New Zealand Parliament Overwhelmingly Decides Free Speech Must Take A Backseat To Cyberbullying Concerns

from the being-mean-but-with-technology?-that's-a-jailing dept

New Zealand is the latest country to "do something" about online trolling. A rather comprehensive anti-cyberbullying act passed its third reading in the Parliament by a significant margin (116-5) and is awaiting royal assent. The "Harmful Digital Communications Act" criminalizes plenty of speech, mainly through the use of broad wording.

Principle 1
A digital communication should not disclose sensitive personal facts about an individual.

Principle 2
A digital communication should not be threatening, intimidating, or menacing.

Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4
A digital communication should not be indecent or obscene.

Principle 5
A digital communication should not be used to harass an individual.

Principle 6
A digital communication should not make a false allegation.

Principle 7
A digital communication should not contain a matter that is published in breach of confidence.

Principle 8
A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9
A digital communication should not incite or encourage an individual to commit suicide.

Principle 10
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Violating these principles could result in a two-year prison sentence. Encouraging someone to take their own life could result in an additional year in prison, even if no suicide attempt is made.

A quick glance at the principles reveals several flaws. First off, journalists are going to have a hard time avoiding disclosing "sensitive facts about an individual." While the courts are obliged to weigh the public interest during enforcement of this act, it sets a very low bar for those who wish to file complaints. And while deliberating this aspect, courts may issue interim orders to take down "offending" material until the matter is resolved.

That's just one aspect that chills speech. Lowering the bar for "harm" to "serious emotional distress" is another. The wording hints at objectivity with "reasonable person" but also asks the "reasonable person" to act as an empathetic proxy for the person filing the complaint.

Principle 10 fortunately limits itself to targeted individuals, rather than criminalizing the denigration of entire groups. Ignorance shouldn't be criminalized. There's far too much of it in the world, but putting people in jail for being racist, sexist or bashing their least-favorite religion does nothing to change the minds of those involved and will needlessly harm the lives of people who are far more stupid than dangerous.

On top of this, the new law would add additional responsibilities for social media platforms and site owners. They are invited to apply for New Zealand-specific "safe harbors," but these only provide them temporary immunity from prosecution. Once the court order arrives, platform/site owners are obliged to remove the offending post(s). Failure to do so puts the site owners in line for $50,000 fines and/or prison terms. So, it's not really a "safe harbor." All it does is prevent the person filing the complaint from going after the platform/site first, rather than the person actually posting the offending content.

The arguments for the passage of the bill were the expected ones. Legislator Jacqui Dean admitted there were concerns about the new law -- especially considering there were plenty of laws on the books already to deal with a majority of the offenses (defamation, harassment, etc.), but still felt more was needed because children.

There have been many thoughtful contributions on this Harmful Digital Communications Bill. I do acknowledge that it is a legislative response that some view as impinging on freedom of speech and perhaps might be too heavy-handed. What I would say is that the protection of our young people in particular—their protection from cyber-bullying—is so very important that I think this bill is a very good step, and I commend it to the House.

This argument -- from Deputy Leader Tracey Martin -- is particularly horrifying, especially considering her earlier statement that the internet's mutating "threats" are the reason new legislation is needed. Martin thinks there should be a clear delineation between those who receive the "public interest" exemption and those who don't, despite her previous acknowledgment that the entire situation remains in a constant state of flux.

Ms Ardern addressed the question of whether—there was conversation at the select committee—bloggers were really “media”. I would make this statement: media can certainly be bloggers; bloggers cannot, and should not, ever be considered as media. The media has actually taken training. They have criteria. They have boundaries that they work inside of, and they can be held accountable inside of them. Anybody who wants to set up a blog and just vent their opinion should not be considered media. So with regard to that, I would hope—and I know it was pushed by certain members of the blogging society at the select committee—that the line maintained by media, true media, is maintained.

Some of the worst arguments appeared outside of the legislation. This editorial, written by Minister of Justice, Amy Adams, hits all the speech tropes in three sentences.

It's worth remembering that no right or freedom is absolute. Just as you can't scream fire in a crowded theatre, nor should you be allowed to threaten someone online, incite people to kill themselves on social media, or share revenge porn with the world, and claim that as your democratic right. Our rights can, and should be, subject to reasonable limits where demonstrably justified in a free and democratic society.

The only mitigating factor in Adam's "free speech is more about what's not allowed" argument is that her view comes from the viewpoint of a New Zealander, rather than someone deliberately misreading the First Amendment.

One of the few to vote against the bill (and against his own party) was Gareth Hughes, who made several good points during his address, starting with the bill's creation of two sets of laws that treat online and offline very differently.

