Objection Letter on the GCSB Bill and Other Related Matters to the Governor-General of New Zealand

The Governor-General of New Zealand has reserve powers that can be exercised to decline accent to legislation, dismiss a prime minister and force a dissolution of Parliament and call new elections. This letter requests the Governor-General to investigate the conduct of the prime minister, intervene in the passage of the GCSB bill and conduct a wider investigation into New Zealand’s intelligence, enforcement and defence apparatus, for the reasons outlined. – Snoopman

20 August 2013

His Excellency Lieutenant General The Right Honourable Sir Jerry Mateparae GNZM, QSO

Governor-General of New Zealand

Government House

Private Bag 39995

Wellington Mail Centre

Lower Hutt 5045

Your Excellency,

I ask that you urgently intervene in the passage of the Government Communications Security Bureau and Related Legislation Amendment Bill (Referred to hereafter as the ‘GCSB bill’ or the ‘bill’). My reasons are explained in this letter, which is to be taken as an extraordinary objection to the proposed bill and the conduct of the prime minister.

Last night I attended a citizens’ initiated public meeting held at the Auckland Town Hall that was convened to hear the implications of increased surveillance powers that the proposed Government Bill 109-2 would confer on the state’s intelligence, enforcement and defence apparatus. The Town Hall was full and it was clear from the audience’s reactions to the varied speeches that the people there are deeply opposed to the GCSB Bill. (See Town Hall video link at http://thedailyblog.co.nz/)[i] (Others, too, have raised concerns about the law, the capabilities of the technologies that we know about, and John Key’s irresponsible assurances that there is nothing to worry about because he will limit the conditions on the warrants).[ii]

Also last night, Campbell Live reported that its viewer’s poll (collected over a week) showed that 89% of people who responded to the survey were opposed to the GCSB bill. It’s important to note that recent media coverage of the GCSB bill has helped the public understand its implications better. As John Campbell pointed out on 14 August 2013, Campbell Live had asked Key over a period of three months to appear on the programme, but he declined.[iii] So, when Key smugly pointed out that the GCSB bill only had 124 submissions compared to 38,000 for the snapper quota, its important to hold the prime minister up to closer scrutiny on the passage of this bill. What is clear is that it is being rushed through the Parliamentary process, and is bad law for the public.

When this bill was in its early stages, it did not gain the media attention it deserved. Now that it is fast approaching its third reading, and some in the media have been taking it seriously and trying to foster open, mature and reasoned arguments, the New Zealand public is beginning to understand that it will impact on New Zealand society greatly if it passes.[iv] The public is also realizing that the government, and in particular, John Key, is misleading the citizenry, either through incompetence, willful ignorance or deception.

As was made clear by numerous speakers at the Town Hall meeting, the prime minister either did not understand the GCSB bill or he was deliberately misleading the public when he appeared on TV3’s Campbell Live on Wednesday August 14, 2013. The first speaker, Rodney Harrison QC, stated that “John Key was wrong in law to say that New Zealanders had nothing to fear” with the expanded spy powers, when he was interviewed by John Campbell. Indeed, Key claimed that Campbell Live wrongly presented the proposed GCSB bill as a wholesale broadening of spy powers on New Zealanders. Key claimed the GCSB bill allowed the GCSB to provide assistance to the SIS, police and defence and that this meant its surveillance powers on New Zealanders was “a narrowing”. This claim is false. Key also claimed, “everything that the GCSB does is legal.” This is also false and is clearly a lie because it is common knowledge that the proposed law has been drafted to make legal the kinds of surveillance activities that the GCSB has been doing illegally.

Despite John Key’s logically flawed claim on TV3’s Campbell Live (14 August 2013) that, “It doesn’t matter what technology we use, the important thing is that it’s legal”, spy technologies can retrieve, sift and store data pertaining to people’s friends, whanau, workmates, clients, contacts and community affiliations.[v] In essence, Key was claiming that neither the issues of technology nor the issues of law matter. According to the prime minister, all that matters is that this bill passes with a majority vote.

