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New ZealandEyes on New ZealandAssociation for Progressive Communications (APC)and Tech LibertyJoy Liddicoat and Tech Liberty 1www.apc.org, www.techliberty.org.nzIntroduction 1New Zealand is a small country, with a populationof less than five million, situated in the far reachesof the southern hemisphere. But its physicalremoteness belies a critical role in the powerfulinternational intelligence alliance known as the“Five Eyes”, 2 which has been at the heart of globalcontroversy about mass surveillance. This reportoutlines the remarkable story of how an internationalpolice raid for alleged copyright infringementactivities ultimately became a story of illegal spyingon New Zealanders, and political deals on revisedsurveillance laws, while precipitating proposals fora Digital Rights and Freedoms Bill and resulting inthe creation of a new political party. We outline howcivil society has tried to respond, and suggest actionpoints for the future, bearing in mind that thisincredible story is not yet over.Background: New Zealand’s rolein the Five EyesThe impact of the revelations of mass surveillanceand New Zealand’s role must be seen against thebackdrop of the country’s role in the Five Eyes alliance.Nicky Hager, New Zealand’s most prominentinvestigative journalist, says “for the most part[New Zealand’s role in the Five Eyes] was an accidentof history.” 3 Arising from intelligence-sharingagreements among five countries during and afterWorld War II, the main agency responsible for itsday-to-day operations in New Zealand is the1 TechLiberty is a New Zealand group advocating for civil libertiesonline: www.techliberty.org.nz2 The “Five Eyes” countries are New Zealand, Australia, Canada, theUnited Kingdom and the United States of America. The allianceoperates an integrated global surveillance arrangement thatcovers the majority of the worlds’ communications. For an overviewof legal arrangements see: APC et al. (2014). Joint Submission inConnection with General Assembly Resolution 67/167, “The rightto privacy in the digital age”. https://www.apc.org/en/pubs/submission-office-high-commissioner-human-rights-r3 Hager, N. (1996). Secret power: New Zealand’s Role in theInternational Spy Network. Port Nelson: Craig Potton Publishing, p.58.Government Communications Security Bureau(GCSB). 4A key aspect of this intelligence-sharing regimeis a legal framework that provides differing levels ofprotections for internal (national) versus external(extraterritorial) communications, or those relatingto national citizens versus non-nationals. This frameworkdiscriminates on grounds of national origin, andin doing so purports to step around human rights protectionsfrom interferences with the right to privacy ofcommunications by the governments of the Five Eyes,claiming that such protections apply only to nationalsor those within their territorial jurisdiction. 5Historically, the main purpose of the GCSB underthis legal framework has been to spy on ourneighbours in Asia and the South Pacific on behalfof the Five Eyes. This enabled the GCSB to claim thatit did not spy on New Zealand citizens or permanentresidents. Public assurances to this effect were givenon a number of occasions by both the GCSB andthe New Zealand government. 6Case study: Mega Upload – the moveto domestic surveillanceIn 2012 the New Zealand Police assisted the UnitedStates of America’s Federal Bureau of Intelligence(FBI) to carry out a raid on the house of Mr Kim Dotcom,founder of Mega Upload, an online file-sharingplatform. Mr Dotcom had migrated to New Zealandfrom Hong Kong and was living in New Zealand legallyas a permanent resident. The extraordinary raid ofthe house (replete with a helicopter bringing armedpolice officers into the house grounds to seize computersand other property), the seizure of the MegaUpload online service, and Mr Dotcom’s subsequentarrest and criminal prosecution, received huge mediaattention both in New Zealand and overseas. 7Mr Dotcom is an enigmatic figure, who has maintaineda vigorous defence of all charges and highand consistent media presence through public en-4 The first law authorising its operations was in 1977, followed bythe Government Communications Security Bureau Act 2003.5 APC et al. (2014). Op. cit., Appendix 1.6 See also Hager, N. (2013, April 10). Who is really responsible forthe GCSB shennanigans? Pundit. www.pundit.co.nz/content/whois-really-responsible-for-the-gcsb-shenanigans7 For an overview of the case, see: https://en.wikipedia.org/wiki/Megaupload_legal_casegagement against leading politicians, including theprime minister. There are many factors to the casewhich remain outstanding – extradition issues, validityof search warrants, and many other legal mattersoutside the scope of this report. However, in relationto surveillance issues, the case against Mr Dotcomrevealed that the GCSB had been spying on him andsharing information from its activities with New Zealandlaw enforcement officers who were also dealingwith the FBI in the investigation of Mega Upload.Public outrage followed the discovery that the GCSBwere in fact spying on New Zealanders and resultedin the prime minister establishing an independent investigationby Rebecca Kitteridge.The Kitteridge Report 8 revealed that the GCSBactivity was not an isolated case: in fact 88 unnamedNew Zealanders had been spied on overmany years. 