27 July 2013

What's good about the GCSB Bill?

Cyber-crime, cyber-warfare, and hence cyber-surveillance, like it or not, are here to stay, and will inevitably grow in sophistication. Read here, for instance, about what may be the biggest hacking crime ever, and that could have affected ordinary credit-card holders like you or me. Two good things about the GCSB Bill are: one, that we are getting clearer (though far from perfect) law governing this shadowy business (that is, clearer than the Act passed by the Labour-led government); and, two, that we are having a very vigorous public debate about an organization that, before Kim Dotcom's arrest, most New Zealanders had probably never even heard of. In other words, we are having a public debate about the acceptable limits of policing and of spying, and that's good.
Given the global nature of cyber-crime and terrorism, it is naive to think that the GCSB's signals and cyber-intelligence capabilities should categorically never be used to spy on New Zealanders. There is no reason to believe that New Zealand citizens or residents will never be involved in cross-border cyber-crime or terrorism, and it would be plain stupid of us not to use all the resources we have available to prevent or detect such activities. The important proviso, as with any form of policing, concerns adequate legal safeguards and judicial oversight, so that such capabilities are not being used for political purposes, or as a just-in-case surveillance drag-net to fish for criminal or hostile activities. The GCSB Bill lacks oversight and warranting provisions that are sufficiently independent from the Prime Minister to satisfy me (and many others) that the agency's powers can be kept in proper check. All it takes is another Muldoon...
The Bill needs to ensure that it will be transparent to us when our private communications (including metadata) may be intercepted, for what purposes, under what legal constraints, and with what forms of public and judicial oversight. Secret policing is a subject about which, by definition, we cannot know in its operational detail; but the public need to be able to satisfy themselves that the boundaries of such policing go only as far as necessary for our security, and that they respect privacy and other fundamental rights. 'Trust us, we know what we're doing' and 'the innocent have nothing to fear' are mere words and need to be backed up by legal mechanisms and sanctions.
The rush to pass this GCSB Bill may be necessary for short-term operational reasons, but rushed law-making is always likely to be poor law-making, and a tea-break right now to allow time for a public inquiry and debate does sound sensible. In any case, I'm sure that this controversial law will be amended further in the future as the political debate rolls on.
One good thing in the Bill (that few critics have commented upon) is the clarification of the process for appointing the GCSB's Director. The present s 9 of the Act simply states: 'The Director of the Bureau is appointed by the Governor-General.' The GG acts on the advice of the responsible Minister, the PM, and so it is a simple prime-ministerial appointment that does not need to involve the State Services Commissioner or anyone else. The Cabinet Manual, however, has a requirement that the Commissioner is to be involved, and so the Bill is aligned with that. The SSC will manage the recruitment of the Director and make a recommendation to the PM. The appointment is made by the GG, on the advice of the PM, as before, but the legal requirement to involve the SSC will mean that the post is less likely in future to be a military old-boys' jack-up. We are more likely to get well qualified, experienced public servants on the job.


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