By making this claim, Key was not only dismissing people’s concerns about the invasive technology that the GCSB is using, such as XKeyscore (and would be authorized to use in the future). Key was also dismissing legitimate concerns about the law itself, such as the expansion of search warrants powers by multiple paths that various sections of the bill allow. In other words, Key was deliberately sidestepping the core issues by deceiving the public that none of the issues matter. To make this audacious lie, Key committed himself to a well-worked out strategy to downplay the technology used by the GCSB. The logical flaw in Key’s argument here, ironically, was that of ‘omissions of key evidence’, because the minister in charge of the GCSB refused to discuss the technology used.[vi] The other closely related logical fallacy that Key committed himself to make was that of ‘denying the counterevidence’ that TV3’s current affairs host, John Campbell, introduced. The counterevidence was that The Guardian newspaper reported that the US National Security Agency’s (NSA) ‘Five Eyes’ spy partners, which includes New Zealand’s GCSB, are using XKeyscore surveillance technology.[vii] This means that intelligence analysts at the GCSB can use programs such as XKeyscore to create a historical digital picture of a person’s telecommunications activity. XKeyscore can be used to track the metadata (data logs of usage patterns) and content of a person’s emails, social media use, web browsing, transactions, texts and phone-calls to construct a network picture of a person’s life and everyone they interact with.

Importantly, Key repeatedly promoted the idea that New Zealanders could expect only nine individuals per year to be targeted for surveillance (if past trends continued). Unfortunately, Key was able to mislead the public with this claim regarding the extent of surveillance because John Campbell failed to challenge the prime minister on the broadened capacity of class-based search warrants that the GCSB bill would provide. Key misled also when he claimed the GCSB would need 130,000 staff and $6.6 billion dollars annually if it were “to listen to every phone call and read to every text message in New Zealand”. Here, Key committed the logical fallacy of ‘over-simplification’. No one who is seriously following this issue is claiming that the GCSB or the rest of intelligence apparatus are actually going to do this. Because Key refused to discuss technologies, such as XKeyscore, and other technologies that can process complex algorithms for future search purposes, the prime minister was able to ‘argue from ignorance’. By employing this logical fallacy, which occurs when a person refuses to acknowledge the counter-evidence, or when their ‘opponents’ are unable to present a counter-argument, Key was able to downplay the extent of the mass surveillance that the GCSB bill will allow.

Therefore, this bill expands the search warrants capabilities of the GCSB from an individual basis to “classes of persons”, “classes of place” and “classes of information infrastructures”. As Harrison pointed out in his speech, as well as his opinion piece in the Sunday Star-Times (August 17 2013), these categories are very broad.[viii] Harrison argued that Key misled when he claimed after the Campbell Live interview that the content of New Zealanders’ electronic communications would not be gathered and stored, only the metadata, but when The New Zealand Herald pointed out this was not true, he back-tracked and offered the manipulative assurance that he would ensure the warrants he signed off would limit the GCSB’s data gathering to metadata.[ix] This however is a false assurance, because as Key stated in the Campbell Live interview, under the proposed law, metadata and content collection is treated as the same information. Incredibly, the prime minister downplayed the expansion of search warrant powers by claiming they provided a protection akin to a Norton anti-virus program. This pre-planned media strategy to manipulate the New Zealand public is inexcusable.

Together these changes mean that anyone who knows anyone who cares enough to challenge councils, governments and transnational corporations about an open, free society can also be targeted for surveillance of their communications, conversations and congregations. As numerous speakers at the Auckland Town Hall meeting argued, there is hidden in this expansion of spying power a prejudice to target any individuals, groups or institutions that oppose big corporate and government interests in, for instance, land and sea mining, ‘free trade’ agreements and ‘free market’ austerity measures for surveillance. We know this from the track record of the intelligence and enforcement apparatus during the Clark and Key regimes.

Remember the police spy and agent provocateur – Rob Gilchrist – who infiltrated New Zealand activist groups, such as Greenpeace, Save Happy Valley, the GE-Free Coalition, the anti-Iraq war movement and anti-poverty campaigners? As journalist Nicky Hager revealed, Gilchrist’s spying, which was directed by a police anti-terror squad, occurred over a 10 year period and undermined legitimate democratic organisation.[x] Because the NZ Police had inside information, they were able to sabotage the protests by being able to spring the activists, make arrests, and shutdown the direct actions early. No one was held accountable for these breaches of universal human rights to freely associate and participate in the political life of New Zealand society (ratified, as they were, at the close of World War II).[xi]

