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August 12, 2013 | by  | in Features Homepage |
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For Their Eyes Only

A Sense of Paranoia

It has been a weird winter for the paranoid.

As if chemtrails and fluoride were not enough to instil a nagging sense of an omniscient ‘Them’, the events of the last two months have done more to stimulate the basolateral amygdala than all but the most potent THC. Right now, the paranoid can hardly be blamed for feeling that they’re being watched.

On the evening of Wednesday 5 June, The Guardian revealed that the National Security Agency (the NSA) was collecting the phone records of millions of US customers of telecommunications provider, Verizon. A top secret court order authorising the data collection compelled Verizon to give the NSA information on all phone calls within the US on an “ongoing, daily basis”.

Only two days later, details of another top-secret surveillance program—this one named (rather ominously) PRISM—emerged. Another baby of the NSA, PRISM, we have learnt, is a system which allows the Governments of the US and UK to collect private communication directly from the servers of nine popular internet services: Microsoft, Apple, Skype, PalTalk, AOL, Twitter, Yahoo, Facebook and Google.

While these programs were targeted at spies and terrorists, collecting information from the bad guys requires, as The Washington Post explained, “at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two ‘hops’ out from their target, which increases ‘incidental collection’ exponentially.”

Six degrees of separation. You do the math.

The man responsible for the leaks was Edward Snowden, an infrastructure analyst working (well, not anymore) for a NSA contractor in Hawaii. Although in Hong Kong by the time the story broke, the US Government—still litigating the shit out of the Wikileaks leaker, Bradley Manning—was quick to charge Snowden with espionage in absentia. The man-hunt that followed triggered global diplomatic tensions, culminating in Russia granting Snowden temporary asylum—despite Obama’s best ‘I’m both very angry and disappointed’ face.

While the Catch Me If You Can–style narrative consumed the media, the folks at home struggled to understand just what it all meant for them. It all seemed to be about the ‘metadata’; that is, not the content of communication, but the details of who, where and for how long people are communicating.

As Susan Landau, a computer engineer and mathematician, explained to The New Yorker, metadata is, in many ways, “much more intrusive than content.” If you can track who someone is calling and for how long, “you know exactly what is happening—you don’t need the content.”

Having spent a decade in awe at the rise and rise of Facebook, Twitter and Google, learning to entrust them with every byte of data we have, we became suddenly aware of just how vulnerable we had been left. The conspiracy theorists and chronically paranoid were adrenally exhausted. While those tweeting #illuminati were certainly seeing Jesus in the Toast, you could hardly blame them.

It was hard even for the John Smiths scrolling down their news feeds not to feel just a little bit like Winston Smith.

Home-Grown Error-ism

On Saturday 27 July, as Russian authorities were considering whether to grant asylum to the fugitive Snowden, then holed-up in Moscow airport, thousands of protestors took to the streets in city centres across New Zealand to protest two proposed laws that would expand the surveillance powers of the Government Communications Security Bureau, or the GCSB—the agency established to provide foreign intelligence and protect the country from cyber threats.

The two pieces of law—the GCSB Bill and the Telecommunications (Interception Capability and Security) Bill—taken together clarify when the GCSB can spy on New Zealanders: namely, when conducted under authorised warrants to assist the Security Intelligence Service (SIS) or Police. Such authority could be granted by the Minister in charge—currently, that’s the Prime Minister—without independent oversight.

The motivations of those who took to the streets were diverse.

InternetNZ and the NZ Law Society worried that the proposed laws lacked the necessary checks and balances to protect citizens’ human rights from abuse. Some worried that the legislation opened the door for private information to be sent abroad, with some going so far as to suggest that the GCSB was becoming little more than a subsidiary of the NSA. Some even imputed malice, fearing that real purpose of the law is to “strangle us and tighten us up”, as one protester in Hamilton told The Waikato Independent. While others, although not seeing malice, felt it would inevitably lead to malicious ends. In the words of one Northcote resident, “It happens little by little like the rights of the German people were eroded in Nazi Germany.”

These protests marked just one point in a broader story with the GCSB at its centre, one that extends back to the start of 2012. To understand the protests and the nature of the proposed law change, we need to understand this history.

***

On 20 January 2012, the eccentric German-born papa of file-sharing site Megaupload, Kim Dotcom (a.k.a. Kim Schmitz, a.k.a. Kim Tim Jim Vestor, a.k.a. Kimble), was arrested in an armed raid on his Coatesville mansion conducted by the Police in concert with the GCSB and FBI. The GCSB had been surveilling Dotcom and his associates for weeks. As memos between the GCSB and Police made clear, the operation was considered a success. Sought by the FBI on counts of copyright infringement and money laundering, and now detained, Dotcom could be extradited to the US to face trial—or so the plan went.

By September, however, Dotcom was still in New Zealand. The raid, it had emerged, was unlawful.

