DPF on the GCSB

Over at Kiwiblog, DPF has done a compare and contrast between the existing GCSB legislation from 2003, and the legislation that Parliament will pass this afternoon.

And rather than spend time reinventing the wheel, here's what DPF says:

The GCSB law has completed its committee stage, and will pass its third reading today.

Some people would have you believe that this law is a massive change from the current GCSB law passed by Helen Clark. Well, they are partially right. It is significantly different. I’ve detailed below my analysis of some of the major differences between the 2003 Helen Clark law and the 2013 John Key law.

Helen Clark GCSB law 2003	John Key GCSB law 2013
Inspector-General sole independent oversight	two person advisory panel to assist the Inspector-General of Intelligence and Security
Inspector-General has no staff resources	Inspector-General has a Deputy
Inspector-General role is essentially reactive	Inspector-General to proactively annually review GCSB procedures, policies and compliance and do unscheduled audits
Inspector General not informed when a warrant is put on the register relating to a New Zealander	Inspector General is informed when a warrant is put on the register relating to a New Zealander
GCSB can’t intercept the communications of a NZ citizen or permanent resident but can assist “any public authority” on any matter relevant to their functions, and unclear if the former prevents the latter	GCSB can’t intercept the communications of a NZ citizen or permanent resident but can assist (only the) Police, Defence Force or SIS even if it involves a NZer.
No reporting of assistance given to other agencies	GCSB will be required to report annually on the number of instances when it has provided assistance to the Police, SIS or NZ Defence Force
No reporting on number of warrants and authorisations	GCSB will also be required to report annually on the number of warrants and authorisations issued
Intelligence and Security Committee has secret hearings to discuss the financial reviews of the performance of the GCSB and the SIS	Intelligence and Security Committee will hold public hearings annually to discuss the financial reviews of the performance of the GCSB and the SIS
ISC does not have to publicly report to Parliament	ISC to report annually to Parliament on its activities
No regular reviews of GCSB	An independent review of the operations and performance the GCSB and the NZSIS and their governing legislation in 2015, and thereafter every 5-7 years
GCSB has a function to protect any information that any public authority or other entity produces, sends, receives, or holds in any medium	GCSB function to protect any communications that any public entity processed, stored, or communicated in or through information infrastructures
No specification of limits of GCSB assistance	Specifies that GCSB can assist Police, Defence Force and SIS, but only for lawful activities such as where warrants have been granted
IPCA has no jurisdiction	Gives the IPCA and the IGIS jurisdiction to review any assistance given to Police and SIS respectively
No references to according to human rights standards	Specifies all functions of GCSB must accord with NZ law, and all human rights standards recognised by NZ law.
No references to not undertaking partisan activity	Specifies GCSB can’t be involved in any action that helps or harms a political party
No requirement to brief the Leader of the Opposition	GCSB Director required to brief Leader of Opposition regularly on major activities of GCSB
Requires GCSB to destroy any records not relating to GCSB objectives or functions	Required GCSB to not retain any information on NZers collected incidentally as part of foreign intelligence operations unless relates to serious crime, loss of life or national security threats
No special protection for legally privileged communications	Legally privileged communications explicitly exempted from scope of an interception warrant
No requirement to have a policy on personal information retention and use	GCSB required to work with Privacy Commission to have a policy on personal information retention and use
No restrictions in GCSB Act on retaining personal information	GCSB can only retain personal information for a lawful purpose, and can’t keep longer than required for any lawful purpose

This is not a complete analysis. I was hoping the Government may have such a document themselves, but it seems they don’t. So I put it together last night by comparing the 2003 Act and the latest SOP from the Government. I am sure I have missed out a couple of things, and over-simplified in a couple.

The point is to point out that the 2013 law is including a huge number of protections that the 2003 law is silent or, or missing. Those demanding the law not pass would have you implicitly think the status quo is superior. They are quite wrong, and mischievously so. Recall the current law does not ban the GCSB from assisting the Police and SIS. It has merely been said by lawyers to be unclear, and in fact the Inspector-General has said the assistance has been legal.

 I think the Government has bent over backwards to put protections into the law, partly as a result of their coalition partners. Have a read of the existing law, and decide for yourself.

So my question to all the people demanding National MPs cross the floor and vote against the bill, is where were you in 2003? Where were the protests against the 2003 law? Where were the demands Labour MPs in 2003 voted down Helen Clark’s law?

