One of the main problems with our surveillance system, especially with the GCSB, in New Zealand is oversight. Who watches the watchers, in a system where the information cannot be revealed to the general public?
Is there a problem?
We don’t know. But we do know that people with access to others information use it for un-intentioned purposes.
An example of this can be found in recent events with the prosecution of Jeremy Malifa in the Auckland District Court. Mr Malfila pleaded guilty to 21 counts of accessing a computer system for a dishonest purpose “where he viewed the victims’ personal information, including contact details and their interactions with police, in order to establish sexual relationships with the women.”
And this is with oversight. If he had of been an employee of the GCSB then it is likely that no prosecution would have followed. The public would never have known.
Between 2011 and 2015 there were 113 Police Officers and employees of the Police that were caught accessing information without authorisation.
So who watches the GCSB?
The GCSB is given external oversight by both the Intelligence and Security Committee and the Inspector-General of Intelligence and Security.
Unfortunately the ‘Intelligence and Security Committee Act 1996’ states that,
The functions of the Committee do not include—
(a) inquiring into any matter within the jurisdiction of the Inspector-General of Intelligence and Security appointed under section 5 of the Inspector-General of Intelligence and Security Act 1996; or
(b) inquiring into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information; or
(c) originating or conducting inquiries into complaints by individuals concerning the activities of an intelligence and security agency that are capable of being resolved under any other enactment.
Leaving it solely the jurisdiction of the Inspector General of Intelligence and Security,
to inquire into any complaint by—
(i) a New Zealand person; or
(ii) a person who is an employee or former employee of an intelligence and security agency,— that that person has or may have been adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency:
So the oversight is now in the hands of one person but there is a catch.
(4) Except to the extent strictly necessary for the performance of his or her functions under subsection (1), the Inspector-General shall not inquire into any matter that is operationally sensitive, including any matter that relates to intelligence collection and production methods or sources of information.
No oversight at all?
So, unless you know that you have been adversely affected, the oversight of the GCSB has no power to see if anybody has been unfairly targeted unless it is at the request of the Prime Minister or the Minister in Charge of the NZ Security Intelligence services.
That is a giant hole in the system. I guess you could say there is internal oversight like the one that caught 133 people in the Police but I am not aware of anybody in the security services ever being disciplined for misconduct.
Even when they were found to have breached NZ law 85 times in the Kitteridge Report no-one was charged or disciplined. Perhaps because the Prime Minister (John Key) was also the Minister in Charge of the NZ Security Intelligence services?
When they were found to have illegally used mass surveillance in New Zealand, nothing happened.
There is no internal oversight apparent to any of the levels which should be required by a government organisation.
Any illegal doings of the GCSB are a black hole that can only be pierced by knowing that you are under surveillance by an organisation that does that surveillance in secret.
That isn’t oversight.
So, who watches the watchers?