Privacy has been much in the news recently. Major public and private sector agencies (ACC; IRD; MSD; the banks) have been found wanting in how they have handled personal information, some of it sensitive, relating to identifiable individuals.
Appropriately, the Privacy Commissioner has recently described 2012 as ‘the year of the data breach’.
Media reporting of these recent major privacy breaches may give the impression that ‘privacy’ is just about personal information (eg, placing limitations on when agencies can disclose information they have collected about you). Despite its generic title, that’s what our Privacy Act 1993 is largely concerned with.
What’s meant by ‘privacy’? It depends who you talk to.
What ‘privacy’ is and what it isn’t has been the subject of an ongoing debate over the years among philosophers, lawyers and judges, and law commissions; to name a few.
While the ‘pointy-headed brigade’ may struggle to agree, ordinary Kiwis have less of a problem. Overwhelmingly, they are of the view that individuals should have a right to the privacy of their own bodies, their private space, the privacy of their communications and information relating to them; together with freedom from unwanted surveillance.
Surveys over the years have revealed that they place a high value on their privacy. Kiwis across the political spectrum expect that their rights to privacy will be both recognised and protected effectively. They want meaningful, accessible legal remedies when significant breaches of their privacy occur, not just window-dressing.
Our Law Commission has identified privacy as having ‘two main dimensions: informational privacy, and local or spatial privacy’.
Informational privacy ‘is concerned with control over access to personal information or facts about ourselves’. Local or spatial privacy, on the other hand, involves ‘control over access to our persons and private places, typically in the home but in other places as well…. A person’s home can be regarded as that person’s castle; the home is that person’s safest refuge … (Privacy: Concepts and Values (2008), para 5).
Kim Dotcom might beg to differ, at least until aspects of the multi-law enforcement agency ‘invasion’ of his ‘castle’ were found to be unlawful.
These days the term ‘privacy’ is widely used to refer to a group of related rights and interests that have been accepted nationally (eg, in our Privacy Act 1993), and internationally (eg, in the UN’s International Covenant on Civil and Political Rights 1966, which our government ratified way back in 1978).
So why is privacy so important? To be a truly free and democratic society there must be respect for the autonomy of individuals, and limits on the activities of both state and private agencies which may intrude on that autonomy. By its very nature this requires meaningful recognition of the dignity of individuals as members of a society. Privacy is a fundamental aspect of human dignity.
The reasonable expectation of privacy is said to be the touchstone of section 21 of our Bill of Rights Act 1990, which recognises the right to protection against unreasonable search and seizure. Certainly, that’s how our courts have interpreted what is, regrettably, the closest our Bill of Rights comes to explicitly recognising privacy considerations as such.
Other rights in our Bill of Rights recognise aspects of privacy, at best implicitly, for example, the right not to be subjected to medical or scientific experimentation (s10); the right to freedom of thought, conscience and religion (s13); and the right to freedom of association (s17).
Despite its fundamental importance, most of us accept that privacy is not an absolute entitlement. The maintenance of other highly important societal interests (eg, freedom of expression; the prevention and detection of crime and the catching of offenders), may justify some interferences with privacy.
However, the onus should be on those who wish to interfere with the privacy of individuals to justify doing so. The more invasive this is the more compelling must be the justification.
It should not be assumed that a desire for privacy means that a person has ‘something to hide’. People who wish to protect their privacy in a particular situation should not be required to justify their desire to do so.
Public or private sector proposals that have the potential to interfere significantly with privacy should be subject to a comprehensive privacy impact assessment, which is audited independently and made public, well in advance of the proposal being implemented.
Intrusions on individual privacy are a key area of concern. Public and private sector agencies should not intentionally or recklessly intrude, physically or otherwise, upon the solitude or seclusion of individuals or into their private affairs or concerns.
Law-abiding individuals should have the right to conduct their personal affairs free from unwanted surveillance or the fear of such surveillance. Even those privacy protections and legal limitations on surveillance that do exist at present are being progressively undermined. Meaningful forms of protection are therefore required as a matter of urgency if New Zealand is to avoid becoming an all-encompassing surveillance society.
This deeply-troubling prospect was reflected in the concerns of many submitters on the Search and Surveillance Bill (now an Act). Those within the corridors of power who dismissed their concerns as ‘hysterical’ or ‘misinformed’, grossly under-estimated the degree of public apprehension at the prospect of yet more surveillance of individuals’ daily lives.
Of course, there will be those who seek to utilize privacy laws for reasons contrary to the public interest, for example, so-called ‘celebrities’ with deep pockets who wish to limit justifiable media exposure of their ‘dodgy’ behaviour. When this occurs, the media (old/new) and human rights advocates need to stand together to ensure that the public’s right to know prevails. The latter need no convincing that freedom of expression is indeed one of our cherished bedrock freedoms.