In my time here I have seen some very badly drafted tech legislation. We have seen the Telecommunications (Interception Capability and Security) Act and the Copyright (Infringing File Sharing) Amendment Act, or the “Skynet Act”, where badly conceived law came together with under-informed legislators, all with the best of interests, to pass terrible laws. So, for the first time in my parliamentary career, today I am casting a separate vote from my party, because I believe this law, this bill, is the wrong solution to the right question, which is “What do we do about cyber-bullying?”. Ultimately, this bill is overly broad, it risks limiting our freedom of expression and the important role of the media in our democracy, and it introduces a precedent that one thing can be legal offline but illegal online… I believe there are better ways to go about reducing cyber-bullying, such as the approved agency and funding education, without making a new criminal offence just for the digital world.

[...]

As Tim Watkin has pointed out, this law applies not just to bloggers but to journalists as well. He points to the ludicrous situation that a public interest story of, say, the corrupt MP, as we have given the example of before, who is subject to harm by the story, would be perfectly legal if it were published in a newspaper but punishable if posted on that media organisation’s website or transmitted electronically.

David Seymour (Leader - ACT) noted the bill's "do something" origin and its overall awfulness.

This bill is a case study in bad lawmaking. All of the elements of bad lawmaking exist in this bill. Not since we microchipped dogs in the hope that it would prevent a particularly egregious dog event has there has been such a bad law before this House. First, you had the high-profile and really quite disgraceful event. Then you had the discovery that in actual fact the laws in place had not been properly used by the agency in place to prevent the harms that occurred there. Then you had the knee-jerk reaction from the politicians, who said: “We must do something. This bill is indeed something; therefore, we will pass this bill, and it must be the right thing to do.”

[...]

What exactly does this bill do? Well, the first thing that it does is introduce a set of communications principles that might be appropriate if we were about to embark on a school camp, but which are not appropriate for the governance of 4.5 million people, many of whom are adults—and the children among them are the responsibility of adults. It says that you cannot offend somebody. So, for instance, would Flight of the Conchords’ song Albi the Racist Dragon be offensive if it was communicated online? Well, we are told, in defence of the “badly burnt Albanian boy” from last week, that of course this law would never be used in such a silly and un-sensible way. That is the problem with the law: it gives no protection. We are supposed to rely on the beneficence of the enforcers. That is bad lawmaking.

Seymour also pointed out the "government knows best" condescension being displayed toward opponents of the broadly-worded bill.

The pace of development on the internet is so rapid that, in actual fact, the incentive for the hosts of content is to give good experiences. If it is true that harm is being done, then the one person who has both the incentive and the means to rapidly mitigate that harm is the host, whether that be Facebook, or Ask.fm, or Twitter, or whoever else hosts the website. For the same reason that harmful digital communication becomes exponentially greater, those people have the tools to mitigate it. But you do not hear that from the Government or from the supporters of this bill. There is a moralising tone from them: if you have nothing to hide, then you have nothing to fear; that these vague principles will not be enforced for silly reasons, you understand; that as long as you are sensible and you are doing nothing wrong, it will not be used against you.

This mentality is fully on display in the Minister of Justice's op-ed:

Some commentators claim the bill's measures erode freedom of expression and prevent genuine media reporting. These fears are unfounded and I'm confident the bill has struck the right balance between preventing real harm and preserving valuable free speech.

Critics have hysterically claimed it will muzzle journalists from pursuing stories and restrict cartoonists from publishing satire.

This is simply untrue.

In defense of her claims, the Minister points at the bill's intentions.

The bill aims to stop and prevent the circulation of online abuse, not curtail people's freedoms of expression or suppress the media.

As if broadly-written laws have never resulted in unintended consequences and mission creep. According to Adams, the government is a good steward of citizens' rights and never acts out of malice, self-interest or pure stupidity. The government can be trusted to fight for citizens rather than allow the powerful to abuse a bad law for their own ends. Really. Trust us. This time we mean it.

Filed Under: cyberbullying, free speech, new zealand, trolling

Leak Of TPP Health Annex Shows New Zealand's Beloved Pharmac System Under Direct Attack

from the do-as-I-say,-not-as-I-do dept

After a rather quiet period, WikiLeaks seems to be back on form. After the big TISA leak last week, it's released the Healthcare Annex to the Transparency Chapter of TPP. The document itself is short (pdf), and fairly opaque, so WikiLeaks has helpfully provided some expert commentary from Deborah Gleeson (pdf) and Jane Kelsey (pdf), both well-known academics in this field. Here's a key part of Gleeson's summary:

The inclusion of the Healthcare Transparency Annex in the TPP serves no useful public interest purpose. It sets a terrible precedent for using regional trade deals to tamper with other countries' health systems and could circumscribe the options available to developing countries seeking to introduce pharmaceutical coverage programs in future.

The Annex is clearly intended to target New Zealand’s Pharmaceutical Management Agency (PHARMAC) and some of its provisions will result in new obligations for PHARMAC that will involve transaction costs and could impinge on its flexibility and autonomy. This is particularly worrying given that PHARMAC provides a model pharmaceutical coverage program that is suitable for adoption by developing countries.

