Kiwis Have No Right To Know If They Are Being Spied On - PM

Tuesday, 10 March 2015, 5:19 pm
Article: Alastair Thompson

On Monday morning (March 9th) NZ Prime Minister John Key was interviewed by Morning Report Host Guyon Espiner. Espiner was following up on remarks made by former GCSB Director Sir Bruce Ferguson on the show on Thursday 5th February. In his interview Sir Bruce Ferguson had confirmed that "mass collection" of data does take place in the Pacific.

Espiner wanted to know whether in the wake of Sir Bruce's remarks the PM would confirm or deny that mass collection of NZers personal information had been taking place in the Pacific as alleged in articles published by Glenn Greenwald's The Intercept and both major New Zealand newspaper publishers last week.

The reports were based on NSA documents leaked by NSA whistle-blower Edward Snowden. The New Zealand newspaper reports were written by Investigative Journalist Nicky Hager who has been researching the Five Eyes espionage alliance for two decades.

While the PM's responses did not greatly clarify the matter. Where was this moment of clarity.

GUYON ESPINER: OK, you’re talking about the law, then. Let me ask you this question: Do New Zealand citizens have the right to know whether their emails, text messages, phone calls, their personal data—do they have the right to know whether that is being gathered up by a state intelligence agency?

Advertisement - scroll to continue reading

JOHN KEY: Ummm, I think the answer to that is No, insomuch that…I’d have to go and check the law, but I’m pretty sure they’re not told that.

So there you have it. New Zealanders are not entitled to know whether they are being spied on or not.

The full transcript follows. You can listen to the audio in this player below.

GUYON ESPINER: Nicky Hager’s revelations late last week that the spy agency, the GCSB, monitors Pacific Island nations have sparked fears that New Zealanders’ communications are being indiscriminately caught in that net. It was revealed that the GCSB had adopted a so-called “full take collection policy” in the Pacific, passing on all information to the NSA in the United States. It’s feared that includes communications of New Zealanders visiting or living in the Pacific, as well as the communications of Pacific Island residents who have New Zealand citizenship by right. The Prime Minister, John Key, has in the past promised to resign if there was found to be mass surveillance of New Zealanders.

[file audio] JOHN KEY: Yes, but the facts of life are—it won’t happen.

GUYON ESPINER: Earlier, Mr Key was unable to give me an assurance that mass collection of communications from New Zealanders in the Pacific was not taking place.

JOHN KEY: No. I can’t. I mean, I read the transcript—I obviously didn’t hear the interview, but I read the transcript—and, yeah, look, there’s a variety of interpretations. I’m not going to critique…

GUYON ESPINER: OK. Well, I’m not asking you for a critique, so let’s listen to what Bruce Ferguson DID tell us on Friday.

[file audio] SIR BRUCE FERGUSON: The whole method of surveillance these days, it’s sort of a mass collection. To actually individualise that is Mission Impossible.

GUYON ESPINER: And he repeated that several times, using the analogy of a net which scooped up all the information and then, that which was not needed was discarded. I’m not asking for a critique, with respect. Can you confirm whether he is right or wrong?

JOHN KEY: Ah, well, I’m not gonna go and critique the guy, and I’m not gonna give a view of whether he’s right or wrong. What I am going to say is what we’ve always said, which is: The law is very clear when it comes to GCSB. So they have the capacity to collect information against a New Zealander but only under very, very limited conditions. And the question is: Are those conditions met? The legal advice I’ve had from GCSB and the assurances that I’ve had, those conditions ARE met.

GUYON ESPINER: So is there mass collection of personal data of New Zealand citizens in the Pacific, or not?

JOHN KEY: I’m just not going to comment on where we have particular targets except to say that where we go and collect information, there’s always a very good reason for that. And it’s not always…sometimes it’s obviously, you know, a threat of terrorism or whatever it might be.

GUYON ESPINER: OK. We can go…we can talk about the reasons a little bit later, but is Bruce Ferguson right or wrong?