Indeed, the recent legislative ban on protesting at sea highlights the Key government’s preference for ‘speed politics’ in order to serve corporate power. Like the current GCSB bill, an amendment to the Crown Minerals Bill to make protests at sea illegal was also hurried through. The sea protest ban emerged out of two private meetings between oil exploration interests and the National’s MPs, according to the Labour Party.[xii] The Crown Minerals Act bans protests on the sea within 500 metres of vessels and oil riggings in New Zealand waters.[xiii] It’s crucial to remember that the country’s ‘nuclear-free NZ’ stance would not have occurred if it had been illegal to organise the flotilla’s on the Waitemata Harbour in the 1970s and 1980s to oppose US ship and submarine visits.[xiv] It is therefore, ironic, in light of the current GCSB spy bill that the National government refuses to release the minutes of the private meetings that its MPs had with oil interests prior to the sea protest ban.

This bill would allow the GCSB and others agencies to legally and remotely spy on activist groups to assist the New Zealand government to sabotage citizens’ initiated protest. Increased powers to target activist groups for mass surveillance undermines their ability to stage successful actions which are crucial to gaining wider public support on important issues. If news audiences only see protestors being arrested, because the NZ Police have ‘the jump’ on their actions, then it will likely create the perception that ‘activists just do illegal stuff’ (which is a common perception among the Police, even senior ones). In other words, through this bill, the Police will gain the capacity to shutdown protest actions early. In the absence of much positive imagery of the action itself, negative images of activists being arrested will likely feed conveniently into an already dysfunctional commercial media system, with its pro-market bias, to marginalize protest. Ironically, this proposed mass surveillance net extends to journalists and other news media personnel, since many of their contacts are activists. Belatedly, some in the news media have expressed concern about the increased spy powers afforded to the GCSB in this proposed legislation. Some in the news media have recognised that mass state surveillance rolls-back a hard-won social construct that major news outlets have otherwise conditioned the mass populace to take for granted: ‘free and open’ society.[xv]

Protest, civil disobedience and other non-violent creative direct actions in allegedly ‘free and open’ societies are an important peaceful means that citizens have to express opposition and influence councils, governments, and corporations in order to gain positive social-economic-political change. In effect, prime minister John Key is saying the right to privacy is to be decided by those among us privileged to do so, with undefined, nebulous terms that determine the functions of the GCSB such as ‘national security’, ‘economic well-being’, and ‘international relations and well-being of New Zealand’. In effect, key insiders of New Zealand’s capitalist class are extending the quarantine from surveillance to the super-wealthy, both foreign and domestic, in lock step with the world-wide state-sponsored Finanical-secrecy Haven Complex.[xvi] The notable exception is the former MegaUpload founder, Kim Dotcom, who was illegally spied upon by the GCSB, even on the day of his arrest, ostensibly for breaching US copyright law.[xvii]

Additionally it was with extreme arrogance that John Key actually mocked John Campbell numerous times In two instances, Key said the TV3 host was “frightening people” and another time when he said to the current affairs presenter “You may as well read out what’s on the James Bond movie”. It isn’t simply that Key was poking fun at Campbell that is at issue here, because there is nothing unlawful about arrogance, per se. However, the prime minister was actually performing the role of a consummate propagandist, which is a deliberate action to deceive. Propaganda here means the mass deployment of persuasive techniques by dominant coalitions in order to gain society’s acquiescence (Jowett & O’Donnell 1999: 3).[xviii] Here, Key again refused to discuss the spy technologies, XKeyscore, Prism, and Tempora, and he purposefully made it seem as though the GCSB does not use such technologies because that would only happen in a fictional action film.

Campbell was trying to explore the connections between the GCSB and the ‘Five Eyes’ spy partners.[xix] This is important since the GCSB bill does allow gathering of New Zealanders’ communications with foreign individuals and organizations, particularly when enjoined with the new search warrants’ class categories.  Foreign organizations could mean international websites that provide counter-narratives to the ‘war on terror’ propaganda of the ‘Five Eyes’ countries. As Jane Kelsey argued in her presentation at the Auckland Town Hall meeting, under this bill her communications with foreign individuals and organizations, who oppose the Trans-Pacific Partnership Agreement would be considered “fair game” for surveillance. The Auckland University professor of law explained that because of the GCSB bill expands the functions of GCSB to consider the ‘economic well-being’ and ‘international relations and well-being of New Zealand’, any class of persons that oppose the government’s ‘free market’ economic policies would be “open slather” for being subject to an SIS warrant.