Pharmac is New Zealand's system for buying medicines in bulk, which results in substantial savings for the country -- around $3.5 billion since 2000. US drug companies hate it for two reasons: it is able to negotiate lower prices in New Zealand by consolidating purchases for the whole country; and it represents a dangerously successful model that other countries might adopt. The latest leak is important because it confirms that Big Pharma is using TPP not only to strengthen drug patents, but also to attack Pharmac directly.

It has long been a fear that TPP would seek to undermine it, something that the New Zealand government has strenuously denied. The latest clear evidence that Pharmac is indeed under threat has forced the country's prime minister, John Key, to respond, reported here by the New Zealand Herald:

Prime Minister John Key has promised that New Zealanders will continue to pay no more than $5 [US$3] for subsidised prescriptions, whatever happens to Pharmac under the Trans Pacific Partnership.

Jane Kelsey is quoted in the new story as noting that there were only four possibilities:

the Government could increase the health budget overall; the health budget could remain the same but more funding go from non-Pharmac costs to Pharmac; the price the public paid for prescriptions could rise -- which Mr Key ruled out today; and the fourth was that fewer medicines were bought by Pharmac.

Any of the other options means higher taxes in New Zealand or cuts somewhere else to pay for the more expensive drugs TPP is almost certain to bring. That fact has led to a spate of articles in the New Zealand press, and a wider awareness about the negative consequences of the hitherto obscure TPP, albeit rather late in the day.

As a side note, it's worth noting one other interesting aspect, pointed out by Kelsey in her detailed analysis of the latest leak:

The Annex applies very specifically to a 'national health care program' that makes recommendations/decisions about listing pharmaceutical products or medical devices for reimbursement, or the sum of that reimbursement, where these programmes are run by a 'national health care authority'.

The Annex does not apply to direct government procurement of pharmaceuticals and medical devices.

'National' is presumably chosen to preclude such programmes that are run by states and provinces, which are politically sensitive in the US and Canada. In effect, the US has excluded almost all its own programmes, while targeting New Zealand

Clever, no?

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: drug pricing, health annex, new zealand, pharmac, pharmaceuticals, tpp

New Zealand Steps In To Block US Gov't From Stealing All Of Kim Dotcom's Stuff

from the that's-not-how-the-law-works-there dept

Back in March, we explained the ridiculous process by which the US government was able to steal millions of dollars from Kim Dotcom. If you want the details, go read that post, but the shorter version is that entirely separate from the various lawsuits involving Dotcom, the US government filed a separate lawsuit against all of Kim Dotcom's stuff (literally). Using the highly questionable process of civil asset forfeiture, the government is able to declare the stuff guilty of a crime, and thus making it ripe for the government to just take and keep. There are, of course, all sorts of questionable things about civil asset forfeiture, but it got even more bizarre in this case. That's because, after Dotcom's lawyers sought to intervene (which is how you block this kind of theft), the government had Dotcom declared a "fugitive" even though they know exactly where he is and he hasn't "run" from anything. Then, as a "fugitive," it was deemed that he did not actually intervene, and thus, the government was granted a "default judgment" (what you usually get when someone doesn't respond at all to a case).

Any judicial system that actually believed in due process would at least wait until the rest of the legal issues played out, including Dotcom's extradition and, if he is extradited, his trial over the criminal charges against him. If he loses all of that, then it seems reasonable to seek to forfeit his assets. But without a trial and conviction, it seems ridiculous to even go through the forfeiture process. And to basically force him to lose by declaring him a "fugitive" is just spitting in the face of due process.

At the end of that last post, however, we noted that the situation wasn't final. Since most of the assets were in New Zealand and Hong Kong, it was possible that he could get those countries to block the US from just taking those assets. And, that's exactly what's happened. A New Zealand court has ruled in Dotcom's favor [pdf], blocking the US from taking his stuff. The key issue: New Zealand takes a very different approach to these issues and (quite reasonably) finds the US process absurd. It starts out by pointing out that the whole "fugitive" designation is ridiculous, and that under New Zealand law, someone in the same situation would not be declared a fugitive:

While I accept that s 57 would permit the court to make a forfeiture order in the absence of a respondent, it does not expressly authorise the court to proceed on an ex parte basis or to decline to receive submissions made on behalf of an absent respondent who wished to be heard

The court also notes that just because Dotcom is fighting extradition in a New Zealand court it does not mean that he is "not amenable to justice" as is required for such a forfeiture of assets.

Further, the court recognizes the due process issue inherent in taking away all of the money from a defendant seeking to defend himself in court:

The application of the fugitive disentitlement doctrine to a person who is exercising a bi-laterally recognised right to defend an eligibility hearing, with the result that he is deprived of the financial means to mount that defence, is to put that person on the horns of a most uncomfortable and (the plaintiffs would say) unconstitutional dilemma.

