The liberal society and the GCSB spies

Governments normally try not to get offside with too many official bodies and lobby groups. It’s not good for electoral digestion.

So in June John Key flipped on Auckland transport (with some escape clauses). A senior minister explained it in one word: “voters”. If too many of Auckland’s many voters back the council against the government, that could be a problem.

Outside Auckland, however, local councillors seem fair game. Ministers make comments and promote legislation in effect depicting them as incompetent, wayward and fiscally irresponsible, manipulated by crafty, unaccountable executives. Ministers paint councils as a drag on the economy and compounding political nuisances such as overpriced houses.

But there is political risk. Councillors are on the ground. Many bristle at the putdowns, especially the bill taking the power to alter plans and issue house consents. This week at their conference they are reasserting their value (as they see it) with new branding, a campaign to tell citizens what they do and an efficiency drive.

The government is on safer ground attacking or ignoring unions. Union activists don’t vote National. So ministers have swatted away the Council of Trade Unions’ complaint that new legislation will breach International Labour Organisation conventions.

But was Key on safe ground whacking the Human Rights Commission (HRC) when it opposed the bill legalising the Government Communications Security Bureau’s (GCSB) spying on New Zealand citizens?

The HRC had company. The bill has also bothered the Privacy Commissioner and the Law Society — and the telecommunications companies. The Law Society’s members probably vote 80:20 for National. The commissions have been through appointment rounds which usually tilt their tone towards that of the government in power. Telecoms executives are not generally lefties and greenies (in Key’s vernacular, “fruit loops” and “devil-beasts”).

So criticism of the bill’s spying extension is not a Commie conspiracy nor the posturing of a rogue (viz, Kim Dotcom). The commissions and the Law Society stand guard over liberties. The bill crystallises an old argument: when does restricting liberty to defend liberty undermine it instead? A more constitutionally attuned cabinet would ponder that.

Key says the bill just regularises what has been going on to help the Security Intelligence Service, police and defence force. He needed to after Rebecca Kitteridge found a legal muddle.

Key and Ian Fletcher put weight on pre-intrusion warrants and post-intrusion monitoring. But is that enough? The High Court found unlawful the judge’s warrant to the police to raid Dotcom. That is a worry about warrants to the agencies the GCSB is helping. The bill says the GCSB’s direct warrants will come from the Prime Minister (or a stand-in minister) and a Commissioner of Security Warrants.

The United States National Security Agency (NSA) gets warrants, too, in secret, from a highly compliant warrant-issuing agency. Edward Snowden, whom the United States wants to put on trial (likely penalty: death) has exposed the NSA’s extensive reach, including spying on Europeans and their institutions (but not, according to the Economist, four “second-party” allies, including New Zealand.)

The NSA saga illustrates how the land of the free has become the land of the fearful. Now the United States risks becoming, among its friends, the land of the fearsome — another China, except more technologically advanced and protesting shared values.

The core debate over the Key bill is how far down the NSA track the GCSB may go. It is a question of liberty. There is no simple answer.

Stephen Franks, when an ACT MP, argued that a rough-tough law-and-order policy fitted ACT’s libertarian principles by ensuring the liberty of non-criminals. The post-9/11 United States version is that to protect liberty it must track citizens’ private communications: that is, to protect citizens’ liberty, their liberty must be compromised.

That is the Franks-Key argument: it’s for your own good.

The state spies are not alone. Private sector companies spy on you or mine “big data” to enable them or other firms to sell you more stuff.

Some governments are searching for ways to curb the private spies. In time there may be technologies that protect you as well as connect you. But such laws and technologies are some way off. For now you are fair game.

Still, last week there was a small indicator of a United States shift in attitude on state spying. Reports said some who backed the NSA in Congress are backing off.

Key looks set to get his extended spying law, after agreeing changes with Peter Dunne yesterday. He will now count on focus groups backing him against whatever the watchdog commissions and the Law Society might now say — and against Labour-Green demands for, and promise eventually of, a full review.

But will the Key bill enhance or curtail citizens’ liberty? Your call.