JOHN KEY: I suppose the point to make here is…

GUYON ESPINER: No, no. The question is very simple, Prime Minister. We have the head of the agency at the time saying there WAS mass collection of personal data. I’m just asking you: Is he right or is he wrong?

JOHN KEY: I don’t even know what he means by that, so there’s no point in asking that question, because I can’t tell you what’s in Bruce Ferguson’s head and what he means by that. What I can tell you is what I know, and what I know is that there are a variety of reasons why we collect information. We have a variety of techniques of doing that. The law is very clear about what it allows us to do when it comes to New Zealanders, and all the advice I’ve had is we are 100 percent compliant with the law.

GUYON ESPINER: OK, you’re talking about the law, then. Let me ask you this question: Do New Zealand citizens have the right to know whether their emails, text messages, phone calls, their personal data—do they have the right to know whether that is being gathered up by a state intelligence agency?

JOHN KEY: Ummm, I think the answer to that is No, insomuch that…I’d have to go and check the law, but I’m pretty sure they’re not told that.

GUYON ESPINER: I’m asking you whether you think New Zealanders—New Zealand citizens—have the right to know whether their personal data is being gathered up by a state agency.

JOHN KEY: Well, as a general rule, the answer to that’s been No. I don’t think people go and get informed if that’s the case. But it depends on the circumstances. It’s like I said, If you go and have a look at the Act, what the Act actually says is that you can’t collect information against New Zealanders. Now, what it also says is there are limited conditions under which you can do that. There are some legal interpretations to allow you to collect SOME information. How that information is ever used or not used is spelt out in the Act.

GUYON ESPINER: OK, but you are not going to deny this morning that New Zealanders’ personal data is collected en masse in some circumstances?

JOHN KEY: I not going to agree with that. I’m just not agreeing or disagreeing. I don’t even have a clue what you mean by that term.

GUYON ESPINER: It’s pretty simple. They’re saying that the information is hovered up, ie…

JOHN KEY: No, no. You see, this is the problem. You know, when you get stolen information and then you put some random sort of definition that someone…

GUYON ESPINER: No, no. I’m talking about the former head of the GCSB, the man who was in power.

JOHN KEY: He actually said…

GUYON ESPINER: He did. He said there was mass collection…

JOHN KEY: No, he didn’t.

GUYON ESPINER: …of it, and he made the analogy of a net that scoops up everything and then you weed out what is not needed. He used that analogy several times.

JOHN KEY: He said “sort of mass,” and what does he mean by that? I mean, for instance, when GCSB for the most part acts—not always, but for the most part—when they act, they act under warrants of authority. The warrant of authority is for a particular reason. It might be for a…

GUYON ESPINER: Yes, but you’re drawing a distinction, aren’t you, between the surveillance and the mass collection. I’m asking—and, look, it’s pretty simple…

JOHN KEY: Actually, unfortunately, this is the problem: It ain’t that simple. What I can tell you is, you have a warrant; it’s for a particular reason. The particular reason could be—as Bruce Ferguson said on your show—a drug dealer. So they could collect information in relation to that drug dealer. And, as we know, it’s possible that a New Zealander could interact with that…

GUYON ESPINER: Yes, but you’re moving a step ahead of me. You’re moving a step ahead of me. I’m saying, from Bruce Ferguson’s interview and from the documentation that has been released, it is apparent that communications are scooped up en masse.

JOHN KEY: No, no. Look, I’m sorry…

GUYON ESPINER: So that’s wrong?

JOHN KEY: What I’m saying to you is, you don’t understand…

GUYON ESPINER: Why can’t you give us a straight answer on this?

JOHN KEY: Because you don’t understand the process.

GUYON ESPINER: Well, you do, so you tell us.

JOHN KEY: It’s not my job to tell you, because no… In the end, we have the law…

GUYON ESPINER: So you’re saying to New Zealanders that they don’t have a right to know whether their emails and personal communications have been scooped up.