And thus, after a lengthy discussion delving into many of the details about this, the judge concludes that she will not, in fact, allow the US government to take Dotcom's stuff, because doing so would be a huge burden on someone trying to defend themselves:

It is, I think, self evident from the above discussion that the plaintiffs have a substantial position to preserve and there will be very real consequences if it is not protected, pending final determination of the claim for review. If the provisional view I have formed about the unavailability of post-registration relief is correct, authorising the registration application to proceed now might deprive the plaintiffs of any ability to defend the extradition or to pursue their appeals against the forfeiture order in the United States.

I have little hesitation in concluding that interim relief should therefore be granted. Accordingly there will be a declaration that the Commissioner of Police is to take no further action that is consequent upon the decision by the Deputy Solicitor-General (Criminal) to authorise him to apply to register the foreign forfeiture orders made by Judge O’Grady in the District Court in Virginia on 27 March 2015 until further order of this Court.

This is far from over, as the New Zealand government is likely to appeal as well, but this whole process continues to be a fascinating power play by the US government -- with it repeatedly assuming that everyone will just follow what it wants. And, so far, the New Zealand courts have been ready to push back on the more extreme requests like this one.

Filed Under: asset forfeiture, default judgment, doj, fugitive, kim dotcom, new zealand, us

Big Media Companies Insist That VPN Services Violate Copyright Law

from the fighting-the-tide dept

Back during the SOPA fight, in a discussion with someone who was working with the politicians pushing SOPA, I pointed out that such a law would encourage much more encryption -- and the response was "that's no problem, because we'll just ban encryption next." As stupid and impossible as such a statement is, it shows the mindset of some copyright extremists. Thus, it should be no surprise that they're actually starting down just such a path in New Zealand. As we noted last year, Kiwi ISPs, frustrated that their users kept running up against geoblocks, have started offering VPN services that get around geoblocks as a standard feature there. Basically, this is nothing more than a recognition that the internet really is global and attempts to pretend otherwise are pretty fruitless.

However, the big media companies are not happy about this turn of events. A week or so ago, a bunch of them (Lightbox, MediaWorks, SKY, and TVNZ) teamed up to threaten New Zealand ISPs that if they didn't stop offering "global mode" VPN services to customers, that the media companies would sue -- arguing that merely offering such a service was copyright infringement. The letter is full of the usual bluster:

“Offshore providers, such as Netflix US, Hulu, Amazon Prime and BBC iplayer do not have the right to exploit the copyright works in New Zealand,” the letter says. Licenses they hold apply only to specific overseas locations and prohibit customers from circumventing geo-blocking measures and other content protections.

That may be true, but whether or not those companies are operating in New Zealand is not an issue that is of concern to the ISPs, who are providing internet access to the entire internet. If Netflix US, Hulu, Amazon and the BBC were the ones sneaking around the geoblocks, the companies might have a point. But arguing that merely offering a VPN service to users somehow violates the law seems like a crazy interpretation of copyright laws.

But, of course, crazy interpretations of copyright laws are the norm these days, and there are always some lawyers who will insist the media companies have a case, such as the lawyer quoted in that article. The basic argument seems to be a variation on felony interference of a business model:

The four are claiming that Global Mode, offered by Slingshot and Orcon, and similar services offered by other providers, are ‘unlawful’ for several reasons.

Top of the list is infringement of the Copyright Act 1994, ‘either directly or as a joint tortfeasor’.

The four are also claiming the services are unlawful in providing ‘misleading representations’ in stating or implying ‘without a proper basis’ that it is lawful for New Zealand based users of the services to access content from the offshore providers, and that ‘circumvention of geo-blocking measures in this way is permitted by New Zealand law (just like parallel importing of DVDs)’.

The four are also claiming that use of the services constitutes a clear breach of the terms and conditions of the offshore providers – being the likes of Netflix, Hulu and Hulu Plus, Amazon Prime and BBC iPlayer.

From a loose reading of this it seems like they're really arguing three things: (1) that offering such a service is a form of "inducement" to infringement, (2) that this is a form of circumvention of restrictions, which violates anti-circumvention clauses and (3) that this violates the terms of those video services.

The third argument is meaningless since that's an issue between those services and the ISPs, not the media companies and the ISPs. The first one seems like a stretch but probably depends on a few factors, including how the services are marketed and whether or not merely viewing geoblocked content is a form of direct infringement (which seems like a stretch to me). The circumvention issue also seems like a stretch, but may depend on the specifics of New Zealand's Copyright Act, which I'm not as familiar with. You can read it here though to see which sections might apply.