9 The report concluded that the GCSBbased their operations on a faulty interpretation ofthe relevant New Zealand law (for example, they believedthe prohibition on spying did not apply wherethere was a warrant and did not apply to “metadata”because metadata was not a “communication”),and that the law was unclear and therefore theGCSB were not at fault. 10 Various recommendationswere made for changing GCSB operations and law.Prime Minister John Key immediately respondedthat the report made “sobering reading” and further:“I am embarrassed to say that I heard the unequivocalassurances and read the clear prohibition in theGCSB legislation, and I believed that they did not spyon New Zealanders. But it turns out they have beenregularly spying on New Zealanders from before 2003and since. They have seriously let down the public.” 11Signalling a need for law reform, the prime ministeralso said: “In addition, the Act governing the GCSB isnot fit for purpose and probably never has been.” 12The Kitteridge Report had been leaked, much tothe fury of government ministers, and a parliamentaryinquiry was launched. The prime suspect was PeterDunne, a parliamentarian holding a single vote supportingthe coalition government. Data about bothDunne’s movements and those of journalists in the parliamentaryprecinct (from security card swipe recordsat various doors in different buildings) were handed tothe investigation. Dunne and journalist Andrea Vance’s8 Kitteridge, R. (2013). Review of Compliance at the GCSB. www.gcsb.govt.nz/news/publications9 Ibid.10 Bennett, A. (2013, April 9). CSB report: 88 cases of possible illegalspying uncovered. New Zealand Herald. www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=1087642411 Key, J. (2013, April 9). PM releases report into GCSB compliance.Beehive.govt.nz. www.beehive.govt.nz/release/pm-releasesreport-gcsb-compliance12 Ibid.private phone records and emails from a three-monthperiod were also provided to the investigation, withouttheir knowledge or consent. These actions were widelyseen as an attack on privacy and press freedom, sparkingintense commentary from local journalists andmedia outlets. Dunne denied he was the source of theleak and asserted his rights to privacy, 13 but was forcedto resign his ministerial portfolio. 14Throughout this time, the Snowden revelationsalso kept coming, contributing to ongoing mediafocus and providing a wider global backdrop to theGCSB scandal and the proposed law reforms.It was in this context that two new laws were introduced.The first, the GCSB Bill, was designed torestructure the GCSB and establish its legal basismore clearly. But the new laws went much further,retrospectively validating the GCSB action andfundamentally shifting the permitted surveillanceactivities to include surveillance of New Zealandcitizens. Rather than clarifying that the GCSB couldnot spy on New Zealanders, the new law simplyextended the authority to do so and validated thepreviously unlawful activity, clearly violating privacyrights. There was widespread consternation andopposition from legal groups, the technical community,business, human rights organisations andcommunity organisations. The New Zealand humanrights commission also took the unusual step ofpreparing a separate report for the prime ministerhighlighting serious concerns with the proposals.The second law, the Telecommunications InterceptionCapability and Security Act (TICS), gavesweeping new powers to the GCSB, making newnetwork security measures by all network operatorsincluding telecommunications companies, such assubmission of security measures to the newly constitutedGCSB. Thomas Beagle from Tech Liberty noted:The [TICS] bill codifies the government’s assertionthat all digital communications (which isincreasingly becoming equivalent to “all communications”)must be accessible by governmentagencies. The limits imposed are minimal andlaws such as the GCSB Act override any limits includedin TICS. Furthermore, to ensure that thegovernment can do this, the GCSB will now haveoversight of the design and operation of NewZealand’s communications networks. They willbe able to veto any decision made by the network13 Shuttleworth, K. (2013, July 30). Reports phone records released.New Zealand Herald. www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=1090549514 Burr, L. (2013, June 7). Peter Dunne resigns as minister. 3 News.www.3news.co.nz/Peter-Dunne-resigns-as-minister/tabid/1607/articleID/300658/Default.aspx178 / Global Information Society Watch New Zealand / 179