GCSB Bill: why small govt conservatives should be worried

Pique and politics, rather than principle, have come to dominate the debate over the changes to how New Zealand's Government Security Communications Bureau is run.

The issue is too important for this to be allowed to happen.

This is an extension of state power, a large and rather vague one; it relies on public servants to stay within some very poorly defined rules when they have demonstrated they even cannot stay within more strictly defined ones; and it should not be allowed to become dominated by the political opportunism of the opposition parties - all of whom, in other situations, rather like extending rather than reducing state power.

One of the most unfortunate aspects of the whole business is the way in which political parties such as the Greens and Labour, not to mention a few self-dramatising left wing journalists, have captured the whole issue.

This has clouded rather than illuminated the issues.

It is not enough to argue, as Prime Minister John Key and others do, that the law changes simply tidy up existing law and are broadly consistent with what was intended when the legislation was passed a decade ago anyway.

The difficulty with this is twofold: one aspect is technology improvements are already giving government officials far greater ability to intrude on citizens, regardless of any law changes.

The second is that government officials have demonstrated all too clearly in recent weeks they do not follow precise rules anyway:  when the Prime Minister’s office says “jump” they don’t ask “how high?” they jump as high as they can, regardless of any legal height limits.

In short, there is no protection against gutless and toadying officials using these powers to curry favour with the next person in the chain of command (and more of this below).

The speed of recent technological development is unprecedented: its direction and destination is still unclear.  This is not a time for any law changes which give government officials vague new powers and just hope for the best.

Rather, it is a time for pause and evaluation.

For the changes are extraordinarily vague. 

They empower the GCSB to “cooperate with, and provide advice and assistance to, any public authority whether in New Zealand or overseas, or to any other entity authorised by the Minister, on any matters” relating to communications processed stored or communicated within New Zealand; as well as any “information infrastructures of importance to the Government of New Zealand”.

It goes further: it empowers the GCSB “ to do everything that is necessary or desirable to protect the security and integrity” of
information infrastructure.

As Internet New Zealand and the Law Society have pointed out, these extraordinary powers require better oversight

“Undoubtedly there is a need for surveillance powers, but they need to be exercised within tight limits, under good oversight, and with respect for people’s right to privacy,” is how Internet New Zealand president Susan Chalmers put it yesterday.

“This isn’t a contradiction – it’s the heart of the balance the legislation has to get right.”

But we also need to look at how officials in the GCSB, the Police, and Parliamentary Services have also been shown to have behaved recently.

Start with the matter which triggered all this: the spying on Kim Dotcom.

You don’t have to be a fan of Mr Dotcom. The fact is, the chap is a convicted fraudster who made his money by plundering other people’s intellectual property. 

But that has to be put aside: a more important point of principle is at issue here.

The GCSB spied upon him in the belief it had powers to do so because he was not a citizen.  It turned out he was, and in fact had commissioned one of the largest fireworks displays ever seen in New Zealand’s largest city, on New Year’s Eve, to celebrate this.

The GCSB – New Zealand’s largest and most expensive information gathering agency – somehow missed this fact.

So this agency now wants more powers, and no doubt, next budget round, more taxpayer funds to use those powers. 

And it will no doubt also supersede those powers if its functionaries think they can curry favour with the boss by doing so.

Similarly with the inquiry into who leaked the report on the GCSB investigation to Dominion Post reporter Andrea Vance. Parliamentary Services handed over a whole lot of information to the inquiry, illegally – presumably on the assumption that because the boss wanted it, the boss should get it.

Another example: the Police investigation into the taping of Mr Key and Act leader John Banks on that benighted tearoom photo op in Newmarket during the last election campaign.

We learned last week the Police not only hurled disproportionately large resources into the investigation, but they also illegally intercepted communications between the photographer concerned and his lawyer.

Again, you have toadyism: sucking upstairs because it is likely to please the boss.

It is not enough to blame all this on the prime minister, or even his office. 

It would be great if it were that simple.

The problem goes much deeper.

It is about the enablers: the timid and toadying functionaries who will throw law and principle out the window in order to curry favour with their superiors. 

New Zealand is not a feudal society. It is a society based on the rule of law, on the principle that government functionaries can only act in accordance with the law and not exceed that simply to brownnose the next functionary up the command chain.

“Government of laws and not of men” is not a left wing principle: it was most clearly enunciated by John Locke, whose writings on government in the late 17th Century form the basis of much classical liberal and conservative philosophy about private property rights – and what is personal privacy if not a private property right? – and small government.

Those who favour small government, and having the rights of officials to interfere in your lives and business kept under firm legal control, should be concerned about this legislation.

You might be irritated by the way a few prominent left wing journalists have seized upon this and used it as a soapbox.

You might be outraged at the shamelessness of opposition parties who rail against this particular extension of state power but who plan to extend that powers with every other announcement they make.

Put that irritation and outrage to one side for now. It will keep, believe me. There is a more important issue to deal with now.

Think on this: what will those politicians from the left wing parties like the Greens or Labour do with these powers when and if they attain office?

If you think they will do anything rather than use these powers to further bolster the size of the state in our lives, then I have an emissions trading scheme to sell you.

rhosking@nbr.co.nz