to national security to get a warrant. By contrast with the SIS which has to make out a security threat – the GCSB will not have to do that.
Now I just want to close then by saying this – the Prime Minister’s belated attempt to reassure New Zealanders they we’re not sleepwalking into a total surveillance society is flawed and it ultimately fails to convince.
John Key might care what kind of economy he wants to leave behind when he departs office but the sad fact is he does not care about the kind of society the rest of us will be landed with [audience claps].
And lastly Mister Time Keeper, the Bill currently stands to voted into law by a majority of one – now that could be any Government MP at all – but it turns out to be, likely to be, the vote of Mister Peter ‘Willing Buyer/Willing Sellout’ Dunne [audience heckles][claps].
Now this is a travesty – the entire process stinks to high heaven. Is it really too much to hope for that there is one independently minded MP of the present Parliamentary majority who has the clarity to say no.
Download pdf transcript: GCSB 2013 08 19 Auckland Town Hall – Dr Rodney Harrison QC