Gordon Campbell on Peter Dunne’s illusory gains on the GCSB Bill

In a week that will see nationwide protests against the GCSB, the politics of the passage of the agency’s governing legislation remain as polarized as ever. Now that Peter Dunne has re-assumed his usual posture as the government’s reliable footstool, this has given Prime Minister John Key the one vote majority he needs to get the spy agency’s new legislation through Parliament. The changes that Dunne has won as a pre-condition of his support could hardly be more token – apparently there will be warranted provision for such surveillance activities (always a rigorous process, right?) after-the-fact annual statistics on its spying actions, and an “independent” review of the legislation in 2015, and every five years or so thereafter. A review appointed by government, naturellement. Oh, and such things as medical records will apparently be exempt from the GCSB’s surveillance – unless of course, the needs of national security require otherwise.

Talk about a missed opportunity. Dunne could have demanded a coherent rationale for why the GCSB needs to be empowered to spy on all New Zealanders. Yet from asset sales to spying, Dunne has never been in the business of holding the government to account. In this case, almost all the gains by Dunne are retrospective in nature, even though they relate to forms of mass surveillance that infringe on the rights to privacy and the presumption of innocence that should exempt ordinary citizens and their phone, email and Internet activities from the attentions of the security services. In the light of such extensions of state power, Dunne’s gains look entirely cosmetic.

Regardless, Dunne seems content with ensuring an inquiry occurs afterwards about how the GCSB has been using its new powers to spy on all of us. Keep in mind that such an inquiry would not, of course, be able to inquire into any operational secrets about how and when and on whom and for whom the GCSB has been doing its actual spying. As an oversight mechanism, this inquiry will necessarily be of the “eyes wide shut” variety.

Now that the GCSB’s new spying powers have been guaranteed safe passage through Parliament, the sole remaining question is whether Winston Peters will also belatedly climb on board, waving his own meaningless pieces of paper conditions. While Peters has made more noise about the violation of ‘fundamental rights” that the GCSB Bill entails, he has also – like Dunne – fiddled around the edges with “oversight” measures virtually guaranteed to be ineffectual. Peters’ main pre-conditions have hinged on substituting a three person advisory panel for the current, solitary role of the Inspector-General. Key has already signalled his acceptance of that idea in principle, and has likened it to the functioning of the Reserve Bank Board.

Again, such an ‘oversight” panel is designed to be captured. It would be appointed by the government, would have no independent funding, research staff, or investigative powers, or access to the operations it would be supposed to be monitoring. Peters’ actions are never safe to predict, but he may well eventually join the government and add to its majority on the GCSB Bill. Reason being, his preconditions – or at the least the ones he has stated so far – are fairly easy for the government to meet. On national security issues, it is hard to see Peters standing resolutely in opposition alongside Labour and the Greens.

Politicking aside, the substantive concerns raised by Internet NZ and the Human Rights Commission – that the Bill creates a system of potential mass surveillance, remain. We know from the US evidence what those systems can create – a “three hops” system whereby being a friend of a friend of a friend of an alleged terrorist can expose you to spy agency scrutiny of your private communications.

According to an NSA slide published by the Washington Post, the agency had more than 117,000 “active surveillance targets” in a database associated with the PRISM collection system revealed by former NSA contractor Edward Snowden. The slide doesn’t specify whether this means that more than 117,000 people were actively being surveilled. But generally, a target refers to a single individual.

Now assume that each one of those 117,000 targets communicates with five others. That’s 585,000 people in the first hop. Assume that those folks all have five contacts, and you get 2,925,000 in the second hop. But it’s the third hop where the numbers start getting ridiculous: again, assuming each target only communicates with five others, and you’re at 14,625,000. Assuming that there’s no overlap in contacts, this will bring the total number of people in the net to more than 18 million. True, many of us share contacts, which would lower the number. But then, do you know anyone who has only five contacts? In reality, the number would be much higher than 18 million.

And this, the NSA says, is how it determines if someone is “reasonably believed” to be involved in terrorism.

For a government elected partly on campaigning against Nanny State intrusions, the GCSB Bill is indefensible, in its current form.