As an externally focussed agency, the GCSB’s powers of surveillance cannot be deployed on residents or non-citizens. As Dotcom had only recently immigrated, the GCSB presumed he was a non-resident. Unfortunately for them, the Police and the US Department of State, this presumption was wrong: Dotcom’s residency application was approved in 2010.

Key ordered an inquiry to explain the blunder. The report of that inquiry (the leaking of which to Fairfax journalist Andrea Vance sparked a thrilling sub-plot involving further inquiries, ministerial resignations and severe breaches of journalistic freedoms) diagnosed the GCSB with a range of grave maladies. In addition to Dotcom, it emerged, the agency may have unlawfully spied on up to 85 New Zealanders over the past decade. The legal advice it had been operating under was wrong, its management and staff culture was fragmented, and the legislation that governed it was simply not fit for the purpose. The necessary course of treatment, the report proscribed, was new legislation.

The GCSB and TICS Bills are to right this history of wrongs—an aim that was often forgotten as the political opposition at times seemed to paste together a montage of the year’s assorted scandals as evidence in and of itself of the bill’s flaws. The protesters, Key told TVNZ, were “misguided”, and Dotcom, hollering about an NSA connection, was just “a conspiracy theorist”. The Bills’ motivations, Key wanted us to know, are honourable.

The activities of the GCSB, as well as the NSA, are aimed at stopping criminals and terrorists—‘the bad guys’. And we need them to stop the bad guys. For those of us who have done nothing wrong, the thinking goes, we have nothing to hide. Or so the thinking goes.

“I’m sorry, but that’s the real world”, Key told More FM on the day of the GCSB Bill’s first reading. The revelation he announced on the (usually) easy-listening radio station was that there are individuals in New Zealand that have received al-Qaeda training in Yemen.

Although the timing of the al-Qaeda pronouncement gave the statements an air of dubiousness—a dubiousness which both the opposition and academics were quick to observe—the underlying point that Key was emphasising was one familiar to all of us in the post-9/11 West. We must make sacrifices: privacy must be balanced against security.

But good intentions don’t mean good law.

Indeed, Key’s message echoed sentiments expressed elsewhere by a character with whom Key would, until recent times, have been only too pleased to have been compared.

Then a senator, Barack Obama told the Senate in 2006, “We need to find a way forward to make sure that we can stop terrorists while protecting the privacy, and liberty, of innocent Americans.”

With light now having been shone through PRISM, such American parallels have lost their gleam. Balance means little until it is clear what is on either side of the scales.

A Tale of Two Privacies

There is good privacy and there is bad privacy.

Good privacy is privacy for the individual. It’s the kind of privacy we’re thinking of when we lock our diaries, close the door, whisper secrets, and turn on private browsing. It’s the thing that gives us the space to exercise those rights that make us free. It’s the overriding thing that drove the vast majority of those who took to the streets in opposition to the GCSB Bill.

Bad privacy, however, is privacy for government. This privacy—perhaps better termed ‘secrecy’—prevents the public from seeing how and why the government does what it does. It prevents the government from being held to account for their actions. It’s the kind of privacy that was entrenched when Parliamentary Services gave journalist Andrea Vance’s phone and email information to the Henry Inquiry (see timeline). It’s the kind of privacy that Edward Snowden and Wikileaks seek to destroy.

As the existence of the GCSB is testament to, such secrecy is to some extent necessary. But where such secrecy exists, its existence must be justified and there must be robust rules in place to set the limits of its use. This is what the NZ Law Society is appealing to in calling for more stringent safeguards on the exercise of the powers conferred under the GCSB Bill.

Where these safeguards are lacking, bad privacy may spread at the expense of the good kind.

***

In a 2007 essay for The Atlantic, David Foster Wallace asks: “What if we chose to accept the fact that every few years, despite all reasonable precautions, some hundreds or thousands of us may die in the sort of ghastly terrorist attack that a democratic republic cannot 100-per-cent protect itself from without subverting the very principles that make it worth protecting?”

Maybe if we thought about it, freedom and the private space necessary to exercise that freedom are worth more than absolute safety. After all, there will always be threats to National Security—even if freedom and democracy were to end.

Don’t mistake the message: the GCSB and TICS Bills will not destroy privacy and they will not destroy freedom. The nightmare of the paranoid is not imminent. But it does tilt the scales one way. There is no objectively right answer as to where the balance should be, but as chief-leak himself, Edward Snowden, said in the YouTube video that served as his uncloaking, “these things need to be determined by the public, not by someone who is simply hired by the Government.”

Speaking to the New Zealand Herald on the day of the protests, Key said, “I accept there will always be some who feel a bit nervous about privacy and their own rights but I can give them the best assurance I can that we’re very careful and cautious about what we do as a state, but in the end we do have to protect the interests of New Zealanders.”

The question then for us, as those whose privacy matters, is, in this shadeless landscape of data, what are our interests?

A Web of Incompetence: A Timeline of the Tangled GCSB Saga

2011

Early 2011: NZ Police are contacted by the FBI in relation to an investigation into Kim Dotcom, the German-born founder of file-sharing site Megaupload.