Either way, with the threat looming, at least one ISP has caved, saying it's not worth the fight:

Unlimited Internet director Ben Simpson says that while his company doesn’t necessarily agree with that assertion, it has taken down the service nonetheless.

“Geo-unblocking services are a direct result of consumer demand for access to content that is not made available to the New Zealand market,” Simpson says.

“To be on the safe side, we have taken legal advice on this matter and I have made a firm call that we will sit on the sideline until a legal precedent has been set.”

Of course, whether or not offering such a service technically violates copyright law is kind of besides the point, as the very idea that offering such a service should be against the law is crazy. Such services provide real value to consumers not just in getting around pointless geoblocks, but also in protecting privacy. Trying to outlaw VPN services like that just to protect obsolete business models of media companies pretending the world is not global these days, just seems like yelling at the tide. But, given that it's big old media companies we're dealing with, they still haven't figured out that going with the tide is much easier than ordering it not to come in...

Filed Under: circumvention, copyright, geoblocking, global mode, global service, inducement, new zealand, vpns
Companies: lightbox, mediaworks, orcon, sky, slingshot, tvnz, unlimited internet

US Pressured Japan, Canada, New Zealand And Others Into Extending Copyright

from the total-failure dept

We noted that this was likely about a month ago, but IP-Watch is confirming that the USTR has bullied Japan, Canada, New Zealand and three other countries into agreeing that copyright terms must be life plus 70 years in the latest draft of the TPP agreement. This makes absolutely no sense, in part because even the head of the US copyright office has argued for the US to look at returning to the "life plus 50" baseline standard currently required by the Berne Agreement, and which those countries already abide by. Yet, here the USTR is rejecting that idea and saying that "life plus 70" will be required. That means that those countries will now have to jack up their copyright terms for absolutely no reason, even though it almost certainly harms the public for no benefit.

It's not like these countries don't know this is a bad idea. It's been explained to them multiple times that even though the countries that have life plus 70 already are regretting it -- and yet the USTR pushed for it anyway, and these countries backed down.

As we've noted for years, this is the really nefarious part of the agreements that the USTR negotiates. While this particular change won't go against current US law, it makes copyright reform virtually impossible. That's the real point of all this: by tying us up in "international obligations," negotiated in backroom deals with no public input or review, the USTR is able to block Congress from having any meaningful chance at fixing the US's broken copyright laws. Anyone who tries to put in place more sensible regimes will be told that they're "violating international obligations" which will tie up the US government in things like those corporate sovereignty ISDS tribunals, in which merely fixing American copyright law will be seen as an unfair "appropriation" by the US government.

This is exactly the reason why these trade deals are being negotiated in this manner. It is not, as some will tell you, about knocking down trade barriers. There is nothing in the fact that Canada has a "life plus 50 regime" that is a "trade barrier" for the US. Sure, some will argue that things like James Bond going into the public domain in Canada is some sort of "trade barrier" with the US, but that's ridiculous. It is no such thing. So why is the USTR doing this, other than to make sure folks employed at the USTR can get cushy jobs with copyright lobbying groups when they want to quadruple their salaries down the road?

Filed Under: canada, copyright, copyright extension, copyright reform, copyright terms, japan, new zealand, tpp, ustr

NZ Prime Minister: 'I'll Resign If GCSB Did Mass Surveillance'; GCSB: 'We Did Mass Surveillance'; NZPM: 'Uh...'

from the start-the-parsing dept

Back in the summer of 2013 as the various "Five Eyes" countries were still reeling from the initial Snowden disclosures, New Zealand's Prime Minister John Key promised to resign if it was ever proven that the GCSB (New Zealand's equivalent to the NSA) had engaged in mass surveillance of New Zealanders -- but with some caveats. He later said that he meant if it was proven that there was illegal surveillance going on. But of course, what's legal can vary based on who's in charge. Either way, late last year there were Snowden documents that proved GCSB regularly scooped up data on New Zealanders, and Key reacted to it by calling Glenn Greenwald "a loser." Not quite the resignation you might have expected.

Then, of course, last week there were further revelations of GCSB doing mass surveillance on a bunch of neighboring countries. In response to that, a former director of the GCSB, Bruce Ferguson, admitted that of course the GCSB was engaged in mass surveillance, but he thinks it's okay because it "discards items it cannot have."

"The whole method of surveillance these days, is sort of a mass collection situation – individualized: that is mission impossible.”

And, later:

"You cannot these days just individually select people ... you put out a big net, catch stuff, you throw out the stuff you don't want ... and you keep the stuff you do want."

In other words, the GCSB does mass surveillance. So what is Prime Minister John Key now saying about this? Well, first, he will no longer promise that mass surveillance isn't taking place, because of course he can't. Furthermore, he now says that even if mass surveillance is shown he won't resign.

