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No place for closed minds in GCSB debate John Edwards
14 September 2015

GCSB edit2

Our regular series of Technology & Privacy Forums have been run by this Office for over a decade. The Forums have featured a diversity of voices discussing issues involving technological changes and how they intersect with the protection of people’s personal information.

The protestors who disrupted last week’s forum where the Acting Director of the GCSB was speaking would like to see New Zealand’s security and intelligence services closed down. Fair enough. That is a reasonable position to take in an environment when a “first principles” review is taking place.

Every agency should have to justify its existence, and every Government should be able to make the case for all its policies and activities. It might be that the activities undertaken by the GCSB and SIS could be absorbed into other agencies, with different rules and accountabilities, or the Government could choose not to prioritise some of the activities of those agencies.

The protestors say the GCSB has no ‘democratic mandate’. The GCSB is a government department. It is established under a law that was debated in Parliament. It has as much democratic mandate as any department of state. 

It is a perfectly legitimate act to lobby for the abolition of a government department or organisation, as some have for the Ministry for Women, the Families Commission and others over time. But to say (as the group does) that my office ‘legitimises the activities of the Bureau’ elevates my Office’s powers beyond its remit and jurisdiction.

I can no more ‘legitimise’, or ‘delegitimise’ the GCSB than I can the Inland Revenue Department or the Ministry of Culture and Heritage. The GCSB is part of the public service landscape, and unless Parliament decides to do away with it I, and the rest of New Zealand, am stuck with it.

In my submission to the current review of intelligence and security, I argued that my office should have a greater role in the oversight of intelligence and security agencies, and for a number of other reforms. But until there is a change of the law, I have limited avenues for influence.

I am unable to hold the Bureau to account for the kinds of activities the protestors object to. That is the role of the Inspector General of Intelligence and Security. She is already undertaking inquiries into some of the matters raised by the protestors and others.

In the meantime, I have made it a priority to devote resources of my Office to a number of initiatives aimed at addressing public concerns about the activities of such agencies where those fall within my sphere. We posted about some of those last week.

One of the biggest obstacles to an informed and mature conversation about the role and activities of the intelligence agencies, and the nature of the ‘social contract’ under which they operate, is the absence of good information about those activities. Speculation is not a sound basis for a public discussion.

There is a demonstrable need for a central approach to cyber security which the Director was poised to give insights into before the disruption to the Forum.

A secure online infrastructure is essential for privacy and for our economy. This is one area where the GCSB carries out an essential role and I am pleased to be able to provide a platform for that conversation to occur.

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  • The commissioner's approach is sound.
    I have wondered aloud about the absence of criticism of the protestors by journalists who justifiably object when free speech is impeded by Governments.
    We should all object when advocates of a certain position try to stop us from hearing an advocate of a different position.

    Posted by Bruce Slane, 14/09/2015 6:05pm (2 years ago)

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    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

  • Dear Commissioner,

    Just to get some facts straight:

    1. The GCSB was established in 1977 under a veil of secrecy. It did not have a governing act for the first 26 years of its existence. When the GCSB law was passed in 2003, its role as a member of the Five Eyes network was not public information. It was completely denied until 2012. If you are unfamiliar with Nicky Hager's seminal book on the subject, Secret Power, I recommend it.

    2. The current review of the intelligence agencies is not an examination of the fundamental existence of the GCSB or NZSIS. If you read the terms of reference you can see quite clearly that the review absolutely does not contemplate anything of the sort.

    3. The GCSB and the Ministers Key and Finlayson have consistently refused to discuss any of the very serious allegations of human rights abuses by the agency. These include the provision of intelligence to be used in drone assassinations, and the provision of intelligence to overseas agencies with a record of human rights abuses. They have also refused to discuss the widespread collection of data about peoples in the Pacific, many of whom are New Zealand citizens, and therefore, entitled to the rights of any other New Zealander.

    4. Good information about the activities of the GCSB does exist - none of the claims of human rights abuses is "speculation": the Snowden documents, the Kim Dotcom legal case, and the Kitteridge report provide us with an extremely disturbing picture of the GCSB's activities.

    5. The privacy commissioner should not only be independent, but be seen to be independent. Your hosting of the GCSB is seen by some as an endorsement of the agency - legitimising the activities that it will not talk about, while giving it a platform to talk about the stuff it wants the public to believe.

    You might see the GCSB as any other agency of state, but in fact it is not. It is not subject to a parliamentary select committee, and the committee that does oversee it has very limited powers to examine its activities (and is not representative of the whole of Parliament). This is fundamentally unacceptable in a democratic state.

    Moreover, your own agency is not just another agency of state. Your role is as an advocate of people's rights - you have a role that should be a watchdog, and yes, that means an adversarial role. If you do not see your role as fundamentally about protecting the rights of ordinary people against the abuses of state power and holding those agencies to account for such abuses (to the extent that you are mandated to do so), then you should not be in the role as privacy commissioner.

    6. Ex-Commission Bruce Slane's comment illustrates a degree of ignorance that I am surprised at. The state is not "an advocate of a different position"; it does not enjoy "human rights" - human rights are held by individuals against the state. The state and its agents have all the resources in the world to communicate their messages. The people in your audience did have a right for information to be imparted (part of the right of free speech), but their rights must also be balanced against the rights of others to that same right. Since our protest was intended to be silent in order that the director could give her speech, we did not infringe upon anyone's right. It was your call to close the meeting.

    It would be great if you could take these criticisms on board and reevaluate your thoughts around the role of the Privacy Commissioner vis-a-vis the intelligence services, because ordinary people here desperately need a staunch and unwavering advocate for their fundamental right to privacy.

    Yours sincerely,

    Valerie Morse

    Posted by Valerie Morse, 25/09/2015 2:16pm (2 years ago)

    Post Reply

    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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