Tuesday, 20 August 2013

#SurveillanceState: “But he’s such a *nice* man…” [update 4]

[I]n Friedrich Dürrenmatt's novella "Traps," which involves a seemingly innocent man put
on trial by a group of retired lawyers in a mock-trial game, the man inquires what his crime
shall be. "An altogether minor matter," replies the prosecutor. "A crime can always be found."

- Daniel J. Solove, “Why Privacy Matters Even if You Have 'Nothing to Hide'

Instead of protecting our private communications, the state plans to invade them.

There are people about, loads of them,who are okay with that.

In a veritable swamp of stupidity that I had to confront around me yesterday, I think the stupidest thing I heard in response to the GCSB Bill was a vox-pop on the wireless. It was a self-confessed National voter. He said he had nothing to fear, because John Key wouldn't do anything to hurt him.

That, my friend , is the stupidest thing I have heard in a long time of hearing very stupid things. I wonder how he would feel if it were Helen Clark giving herself the power to drop in on all your emails and phone calls, as she might have done? Or if it were Muldoon with the power to prohibit you protecting your privacy that John Key is giving the Executive?

Because that is really the way to think about this. If you think it's okay giving government the power to read our emails and tap our phone calls and use them all against us, and the reason you think it's okay because you support this government and your Mr Key is a nice chap, then just imagine a government with  the power to read your emails and use them against you that you don’t support.

Imagine a government enjoying these powers in which the other side is in power.  The other side whom you despise. Because in your life-time, they will be.

Imagine then a government to which you’re sternly opposed, whose policies you’re protesting, who has sicked their bureaucrats and their Inland Revenue Department on you (as Barack Obama for example did recently on his private political opponents)—and who has also been given the power to read all your communications and to do what they wish with them.

Or just imagine a bureaucracy who’s decided that you are against them.

Can you imagine a Helen Clark or a Robert Muldoon with those powers?  The fact is, as Rob Hosking points out, it will be for all of us the way the inadvertent Teapot Tapes bugger was treated:

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…
    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.

There were those at last night's Town Hall meeting to oppose this bill who argued that John Key knows what he is doing. That he is consciously using the state’s powers to stifle dissent.

I do not agree. I do not say John Key knows what he is doing. I say John Key does not understand what he is doing, and has no conception of what he is releasing into the world.

imageHe is of a piece with his former Minister of Injustice, Simon Power, who rammed through changes to the court system to make it more efficient that had the effect of leaving it less just—with Power peremptorily throwing out rights to silence, to trial by jury,and  to presumption of innocence,  with nary a hint he understood he was throwing out age-old protections against government doing us over.

So too when John Key proposes making the spying apparatus of the SIS and GCSB available to the police, without the normal limited judicial warrant. It’s like he’s never heard of the separation of powers, or legal restraint.

And so too last week, for example, when Key told John Campbell it was "totally incorrect" that "the Government effectively through GCSB will be able to wholesale spy on New Zealanders,” he wasn’t lying, he just had no clue he was totally wrong.  Because as Law Society head Rodney Harrison QC argues, wholesale spy power is precisely what the GCSB bill means for Kiwis.

The Prime Minister's attempt to reassure New Zealanders we are not sleepwalking into a total surveillance society is, unfortunately, flawed in its legal analysis …
    In a nutshell, the reason why Mr Key is wrong as a matter of law in claiming that New Zealanders have nothing to fear from the GCSB bill is that his limited analysis of the three new functions to be conferred on the GCSB totally overlooks the point that the statutory intelligence-gathering powers of the GCSB are also being considerably expanded, at the same time as its functions are. When the totality of the changes is considered, we have a major increase in the overall role and powers of the GCSB. That, in some instances, the Prime Minister's authority is required for the GCSB to proceed cannot alter this.

I invite that ignorant fellow on the radio, and all those who think like him, to consider how distant that authority will seem to a bureaucrat intent on doing you over for your own good.  Or how much that authority will be worth when the Prime Minster’s name is Cunliffe.

UPDATE 1The government is threatening an ISP founder with criminal charges for his decision to shut down the business, rather than agree to some mysterious court order giving them access to customers’ data. Yes, it’s in the US. No, it would be no different under Key’s new powers.

UPDATE 2:  ACT, the self-called Liberal Party is going to vote for this bill. Canterbury Uni economist Eric Crampton argues this should instead be a moment when ACT’s time has finally come.