And that leads up to an interview done by Radio New Zealand with Key, in which he just starts tap dancing like crazy:

Interviewer: “Nicky Hager’s revelations late last week . . . have stoked fears that New Zealanders’ communications are being indiscriminately caught in that net. . . . The Prime Minister, John Key, has in the past promised to resign if it were found to be mass surveillance of New Zealanders . . . 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.”

PM Key: “No, I can’t. I read the transcript [of former GCSB Director Bruce Ferguson’s interview] – I didn’t hear the interview – but I read the transcript, and you know, look, there’s a variety of interpretations – I’m not going to critique–”

Interviewer: “OK, I’m not asking for a critique. Let’s listen to what Bruce Ferguson did tell us on Friday:”

Ferguson: “The whole method of surveillance these days, is sort of a mass collection situation – individualized: that is mission impossible.”

Interviewer: “And he repeated that several times, using the analogy of a net which scoops up all the information. . . . I’m not asking for a critique with respect to him. Can you confirm whether he is right or wrong?”

Key: “Uh, well I’m not going to go and critique the guy. And I’m not going to give a view of whether he’s right or wrong” . . . .

Interviewer: “So is there mass collection of personal data of New Zealand citizens in the Pacific or not?”

Key: “I’m just not going to comment on where we have particular targets, except to say that where we go and collect particular information, there is always a good reason for that.”

As Glenn Greenwald points out, this is quite an evolution:

From “I will resign if it’s shown we engage in mass surveillance of New Zealanders” to “I won’t say if we’re doing it” and “I won’t quit either way despite my prior pledges.”

Being a politician, it seems, is always making sure you can tap dance around the fact that you'll make pledges you never intend to keep.

Filed Under: bruce ferguson, gcsb, john key, mass surveillance, new zealand, nsa, prime minister, surveillance

Snowden Docs: New Zealand Spying On Friendly Neighboring Countries For The NSA

from the Five-Eyes-but-one-master dept

More Snowden docs have been released, covering the extent of GCSB's (New Zealand's intelligence agency) spying on supposedly "friendly" island nations. As is par for the course for intelligence programs, the documents show massive bulk collections of data and communications -- all of which are immediately shared with the other members of the "Five Eyes" club.

Since 2009, the Government Communications Security Bureau intelligence base at Waihopai has moved to "full-take collection", indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.

This sort of spying -- while apparently "normal," in light of previously-released documents -- indicates many governments enjoy spying for spying's sake, rather than for the justifications they often offer in defense of untargeted surveillance.

The documents, provided by US whistleblower whistleblower Edward Snowden, reveal that most of the targets are not security threats to New Zealand, as has been suggested by the Government.

Instead, the GCSB directs its spying against a surprising array of New Zealand's friends, trading partners and close Pacific neighbours. These countries' communications are supplied directly to the NSA and other Five Eyes agencies with little New Zealand oversight or decision-making, as a contribution to US worldwide surveillance.

New Zealand's intelligence agency, along with Prime Minister John Key, have previously refused to acknowledge or deny the use of the NSA's XKeyscore system. A short blurb from the obtained documents renders this Glomar null.


The wording indicates that GCSB is indeed using this system for its collections, which are then immediately accessible to the NSA. NSA analysts must first read through an online ("iLearn") briefing on NZ law and answer a few questions correctly before they're allowed to search the collection.

The collection itself is impressive. It contains phone calls, text messages, emails and social media interactions. In the parlance of the Five Eyes intelligence agencies, this is "full-take," a far more intrusive form of surveillance than skimming metadata off the top.

Even though it's purportedly an anti-terrorism tool, the surrounding friendly nations have given New Zealand little reason to spy on them. But that's how the anti-terrorism game is played by spy agencies: everything from everyone, for as long as possible. What's not legal to "look at" in one country can always be used by another. The built-in "protections" for each nation's citizens are nearly useless, considering the breadth and depth of these untargeted collections. Incidental collections are a certainty, rather than an anomaly analysts should be wary of.

Whatever's being collected had better be doing a bang-up job keeping terrorists at bay. Prime Minister John Key has openly stated that sending his own citizens off to die is foreign warzones is just paying Five Eyes membership dues.

In his strongest hint yet that the Cabinet will approve a deployment of troops to train Iraqis alongside Australians, Mr Key in an interview with the BBC drew heavily on New Zealand pulling its weight as part of "a club".

"Ultimately are we going to say we are going to be part of a club like [we] are with Five Eyes intelligence?

"Even if the contribution is small - of course it will be proportional - there has to be some contribution," he said.

"It is the price of the club."

Of course, Key has also reassured New Zealand citizens that the GCSB isn't spying on them, betting his job against that probability.

Asked if he and GCSB chief Ian Fletcher would resign if there were mass surveillance, he said yes.

"But the facts of life are it won't happen."

For that to happen, the GCSB would have to undertake illegal activity.