Auckland Human Rights Lawyer
10 December 2012 (International Human Rights Day)
(Published in the NZ Herald’s ‘Dialogue’ section
19 December 2012)
The New Zealand military received help from US spy agencies to monitor the phone calls of Kiwi journalist Jon Stephenson and his associates while he was in Afghanistan reporting on the war.
Stephenson has described the revelation as a serious violation of his privacy, and the intrusion into New Zealand media freedom has been slammed as an abuse of human rights.
The spying came at a time when the New Zealand Defence Force was unhappy at Stephenson’s reporting of its handling of Afghan prisoners and was trying to find out who was giving him confidential information.
The monitoring occurred in the second half of last year when Stephenson was working as Kabul correspondent for the US McClatchy news service and for various New Zealand news organisations.
The Sunday Star-Times has learned that New Zealand Defence Force personnel had copies of intercepted phone “metadata” for Stephenson, the type of intelligence publicised by US intelligence whistleblower Edward Snowden. The intelligence reports showed who Stephenson had phoned and then who those people had phoned, creating what the sources called a “tree” of the journalist’s associates.
New Zealand SAS troops in Kabul had access to the reports and were using them in active investigations into Stephenson.
The sources believed the phone monitoring was being done to try to identify Stephenson’s journalistic contacts and sources. They drew a picture of a metadata tree the Defence Force had obtained, which included Stephenson and named contacts in the Afghan government and military.
The sources who described the monitoring of Stephenson’s phone calls in Afghanistan said that the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.
And since early in the Afghanistan war, the GCSB has secretly posted staff to the main US intelligence centre at Bagram, north of Kabul. They work in a special “signals intelligence” unit that co-ordinates electronic surveillance to assist military targeting. It is likely to be this organisation that monitored Stephenson.
Stephenson and the Defence Force clashed in the Wellington High Court two weeks ago after it claimed Stephonson had invented a story about visiting an Afghan base.
The Human Rights Foundation says Defence Force involvement in monitoring a journalist is an abuse of fundamental human rights.
“Don’t they understand the vital importance of freedom of the press?” spokesman Tim McBride said. “Independent journalism is especially important in a controversial war zone where the public has a right to know what really happens and not just get military public relations,” he said.
The news has emerged as the Government prepares to pass legislation which will allow the Defence Force to use the GCSB to spy on New Zealanders.
The Stephenson surveillance suggests the Defence Force may be seeking the GCSB assistance, in part, for investigating leaks and whistleblowers.
Stephenson said monitoring a journalist’s communications could also threaten the safety of their sources “by enabling security authorities to track down and intimidate people disclosing information to that journalist”.
He said there was “a world of difference between investigating a genuine security threat and monitoring a journalist because his reporting is inconvenient or embarrassing to politicians and defence officials”.
The Star-Times asked Chief of Defence Force Rhys Jones and Defence Minister Jonathan Coleman if they were aware of the surveillance of Stephenson, if they approved of it and whether they authorised the investigation of Stephenson (including the phone monitoring).
They were also asked if they thought journalists should be classified as threats. Neither answered the questions.
Defence Force spokesman Geoff Davies said: “As your request relates to a legal matter involving Jon Stephenson which is still before the court, it would not be appropriate for the Chief of Defence Force to comment.”
In fact, none of the issues before that court relate to the surveillance or security manual.
Coleman’s press secretary said the minister was not available for comment and to try again next week.
Green Party co-leader Russel Norman said the monitoring of Stephenson demonstrates that the security services see the media and journalists as a legitimate target.
“Democracy totally relies on a free and independent press,” he said. “Current attempts to strengthen the security apparatus for monitoring New Zealanders is deeply disturbing and menacing for democracy.”
An internal Defence document leaked to the Star-Times reveals that defence security staff viewed investigative journalists as “hostile” threats requiring “counteraction”. The classified security manual lists security threats, including “certain investigative journalists” who may attempt to obtain “politically sensitive information”.
The manual says Chief of Defence Force approval is required before any NZDF participation in “counter intelligence activity” is undertaken. (See separate story)
Stephenson took defamation action against the Defence Force after Jones claimed that Stephenson had invented a story about visiting an Afghan base as part of an article about mishandling of prisoners.
Although the case ended with a hung jury two weeks ago, Jones conceded during the hearing that he now accepted Stephenson had visited the base and interviewed its Afghan commander.
Victoria University lecturer in media studies Peter Thompson said the Afghanistan monitoring and the security manual’s view of investigative journalists confirmed the concerns raised in the High Court case.
There was “a concerted and deliberate effort to denigrate that journalist’s reputation for political ends”.
There is currently controversy in the United States over government monitoring of journalists. In May the Associated Press reported that the Justice Department had secretly obtained two months’ worth of phone records of its reporters and editors.