Also I ask how many media stories have focused on an actual side by side analysis of the old and laws, detailing all the changes? Or have they just live-streamed protest meetings?

It is unfortunate that amongst all the media coverage of the GCSB Bill, there has been little if any informed comment from our media as to just what the GCSB will and will not be permitted to do once the new law passes today. There has been an abundance of emotion and scaremongering, with phrases like "mass surveillance", "spying on your e-mails" and Godwin-like comparisons of the GCSB and the Government to the Gestapo.

Instead a blogger has taken the time and trouble to compare the 2003 and 2013 legislation in a reasoned an unemotional manner. A comparison such as this would have been helpful much earlier in the debate.

There will doubtless be plenty of hot air unleashed as the Third Reading debate takes place this afternoon. But when the sun rises tomorrow life will go on, and in due course the GCSB will know exactly what it is permitted to do, and what it is especially prohibited from doing. That level of certainty will help to ensure that a situation such as the Kim Dotcom one is not repeated. 

Laws on the media

There's been lots of umbrage from a number of journalists over the last week over the release of phone records to the Henry inquiry. Let's not forget that the purpose of the Henry inquiry was to establish who leaked a confidential report on the performance of the GCSB to journalist Andrea Vance from Fairfax.

Michael Laws has weighed in to the debate. And oddly, he has little sympathy for the journalistic community; under the headline Journalists can't handle the truth Laws opines:

One of the great dichotomies of democracy is that we don't trust those that we elect to lead us. This does not stop us getting very passionate and involved every electoral cycle. We have one of the highest electoral turnouts in the Western world.
The same point might be made of the relationship between the New Zealand news media and the public. We are avid consumers of news - we just don't trust the people charged with managing that information.
There's good reason for this. Politicians have acquired an unenviable reputation for promising sunshine and delivering rain. Journalists, for reporting the rain as snow. Charged with delivering the truth, they deliver their own version. It's the final scene of Orwell's Animal Farm made post-modern.
The best example of this is the parliamentary press gallery - a gaggle of competing egos, and any number suffering a God complex. TV3's Patrick Gower was a perfect example last week, claiming that his job "is to hold the Government accountable . . . we're the eyes and ears of the public".
No, it isn't. And no, he's not. His job is not to act as judge and jury - it is to relay the facts and let us make up our own minds. That's the fatal misstep that so many journalists make: they really do believe that they're our moral arbiters and secular priests. 

We agree with Laws on that point. We've often argued that the primary role of journalists is to report the news rather than to create it or even to BE the news. However as the "old media" struggle to remain relevant, many journalists are also expanding their reach into the blogosphere, albeit through their media outlets. In the race to provide a sensational by-line, we wonder if some are losing their objectivity.

Laws has been on the receiving end of his share of journalistic attention, although that's hardly surprising when you seek the limelight as he has done over many years. But his comments on the "piranha mentality" of the media pack are interesting; he concludes thus:

In arguing that the Henry inquiry was snooping on one of its own, Andrea Vance, they forget that theirs is a vocation that regularly invades the privacy of New Zealanders. That regularly employs unethical practices to acquire information - that actively encourages the illegal leaking of confidential information. And yet habitually claims the moral high ground.
There's also something of a piranha mentality at play. If there's the faintest hint of blood in the water, the whole pack is at play. And there's an audacious hypocrisy at play. I'm told numerous Official Information Act requests came from journalists - many from the parliamentary press gallery - seeking exactly the same information as Parliamentary Services provided to the Henry inquiry. If the press had obtained it, they would all have published.
A couple of years ago, fellow Sunday Star-Times columnist Andrea Vance wrote a fascinating account of her time as a News of the World reporter. She described the high pressure tactics and threats that were routine in trying to prise information from reluctant members of the public. 
In the past five years, I've both witnessed and experienced similar tactics here. And they clearly win those practitioners media awards - such as the New Zealand Herald's David Fisher, the current Canon Media Awards reporter of the year.
So when the parliamentary press gallery tries to claim the moral high ground, it is never an easy climb. Especially when their latest mini-scandal has all the hallmarks of a cock-up.
After all, it's hardly Watergate. 

It is a bit difficult for Andrea Vance to claim the moral high ground here given, as we mentioned earlier in this post, that this whole messy business started with her publishing a confidential government report that has been leaked to her by a person or persons as yet unknown. 

That Ms Vance is now apparently saying that her details are sacrosanct but others' are not is just a little precious, especially given the column of hers of a couple of years ago described above.