He clarified later saying "both" would resign if there was mass surveillance.

"If I wholesale blatantly flout the law as Prime Minister I'm never going to survive anyway."

Key's hedges make it almost impossible to hold him to his promise. Domestic surveillance has been confirmed, both by these documents and previous revelations. The interception points and untargeted dragnet make it inevitable that New Zealanders' communications are being swept up indiscriminately. The problem is that this is likely legal. The only way to violate New Zealand's surveillance laws (and hold PM Key to his promise) is to find proof that GCSB is intentionally targeting its countrymen. By making surveillance programs broad and untargeted, the GCSB can avoid violating the law while still collecting a great deal of domestic data and communications. Minimization comes into play post-collection, but there's nothing built into the system to prevent -- or even minimize -- these "incidental" collections.

Whatever the GCSB offers in assurances about minimization should probably be ignored. It doesn't maintain any control over the communications it grabs. The collection belongs to the NSA. GCSB analysts have to run queries through the American agency just to see what it's gathered from its neighbors.

The documents show that when GCSB staff want to access communications intercepted at Waihopai, they have to log into NSA computer databases. Minutes of a June 2009 meeting at the NSA headquarters, where a GCSB officer was present, show how integrated the GCSB is into the NSA systems. The GCSB officer, manager of an intelligence analysis unit, told the meeting that 20 per cent of GCSB's analytic workforce did not have accounts or access to key NSA databases.

Because the GCSB doesn't control the database, it really can't destroy anything it shouldn't have access to. New Zealanders caught in this dragnet now "belong" to the NSA, which has very few minimization procedures for foreign collections -- even if the actual "collection" utilized another agency and occurred under another set of laws. GCSB analysts may constrain themselves from searching or viewing New Zealanders' communications, but it can't promise to delete unlawfully-obtained "incidental" collections.

It works out this way: the New Zealand government will provide military support -- including the deployment of troops -- in exchange for whatever the NSA allows it to look at. It provides the intercepts, but the NSA enjoys the greatest share of its "partner's" collection efforts. This hardly seems like an equitable exchange. And now New Zealand is going to be dealing with irritated neighboring countries and more than a few irate New Zealanders. And for what? A massive, untargeted collection that it doesn't even control and which does very little to aid in the country's anti-terrorism efforts.

Filed Under: ed snowden, gcsb, john key, new zealand, nsa, surveillance, xkeyscore

New Zealand Supreme Court Says Raid On Dotcom's Home Legal Enough To Get A Pass

from the quasi-legal dept

While a lower court had found that New Zealand police had violated the law in its poorly written warrant to raid Kim Dotcom's rented mansion, the Supreme Court has now decided that it was legal enough. They admit that while the warrant was probably more vague than the law says it should be, that was okay

"While the search warrants did not specify that the offences were against United States law, or that the offences were punishable by two or more years' imprisonment, this did not cause any significant prejudice to the appellants."

Justices John McGrath, William Young, Susan Glazebrook and Terence Arnold agreed that the warrants for the raid were not unreasonably vague and general.

"Undoubtedly they could have been drafted rather more precisely," they said in their written decision.

"We agree with the Court of Appeal that the appellants were reasonably able to understand what the warrants related to and that the police were adequately informed of what they should be looking for.

"Any issues relating to matters such as the way the search of the computers was conducted or the handling of irrelevant material should be addressed through other processes."

Basically, yeah, sure the warrants didn't technically comply, but everyone sorta understood what was going on, so it's okay. That seems like a fairly slippery slope of reasoning for allowing something that was illegal to proceed because people want it to proceed. The Chief Justice, Sian Elias, didn't agree with her colleagues, and was much more clear in the dissent:

"That conclusion is I think based on a mistaken view of what constitutes a miscarriage of justice in this context," she said in her part of the written decision.

"A search warrant properly issued would not have authorised the seizure of irrelevant material, at least not without setting up conditions to ensure secure and expeditious sorting under the supervision of the court.

"Where, as here, a search warrant was overbroad and no protective conditions were imposed, the relevant miscarriage of justice is complete."

Either way, this issue was always a bit of a sideshow. The fight over extradition to the US is the next big issue, followed by the main event (should it get that far) of an actual trial in the US. Of course, at a bigger level, we're now nearly three years since the US government completely shut down this company, and it's still not clear that it had any legal basis to do so.

Filed Under: kim dotcom, new zealand, raid, supreme court
Companies: megaupload

New Zealand's Trade Minister Admits They Keep TPP Documents Secret To Avoid 'Public Debate'

from the who's-ill-informed? dept

A couple years ago, then US Trade Representative Ron Kirk explained why the negotiating text of trade agreements like the TPP needed to be kept secret: because if the public debated it, the agreement probably wouldn't be approved. He used, as an example, a failed trade agreement where the text had been public. Beyond the "small sample size" problem of this explanation, the much more troubling aspect is the obvious question of recognizing that if public debate would kill the agreement, perhaps it's the agreement that's the problem and not the public.