The media organisation said it was a “massive and unprecedented intrusion” into its news gathering process.
PROBING JOURNALISTS DEEMED THREAT
A leaked New Zealand Defence Force security manual reveals it sees three main “subversion” threats it needs to protect itself against: foreign intelligence services, organisations with extreme ideologies and “certain investigative journalists”.
In the minds of the defence chiefs, probing journalists apparently belong on the same list as the KGB and al Qaeda.
The manual’s first chapter is called “Basic Principles of Defence Security”. It says a key part of protecting classified information is investigating the “capabilities and intentions of hostile organisations and individuals” and taking counteraction against them.
The manual, which was issued as an order by the Chief of Defence Force, places journalists among the hostile individuals. It defines “The Threat” as espionage, sabotage, subversion and terrorism, and includes investigative journalists under the heading “subversion”.
Subversion, it says, is action designed to “weaken the military, economic or political strength of a nation by undermining the morale, loyalty or reliability of its citizens.”
It highlights people acquiring classified information to “bring the Government into disrepute”.
This threat came from hostile intelligence services and extreme organisations, and “there is also a threat from certain investigative journalists who may seek to acquire and exploit official information for similar reasons”, it says.
Viewing journalism as a security threat has serious implications. The manual states that “plans to counter the activities of hostile intelligence services and subversive organisations and individuals must be based on accurate and timely intelligence concerning the identity, capabilities and intentions of the hostile elements”.
It says “one means of obtaining security intelligence is the investigation of breaches of security”.
This is where the security manual may be relevant to the monitoring of Jon Stephenson’s phone calls. The Defence Force was unhappy at Stephenson’s access to confidential information about prisoner handling in Afghanistan and began investigating to discover his sources.
The manual continues that “counter intelligence” means “activities which are concerned with identifying and counteracting the threat to security”, including by individuals engaged in “subversion”.
It notes: “The New Zealand Security Intelligence Service is the only organisation sanctioned to conduct Counter Intelligence activities in New Zealand. [Chief of Defence Force] approval is required before any NZDF participation in any CI activity is undertaken.”
Under the NZSIS Act, subversion is a legal justification for surveillance of an individual.
The sources who described the monitoring of Stephenson’s phone calls in Afghanistan said the NZSIS has an officer based in Kabul who was known to be involved in the Stephenson investigations.
To reinforce its concern, the defence security manual raises investigative journalists a second time under a category called “non-traditional threats”. The threat of investigative journalists, it says, is that they may attempt to obtain “politically sensitive information”.
Politically sensitive information, such as the kind of stories that Stephenson was writing, is however about politics and political accountability, not security. Metro magazine editor Simon Wilson, who has published a number of Jon Stephenson’s prisoner stories, said the Defence Force seemed to see Stephenson as the “enemy”, as a threat to the Defence Force.
“But that’s not how Jon works and how journalism works,” he said. “Jon is just going about his business as a journalist.”
The New Zealand Defence Force “seems to be confusing national security with its own desire not to be embarrassed by disclosures that reveal it has broken the rules”, he said.
5:30 AM Friday Jul 19, 2013
Impudence. Sheer impudence. When the namby-pamby do-gooders at the Human Rights Commission expressed misgivings about the new GCSB bill and its sidekick the telecommunications interception bill, John Key showed them who was boss.
He slapped them down like a sandfly.
They said the proposed bills were “wide-reaching without sufficient safeguards against abuse of power”. They said there was “inadequate oversight and inadequate provision for ensuring transparency and accountability”. They droned on about threats to things like “public trust” in light of the global mass surveillance revelations. Time for “a full and independent inquiry into New Zealand’s intelligence services”, they shrieked.
Mr Key rolled his eyes. The commission had failed to file a submission on the bill in time, he scoffed, untroubled by the fact that they were exercising their statutory capacity to report directly to the Prime Minister.
“They need to pull their socks up,” he said, fanning the chequebook like a deck of cards. “If they’re going to continue to be a government-funded organisation they should meet the deadlines like everyone else did.”
Devastating. With the wit and charm of Queenie from Blackadder, the argument was extinguished. Who’s prime minister?
When you look at things like this, all the detractors serried against the legislation can be swept away as swiftly as a Britomart beggar.
Take the privacy commissioner. She may emphasise that the new GCSB powers should be “demonstrably necessary and justified”. She may argue for a postponement of the whole process, and that “a body such as the Law Commission should be asked to investigate the most appropriate shape of legislation to govern the intelligence agencies”.
But, as with the bleeding-heart human rights bludgers, this argument is easy to demolish. Starting with “Privacy Commission”: what kind of a name is that? “Privacy?” Sounds suspiciously like they’ve got something to hide.