To sum up, it is on the basis of deception, outlined in this letter, that I argue John Key has forfeited his official positions as prime minister and the minister in charge of the GCSB.

I request that you intervene in the passage of the Government Communications Security Bureau and Related Legislation Amendment Bill.

I also request that you investigate the conduct of the minister responsible for the GCSB and also in his role as leader of the government and the nation in regard to the GCSB bill; the handling of GCSB’s illegal spying and his unwillingness to secure New Zealand’s boundaries from foreign interference, including the unjust, unsafe and unlawful legal precedent of agreeing to expatriate a wrongfully arrested New Zealand resident because anti-competitive foreign entertainment-propaganda cartels want to shut-down a well-resourced new market entrant.

Furthermore, I request an investigation into Key’s failure to direct resources to a broader, more deliberative, multi-party, open public inquiry to review New Zealand’s intelligence, enforcement and defence apparatus, when he had the opportunity, but instead limited the inquiry to the GCSB, with highly restricted terms of reference.

I request an un-redacted copy of your team’s report on the above requests and the points outlined in this letter.

Thank you for your careful consideration of these matters.

Yours sincerely,

Stephen Edwards

[i] Video of the Stop The GCSB Bill Public Meeting – Auckland Town Hall. Slipstream. http://thedailyblog.co.nz/

[ii] Complex GCSB bill so loose it’s dangerous. (2013, August 18). Sunday Star-Times. A15; Speaking out against the GCSB. Retrieved from http://www.3news.co.nz/Speaking-out-against-the-GCSB-bill/tabid/367/articleID/306376/Default.aspx; Bradbury, Martyn. (2013, May 7). Key to allow GCSB Eye of Mordor to spy upon the Shire. Retrieved from http://thedailyblog.co.nz/2013/05/07/key-to-allow-gcsb-eye-of-mordor-to-spy-upon-the-shire/

[iii] John Key Defends the GCSB Bill. Retrieved from http://www.3news.co.nz/John-Key-defends-the-GCSB-bill/tabid/817/articleID/309018/Default.aspx

[iv] Complex GCSB bill so loose it’s dangerous. (2013, August 18). Sunday Star-Times. A15; Speaking out against the GCSB. Retrieved from http://www.3news.co.nz/Speaking-out-against-the-GCSB-bill/tabid/367/articleID/306376/Default.aspx

[v] John Key Defends the GCSB Bill. Retrieved from http://www.3news.co.nz/John-Key-defends-the-GCSB-bill/tabid/817/articleID/309018/Default.aspx

[vi] Damer, T. E. (2009). Attacking Faulty Reasoning: A Practical Guide to Fallacy-free Arguments (6th ed.). Belmont, CA: Wadsworth.

[vii] Greenwald, Glenn. (2013, July 31). XKeyscore: NSA tool collects ‘nearly everything a user does on the internet’. Retrieved from http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data

[viii] Harrison, Rodney QC. (2013, August 17). Wholesale spy power is precisely what GCSB bill means for Kiwis. Weekend Herald. A28; Anne Salmond. (2013, August 17).

[ix] Young, Audrey. (2013, August 16). Labour, Greens condemn Key’s GCSB pledge. Retrieved from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10913351

[x] Hager, Nicky. (2008, December 14). Crossing the line: the activist who turned police informer. Retrieved from http://www.nickyhager.info/crossing-the-line-the-activist-who-turned-police-informer/

[xi] The Universal Declaration of Human Rights of 1948. Retrieved from http://www.un.org/en/documents/udhr/history.shtml

[xii] The first meeting on September 4 2012 between Economic Development minister Steven Joyce and Shell New Zealand chairman Rob Jager, business advisor Chris Kilby and Chief Executive of Petroleum Exploration and Production Association David Robinson. Labour’s energy and resources spokeswoman Moana Mackey claimed that documents obtained through an official information request showed that Shell impressed on minister Joyce that there “insufficient legal authority” to restrict protests against vessels and oil rigs. Mackey claimed that Shell presented Joyce with a white paper outlining their concerns. Furthermore, Labour claimed that the second meeting took place on February 14 between National’s Energy and Resources minister Simon Bridges, two weeks before he presented a paper to Cabinet. This paper, according to Labour, quoted bureaucrats from the Ministry of Business, Innovation and Employment who wanted “a more robust Government response to threats of, and actual, direct protest action.” Mackey also stated that the documents showed Bridges strategy had been to circumvent public consultation by withholding a regulatory impact from Parliament until the last minute so that MPs could not track amendments through the select committee.