Apparently, New Zealand's current Trade Minister, Tim Groser, feels similar to Kirk on this issue. During a question and answer period, he was asked why he won't share the draft texts with, say, medical professionals for input, given that the current leaks suggest it would be a disaster for public health. Groser's answer is quite telling, in that he admits that he fears the public debate, because it would be "misinformed."

Hon Phil Goff : When the Minister has the right under Trans-Pacific Partnership rules to provide negotiating texts in confidence to relevant groups outside the Government, why has he not taken advantage of that right to ensure that core groups like medical professionals are properly informed about the issues under negotiation?

Hon TIM GROSER : We are trying to make this negotiation a success, and the member is well aware that there is some quite heavy politics here and that full disclosure to certain parties is likely to lead this to go immediately into the public debate on an ill-informed basis before the deal has been done. We are very conscious of the interests of New Zealanders in protecting themselves from such legislation, and we will continue to take a very responsible approach in this negotiation.

Goff immediately tries to point out that Groser does not, in fact, answer his question, but is cut off by the Speaker of the Parliament who claims that the question has been "addressed."

Groser's response is revealing. First, he doesn't actually answer the question. Goff doesn't ask him about revealing it to the public, but merely "medical professionals." Groser is the one who leaps to the conclusion that sharing the text with medical professionals will result in public debate. Why would that be the case unless the issues in the document are so severe and so concerning to those medical professionals that they would feel the need to leak the document to the public?

Second, going back to the point concerning Ron Kirk's comment: if you're going to lose the public debate, then perhaps it's the agreement that's the problem, rather than the public debate. If these agreements are so good and important, then why can't Groser and others present that information to the public so that they're not "ill-informed." Yes, these are draft texts and not the final ones, but there are other forums in which such draft text negotiations are done publicly, and it hasn't been a problem. It's only in these international trade agreements where the final product is only revealed to the public after it's too late to make any changes or get any input from the public who is most impacted.

Filed Under: new zealand, public, public good, ron kirk, secrecy, tim groser, tpp, trade, transparency, ustr

New Zealand Police Raid Home Of Reporter Who Embarrassed Gov't Officials & Was Working On Snowden Documents

from the freedom-of-the-press? dept

Apparently, the New Zealand government is not a huge fan of press freedom. The national police force recently raided and ransacked the home of Nicky Hager, an independent journalist who has been a thorn in the current leadership's side for some time now.

In August, one month before New Zealand’s national election, Hager published Dirty Politics, which showed that key figures in Prime Minister John Key’s National Party were feeding derogatory information about their opponents to a virulent right-wing blogger named Cameron Slater. Hager published evidence in the form of incriminating emails, provided by a hacker, demonstrating coordination between National Party officials and Slater. The ensuing scandal forced the resignation of a top Key ally, Justice Minister Judith Collins, and implicated numerous other National Party officials and supporters. Despite the scandal, the National Party won a resounding victory in the election, sending Key to a third term as prime minister.

And then, once safely back in power, the government wasted little time:

On October 2—less than two weeks after the election—detectives from a regional “major crime team” came to Hager’s Wellington home armed with a search warrant authorizing them to seize anything that might lead them to the identity of his source for Dirty Politics. The warrant shows that prior to the raid, a police “intelligence analyst” had studied Hager’s media appearances in an effort to discover information about his sources for the book, taking particular note of references Hager made to knowing the source’s identity.

Over at The Intercept, Glenn Greenwald and Ryan Gallagher note that Hager was also working with them on some Snowden documents as they concerned what was happening in New Zealand. As you may recall, right before the election, Greenwald had used some Snowden documents to show that Prime Minister Key had lied about mass surveillance -- leading Key to petulantly lash out with ad hominems at Greenwald, referring to him as a "loser." Greenwald made it clear that they would likely be revealing more about New Zealand's activities -- and now wonders if that might be another reason why Hager was raided, once the government figured out who Greenwald was working with.

Either way, the search seems quite excessive and seriously raises questions about New Zealand's respect for the freedom of the press:

Once they entered the property, detectives spent ten hours sifting through Hager and his family’s personal effects, making copies of any USB storage devices they found and seizing Hager’s computer, personal documents, a camera, a dictaphone, CDs, and dozens of other items—not to mention his daughter’s laptop, cellphones, and iPod.

The whole thing seems fairly crazy, and clearly done to intimidate Hager and others for daring to actually call out the government's bad behavior. These are the kinds of actions that we're supposed to believe no longer happen in modern democracies, but they seem to be happening on an increasingly frequent basis.

Filed Under: cameron slater, dirty politics, ed snowden, free press, john key, new zealand, nicky hager, raids, snowden documents