And the Law Commission now? How many of these things are there? If you’re not careful, we’ll merge them all into one great big Commission Commission, with Susan Devoy the one commissioner to rule them all.
Then there’s the Law Society. The bore society, more like. In a tediously detailed submission they say they’re concerned that “in the absence of compelling grounds for urgency, its use degrades the democratic quality of the legislative process”. They bemoan the lack of a “full and informed debate” and “proper analysis” on the need for “the intrusion represented by these reforms”.
They warn that making the GCSB a contractor to domestic agencies risks in turn lending them “the imprimatur and secrecy and immunity protections of the GCSB Act”. Lawyers are such nit-pickers. Compliance with the Bill of Rights? Snore. Cheer up, already!
The former director of the GCSB, Sir Bruce Ferguson, is another who has said the legislation should not be going through under urgency. Fine. But, look at it this way. How can you take seriously the views of man whose name is an anagram of “GCSB urine furores”?
What about the Legislative Advisory Committee, appointed by the Minister of Justice and tasked with advising on good legislative practice, public law and all that? They reckon the bill lacks clarity and could do with providing greater safeguards and oversight. But they would say that. Also, guys, think for just a second: who’s prime minister?
Internet NZ, meanwhile, witter on about the absence of provision for “meaningful, adequate, independent oversight”, as well as the “lack of sufficient checks and balances”, and something about “offending the principle of the rule of law”. But you know what these internet people are like. Hackers, pretty much. Or, worse, bloggers.
Along with Tech Liberty and a bunch of other people working in the IT sector, they’ve also been banging on about metadata: about the failure to define this rapidly swelling and information-rich stuff, and the potential for its indiscriminate collection.
However, what none of these so-called experts has managed to explain is how they’d feel if their attitudes paved the way for the systematic extermination of all the world’s kittens by masked terrorist gangs. All of the kittens, dead.
Taken together, the detractors’ arguments could be seen to lay bare legislation that is slipshod, unfit for purpose, a bill attempting to clarify the law by way of a mudbath. They could be regarded as exposing numerous shortcomings, incoherence and nil justification for urgency.
But, come on, when you think about it, why would you take seriously the independent watchdogs for privacy, for human rights, former agency directors, internet experts, the national regulator of the legal profession and concerned members of the public, especially when backed by a bevy of devil-beasts and knuckleheads?
It may very well be the case that just one out of the 124 submissions to the intelligence and security commission gives the proposed GCSB legislation the thumbs up (as an “interim measure” pending a wider overhaul of intelligence structures).
But like everything, it depends how you look at the statistics. The fact is, 100 per cent of the submissions in favour of the bill support the changes. And, anyway, how about that royal baby?
By Audrey Young
Privacy Commissioner Marie Shroff is calling for a delay in the passage of the GCSB legislation.
She wants more time to be given to considering oversight.
While she has no mandate to comment on the collection and use of data by intelligence agencies, she has raised questions about it in a submission on the proposed law.
“Effective oversight is required to ensure that it is collected and used appropriately, not as the tool of mass surveillance that it has the capacity to be, if unchecked.”
She referred to leaks by former United States National Security Agency contractor Edward Snowden about the widespread collection of data and British intelligence spying on G20 delegates.
Fallout from those revelations would not be answered for some time.
“There is, therefore, good reason to postpone consideration of this bill at least for a short time, to enable us to develop a clearer perspective on what powers New Zealand intelligence agencies should have to perform their functions.”
The Government Communications Security Bureau and Related Legislation Amendment Bill expands the legal powers of New Zealand’s foreign intelligence agency to spy on New Zealanders and prevent cyber threats to important private sector infrastructure as well as government communications.
The Human Rights Commission has given the Prime Minister a report setting out its concerns about the bill.
It said that citizens were entitled to know if mass surveillance of data relating to them was being collected by New Zealand’s intelligence agencies or its international intelligence partners and for what purpose.
Ms Shroff’s criticisms were made in a submission to the intelligence and security committee considering the bill.
She acknowledges that the bill aims to extend the oversight of the Inspector-General of Intelligence and Security but says that would be dependent on resourcing.
“Failure to resource the IGIS properly would result in a failure of the principal oversight mechanism that this bill creates.”
But she also said it was not clear whether the oversight model was the best for modern intelligence agencies and it would be worth considering other models in more detail.
The bill allows for the Inspector-General to have a deputy.
Prime Minister John Key has also accepted a proposed panel of two people, who the Inspector-General would use as a sounding board.
Ms Shroff said an example of personal information that could raise serious concerns was metadata in the form of telecommunications traffic information.
“Metadata is not necessarily innocuous,” said Ms Shroff. “It can provide a detailed map of a person’s life – such as tracking their location, contacts and interests. That is why it is valuable in the intelligence area.”