JOHN KEY: It might be slightly more useful if I could give you an answer, but it’s entirely up to you. I don’t mind. Basically, if you go back to it, we have the law. OK. The law sets out really clear conditions. We have different techniques for gathering information, but they have to comply with the law. And under the law, information can’t be gathered against New Zealanders unless it’s—as the law says—incidental, or there are other particular reasons why. And, actually, there’s oversight of all that by the Independent Commissioner and…

GUYON ESPINER: OK, so—given that you understand the law very well—can you tell me whether this would be lawful or not: It would be lawful for the GCSB to gather, en masse, information about New Zealanders’ personal data in the Pacific, and pass it to the NSA?

JOHN KEY: I just don’t know what you mean, because, what does all that mean? En masse?

GUYON ESPINER: It means that they could hoover up the gmails, emails, text messages, personal communications of New Zealand citizens in the Pacific and pass it on to the NSA. Would that be lawful, or not?

JOHN KEY: You’d have to go all the way back to the warrant and see whether that was possible. If you’re talking about a whole country, well, I find that really, really difficult to believe you’d ever get a warrant for that. Warrants have a particular reason. This is the problem. You see, you get a whole bunch of sort of, basically, bush lawyers and people who have a particular agenda wanting to put out their particular phrases that actually don’t mean anything, which suit THEIR interpretation. There’s a particular warrant—for the most part—that supports, basically, what people do. And it’s not just good enough to…

GUYON ESPINER: So the GCSB can’t intercept or gather the communication of any New Zealand citizen, without a warrant?

JOHN KEY: There are certain technical conditions the GCSB can operate in without a warrant, but…

GUYON ESPINER: So why can’t you just tell us, with respect And I’m sorry to be so frustrated about this, but why can’t you just tell us whether the following is true or not: That the GCSB gather up New Zealanders’ communications in the Pacific and pass them to the NSA? Is that true or not?

JOHN KEY: Firstly, I’m never going to comment—ever—on where we collect information and where we don’t. I’m certainly happy to comment on…

GUYON ESPINER: But you do, though. On the 15th of September last year, you released several documents, declassified them, to suit your own political purposes. And why can’t you do that now?

JOHN KEY: Because they were patently wrong…

GUYON ESPINER: Are you telling me that this is patently wrong? Are you telling me it’s bush lawyer stuff…

JOHN KEY: It is.

GUYON ESPINER: OK. Give us some evidence that it’s wrong. That’s all I’m asking for.

JOHN KEY: Yeah, well, I’m just not gonna do that, because in the end, if you go back to the situation—and you see, this is the problem, isn’t it? The last time these guys got some stolen information, they went out there a week before an election campaign and they were deliberately trying to influence New Zealanders, and they were patently wrong. They’re making a whole lot of assumptions here, some of which—in my opinion—are wrong. But no, no, no intelligence agency that I’ve seen goes out there and talks about the targets. They don’t talk about the technique. We gather the information that’s legally able to do so, for a specific reason. They’re quite a small agency, GCSB. So, you know, they do assist the Police, they do assist defence. They give very good reasons for what they do. I think it’s really important to understand the motivations of Hager and Snowden and all these guys are opposed to intelligence agencies. They’re anti-American. They’re opposed to what these agencies do. It wouldn’t matter what I say, you’ll never satisfy them, and they’ll always have some random spin that , in my view, doesn’t reflect the fact that this country—through successive governments—has been well served by intelligence agencies that provide support in very specific and actually quite limited areas. They’re not big agencies, but they do good work where it’s required.

GUYON ESPINER: That is the Prime Minister, John Key.

ENDS

© Scoop Media

Alastair Thompson

Scoop Publisher

Alastair Thompson is the co-founder of Scoop. He is of Scottish and Irish extraction and from Wellington, New Zealand. Alastair has 24 years experience in the media, at the Dominion, National Business Review, North & South magazine, Straight Furrow newspaper and online since 1997. He is the winner of several journalism awards for business and investigative work.

Contact Alastair Thompson

• Linkedin
• Twitter - @althecat
• Facebook
• Email - alastair@scoop.co.nz