The Government was right to ignore the more hysterical opposition to its new spying legislation, but it may yet pay a price for the pace at which the bill was passed through the House.
There are times when a patiently plodding belts-and-braces approach is the best one in politics, and never more so than when a law concerns the rights of a private citizen against the mighty institution that is the state.
The problem for the Government was that the Kim Dotcom fiasco eliminated any potential for plodding. If Dotcom was nastily surprised by the raid on his rented mansion, so too were security agencies and the Government itself when it transpired that the law under which the raid took place was ambiguous.
The Government insists it has done no more than correct irregularities in the existing legislation, passed in 2003 under a Labour-led government to govern the GCSB, which at all times believed it was acting legally, as did the Inspector General of Intelligence and Security and successive Prime Ministers, including Helen Clark. However, the fact that the Government was only able to pass the tidy-up with a two-vote majority in Parliament shows it did not make that case convincingly to Opposition parties relishing a rare opportunity to pressure Key.
There is no doubt the Government mishandled the debate. It may have misread the campaign of activism against the bill as being a continuation of general anti-National activism, rather than a groundswell of concern from New Zealanders. If so, it underestimated community concerns in an era when, after the recent revelations by Edward Snowden, individual privacy has never felt more vulnerable. It underestimated, too, the inherent mistrust the community has in government agencies, and therefore the public’s willingness to believe that their rights were probably being eroded.
In fact, the measures in the new GCSB legislation are not as sweeping as critics allege. Although the new law does clarify the GCSB’s powers to spy on New Zealand individuals and organisations, there are substantially more robust checks and balances to prevent abuse or overuse. The provisions make the process for the GCSB to get a warrant more rigorous than those established under Labour, not less.
Primarily, the GCSB has three functions. One is protecting government organisations and others from cyber-attack. This is a growing threat, and a growing vulnerability. We are told that already this year, the number of incidents logged with the National Cyber Security Centre is more than for all of last year. Second, the GCSB collects foreign intelligence – the traditional spying role. Third is the GCSB’s role in assisting other state agencies when they need the specialist skills of the GCSB.
Although the old legislation said the GCSB could assist other agencies, exactly who or how many were not specified. The new legislation makes it clear the GCSB may assist only the SIS, Police and Defence Force, and only in circumstances where those agencies themselves have already obtained a warrant for surveillance. In its own right the GCSB cannot access private communications or obtain metadata – information generated as people used phones, computers and the like – without first obtaining warrants.
The public is mature enough to understand that the nature of spy agencies’ work means it is mostly conducted covertly in the shadows. But that makes it even more important that there are adequate checks and balances.
Although the gravity of the threats we face mean new powers may well be necessary weapons in the battles against terrorism, child pornography, people smuggling and economic sabotage, New Zealanders are entitled to the reassurance that there will never be political or other opportunistic abuse of the powers and information obtained under them.
The new Act allows for a review of the intelligence agencies in 2015, and every five to seven years thereafter. It also provides for open hearings for the financial reviews of the intelligence agencies. All this gives some public reassurance. But John Key’s complaint that opponents have so muddied the waters that the law has been widely misunderstood can also be seen as an admission that the Government has failed in its duty to instill public confidence. Key belatedly acknowledged that misinformation and conspiracy “alarmed and agitated” some citizens. That he regrets, and indeed he should. In a free and open democracy we all have the right to be confident that someone is watching the watchers.