Inspector-General finds GCSB did not break the law

The GCSB has said:

The Inspector-General of Intelligence and Security has completed an inquiry into potential breaches of the Government Communications Security Bureau Act (2003).

The GCSB Director, Ian Fletcher says, “The Inspector-General formed a view that there have been no breaches, although the law is unclear and the Inspector-General recommends amending it.”

The Inspector-General is Paul Neazor. He is a former New Zealand Solicitor-General and former Hgigh Court Judge who was appointed Inspector-General by Helen Clark.

The Kitteridge report never concluded the GCSB had broken the law. It reported that they may have broken the law, because the law is unclear. Crown Law had said they were uncertain whether the section on not intercepting communications of NZers over-rode the section on assisting other agencies when they had legal interception warrants.

The Inspector-General has said that basically on balance of probabilities he does not believe their actions have been  outside the law – but again, that it is not absolutely clear.

A recent review of compliance at the GCSB by Rebecca Kitteridge found difficulties of interpretation in the GCSB Act. Following the Prime Minister receiving that report, cases involving 88 New Zealanders were referred to the Inspector-General. All were cases where the GCSB had been asked to help another agency.

Mr Fletcher says the Inspector-General found that all of the cases were based on serious issues including potential weapons of mass destruction development, people smuggling, foreign espionage in New Zealand and drug smuggling.

Nothing to worry about then!

• 15 cases involving 22 individuals did not have any information intercepted by GCSB. 
• another four cases involving five individuals were the subjects of a New Zealand Security Intelligence Service warrant and the GCSB assisted in the execution of the warrants. The Inspector-General is of the view that there were arguably no breaches and the law is unclear.
• the Bureau only provided technical assistance which did not involve interception of communications, involving three of the individuals, so no breach occurred.
• the remaining cases involved the collection of metadata, and the Inspector-General formed the view that there had arguably been no breach, noting once again that the law is unclear.

It is worth noting that this is over around a 10 – 12 year period, so we are not talking a huge amount of activity.

Mr Fletcher says the Inspector-General is of the view that the interpretation of “communication of a person” is one of the issues where there are uncertainties in the interpretation of the GCSB Act, when it comes to metadata.

An example of metadata is the information on a telephone bill such as the time and duration of a phone call, but not the content of the conversation or identification of the people using the phone.

Now it is not good enough that interceptions happened when there was uncertainty over the law. The operations of the spy agencies must be beyond doubt legally. Hence the major changes being made to GCSB to ensure no repeat. But it is worth putting this into context, especially compared to the current scandals in the US with Associated Press and Fox news journalists having their communications intercepted to try and find out their sources on security issues.

As previously stated, Police have conducted a thorough check of all their systems. Police advise that no arrest, prosecution or any other legal processes have occurred as a result of the information supplied to NZSIS by the GCSB.

Which means no appeal against a conviction.