[xiii] Young, Audrey. (2013, April 16). High seas protest law passed. Retrieved from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10877937; Mackey, Moana (2013, May 31). Bridges withheld sea protest ban info. Media Release: New Zealand Labour Party. Retrieved from http://www.scoop.co.nz/stories/PA1305/S00617/bridges-withheld-sea-protest-ban-info.htm; APNZ (2013, May 30). Joyce made ‘backroom deal’ over high seas protest ban – Labour. Retrieved from http://www.nzherald.co.nz/news/print.cfm?objectid=10887489&pnum=1; Theunissen, Matthew. (2013, July 17). Minister’s ‘pants on fire’ billboard. Retrieved from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10899200

[xiv] Ship visits – nuclear free New Zealand. (2012, December 20). Ship visits and public opinion. Retrieved from http://www.nzhistory.net.nz/politics/nuclear-free-new-zealand/ship-visits. New Zealand History Online. Ministry for Culture and Heritage; Nuclear free legislation – nuclear free New Zealand. (2013, June 25). Retrieved from http://www.nzhistory.net.nz/politics/nuclear-free-new-zealand/nuclear-free-zone; Vance Andrea. (2012, October 3). World spies in NZ days before Dotcom bolt. Retrieved from http://www.stuff.co.nz/national/politics/7759864/World-spies-in-NZ-only-days-before-Dotcom-bolt

[xv] Complex GCSB bill so loose it’s dangerous. (2013, August 18). Sunday Star-Times. A15; Speaking out against the GCSB. Retrieved from http://www.3news.co.nz/Speaking-out-against-the-GCSB-bill/tabid/367/articleID/306376/Default.aspx

[xvi] See: Palan, R., Murphy, R., & Chavagneux, C. (2010). Tax Havens: How Globalization Really Works. Ithaca, NY: Cornell University Press; Shaxson, N. (2011). Treasure Islands: Uncovering the Damage of Offshore Banking and Tax Havens. New York, NY: Palgrave Macmillan; Espiner, Guyon. (2012, October 7). Treasure Islands. TV3 http://www.tv3.co.nz/October-7th—Treasure-Islands/tabid/2059/articleID/79739/Default.aspx; Leask, Anna (2013, June 1). How super-rich Kiwis dodge tax. Retrieved from http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10887756

[xvii] Vance, Andrea. (2012, September 29). Dotcom saga rebounds on Key Government. Retrieved from http://www.stuff.co.nz/dominion-post/comment/7746904/Dotcom-saga-rebounds-on-Key-Government; Scoop Team. (2012, October 1). Key, Dotcom and Hollywood. Retrieved from http://www.scoop.co.nz/stories/HL1210/S00006/key-dotcom-and-hollywood.htm

[xviii] In his book Propaganda, Jacques Ellul emphasizes, “The propagandist naturally cannot reveal the true

intentions of the principal for whom he acts … That would be to submit the projects to public discussion

to the scrutiny of public opinion and thus to prevent their success … Propaganda must serve instead as a

veil for such projects, masking their true intention” (1965: 58-59 as cited in Herman & Chomsky 2008:

LI). Manufacturing Consent: The Political Economy of the Mass Media (Anniversary ed.). London, England: The Bodley Head. (Original work published 1988).

[xix] Burghardt, Tom. (2013, July 13). Echelon Today: The Evolution of an NSA Black Program Retrieved from http://www.globalresearch.ca/echelon-today-the-evolution-of-an-nsa-black-program/5342646; Hermann, Burkely. (2013, June 10). The NSA’s Greatest Hits: “We’re the Only Ones Not Spying on the American People”. Retrieved from http://www.globalresearch.ca/the-nsas-greatest-hits-were-the-only-ones-not-spying-on-the-american-people/5338393; Zetter, kim. (2013, July 21). Spying on Americans, Cellphones, Emails: The NSA is on the Line – All of Them. Retrieved from http://www.globalresearch.ca/spying-on-americans-cellphones-emails-the-nsa-is-on-the-line-all-of-them/5343442