ACT is already predicted to die in the next election. There's a 61% chance that ACT returns zero electorate MPs in the next election. Unless they move from an expected 1.2% vote share to a 5% vote share, the Party has greater than a 60% chance of dying in 2014.
If you're going to die in 2014 anyway, jump on this grenade while you're doing it. Die in a blaze of liberal glory, killing the GCSB legislation at third reading and forcing them to take the whole thing back to the drawing board. It might make it harder to get into coalition with National next time round if you do get back, but it could also start drawing in votes from that part of the electorate that cares about civil rights and tech freedom but shrinks in horror from the thought of Russel Norman being anywhere near the Treasury benches.
    If you can't do that, please have the courtesy to actually die in 2014 so that a liberal party might emerge…

UPDATE 3:  Video of last night’s Stop the GCSB Bill meeting at Auckland’s Town Hall:

This video is courtesy of SlipStream and Daily Blog.

UPDATE 4: From around the Twitter-Bookface-verse:







  1. I think you are crediting John Key with a fool's innocence, and if there is one thing John Key is not, it is a fool. I do not believe him when he justifies these Bills on the grounds that New Zealanders are being training by Al Qaeda. I think he is lying and people don't lie without a reason. That is what really scares me.

  2. Key has not got a principle that is not negotiable.

    His word is not to be trusted.

  3. Kiwiwit - He may not be a fool but he's a pragmatist. Pragmatists just do what they think is needed to address the problem at the time, without regards to principles and long term implications. For that reason I think PC's explanation is more likely than a dark conspiracy theory. The security threats he quoted from al-Qaeda, etc are probably real - I think he's just dealing with that the only way he knows how, and ignoring the long term implications.

  4. If Banks votes for this then he should, like Dunne be consigned to the excrement bin of history. Unfortunately he will and then collect his lifetime troughers pension.

    Never ever had any rpinciples and not likely to find any now.

  5. @Kiwiwit:
    You are right. He did tell us about the man-made earthquake, remember?

    The security threat of al-Qaeda is the blowback that NZ gets from supporting the US. NZ forces weren't providing aid to Afghanis, the were providing support to the people who where shooting them.

  6. It's rather simple. Politicians are easily led by officials, especially security and Police ones who say "if you don't do this, we might not stop a terrorism incident, which might kill people" and "of course you'll be to blame Minister" and "we'll have to release all of our papers under the OIA recommending you change the law to allow us to stop this sort happening".

    The image being that the power hungry security/police sector can easily frighten politicians, unless the have courage.

    Most National MPs have gut instincts that trust authority, Police and others in the military and law enforcement to be "good guys", and like most politicians once they are in power the forget that it is only temporary.

    No one told them that these powers might be used by a future government against them

  7. I am pleased Peter mentioned the spying by Obama on political opponents because it highlights one of the problems with this legislation.

    IRS officials when they were rumbled found themselves dragged before Congressional committees; evidence they gave was quite preposterous and outraged the politicians on that committee.

    The officials then stood back, like the cat who got the cream, and effectively said "ok you have to PROVE that I am lying" (which is virtually impossible, of course)

    When Mr Walkshorts and Cardigan nerdy social misfit at the GCSB decides he wants to get revenge on the 'cool kids' at school who bullied him without mercy (probably with enormous justification! haha!), and pops a warrant under the nose of the Prime Minister for signature - there is absolutely no way to stop him.

    It will be impossible to prove wrongdoing - and in any event which PM is going to say "Oh I am such a prize idiot I swallowed that one whole".

    Fast forward to a PM (Cunliffe, for instance) who is himself a nerdy social misfit with a desire for revenge against 1000001 imaginary slights - (you get the general idea)

    Terrorists have nothing to fear from this law (if I was going to blow up a plane or shopping centre I wouldn't be emailing people about it - if you know what I mean); school bullies - 8 year old children being a bit boisterous and knowing a wanker when they see one - have a lot to fear.

  8. @Ugly Truth, you claimed, "The security threat of al-Qaeda is the blowback that NZ gets from supporting the US."

    So the reason for the Bali bombing was... [hint: check your chronology]?

  9. Re the Bali bombing, conventional explosives don't strip concrete from reinforcing at 50+ feet. The energy signature for 9/11 (molten metal, ultrafine particulate matter) was a giveaway as well.



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