May 2011: John Key requests that Ian Fletcher—an old acquaintance—apply for the position of Director of the GCSB. Fletcher is appointed in September, set to begin work in January.

16 December 2011: The GCSB begins spying on Dotcom and his pal Bram van der Kolk as part of what they call Operation Debut. Unbeknownst to the GCSB, the surveillance is illegal because both Dotcom and van der Kolk are NZ residents.

2012

5 January 2012: Indictments are filed in the US against Dotcom for money laundering, racketeering and criminal copyright infringement.

20 January 2012: Dotcom is arrested in an armed raid on his Coatesville mansion. Dotcom is imprisoned, his assets seized, and megaupload.com disabled by the US Department of Justice. According to statements later made by Key, the night prior was the earliest he was told of the operation. GCSB’s involvement was not mentioned.

16 February 2012: Police inform the GCSB that the surveillance of Dotcom may have been illegal.

22 February 2012: Dotcom is granted bail by the North Shore District Court, following two earlier judgments to the contrary. He is required to stay close to home, away from choppers, and offline. He pursues an electronic-music career.

29 February 2012: Key is shown a presentation at GCSB offices that refers to the GCSB’s involvement in Dotcom’s arrest. Key later claims to remember nothing of this.

27 April 2012: The John Banks sideshow erupts. Dotcom claims that Banks, the Minister for Small Business, had requested that Dotcom split a $50,000 donation to his 2010 Auckland mayoral campaign into two parts so as to allow the donation to be anonymous—a potential breach of electoral law. Banks pulls the ignorance card.

28 June 2012: The High Court rules that the raid on Dotcom Mansion and the seizure of clones of Dotcom’s digital material by the FBI was illegal on the basis that the Police’s search warrants were shoddy.

17 August 2012: Deputy Prime Minister Bill English signs a ministerial certificate suppressing the GCSB’s involvement in the Dotcom affair.

17 September 2012: Fletcher tells Key that the GCSB illegally spied on Dotcom—the first time he recalls hearing of the GCSB’s involvement. Key orders an inquiry.

27 September 2012: A Report by Justice Neazor confirms that the GCSB acted illegally. Key apologises to Dotcom, and to the people of New Zealand, for the organisation’s “basic errors”.

September, sometime: GCSB chief legal advisor Hugh Wolfensohn—or ‘Agent CX’ to insiders—steps down after 25 years in the role.

6 December 2012: The High Court orders the GCSB to reveal secret details about which “entities” it shared information with. This includes members of Echelon or Five Eyes, an intelligence alliance between NZ, the US, Australia, Canada and the UK.

2013

7 March 2013: The Court of Appeal rules that Dotcom can sue the Police and GCSB.

9 April 2013: The Kitteridge Report reveals that up to 85 people may have been illegally spied upon by the GCSB over the past decade. The report paints a dire picture of the GCSB as a fragmented and poorly advised organisation. Kitteridge calls for a law-change. The release of the report was brought forward after details of it were leaked to Fairfax journalist Andrea Vance.

15 April 2013: The Henry Inquiry into the unauthorised release of the Kitteridge Report to Vance is established.

8 May 2013: The GCSB Bill is introduced to Parliament by Key, and passes its first reading. The Bill seeks to clarify and expand the legal framework governing the GCSB.

31 May 2013: The High Court orders the Police to return to Dotcom all items seized in Operation Debut that are not relevant to a future trial.

7 June 2013: The Henry Inquiry report is released. United Future leader Peter Dunne resigns as a Minister as it emerges he withheld information from the inquiry. Dunne continues to categorically deny leaking the Kitteridge Report to Vance.

10 June 2013: Dotcom’s extradition hearing is postponed for a fourth time. April 2014 is pencilled-in.

27 July 2013: Thousands take to the streets across the country in protest over the proposed GCSB Bill.

29 July 2013: The Herald reports that the Government has spent nearly $2 million of hard-working-taxpayer dough on legal fees in its various court battles with Dotcom.

30 July 2013: Speaker of the House David Carter confirms that three months’ worth of phone records between Vance and people in Parliament had been “inadvertently” supplied to the Henry Inquiry—a “completely unacceptable” breach of parliamentary privilege.

1 August 2013: Key tells More FM that the GCSB Bill is justified on the basis that there are New Zealanders being trained by al-Qaeda in Yemen.

1 August 2013: The GCSB Bill passes its second reading in Parliament by a margin of two votes. National, ACT and Peter Dunne are in favour. Key—the minister in charge of the bill—is not present during the debate.

1 August 2013: Head of Parliamentary Services, Geoff Thorn, resigns following the Vance phone-records scandal.

2 August 2013: The Government reveals that Parliamentary Services gave private emails between Dunne and Vance to the Henry Inquiry without their permission—further evidence of severe privacy breaches by the executive.

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About the Author ()

Ollie served dutifully alongside Asher Emanuel as Co-editor of Salient throughout the tumult of 2012. He has contributed to Salient since 2011 and intends to do so for the rest of his waking life.

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