Hard News by Russell Brown


Media3: Watching the Fourth Estate

Last week, New Zealand Herald reporter David Fisher posted the response to his OIA request for information on:

The number of instances in which journalists, media organisations or media representatives have been subject to intercepts or surveillance either by the GCSB or by the other agencies through the GCSB as their agent, broken down by year, over the past five years.

And, furthermore, the reasons for such surveillance and the names of the journalists and the organisations they worked for -- and the procedures relating to the surveillance of journalists and media organisations.

It was a well-crafted request, but the response was, somewhat inevitably, less than helpful: The GCSB can "neither confirm not deny targets of surveillance," because that would prejudice its operations. The bureau did note that "the instances in which New Zealanders were the subject of requests involved serious issues including potential weapons of mass destruction development, people smuggling, foreign espionage in New Zealand a drug smuggling."

There was some talk about organising journalists to make Privacy Act requests of the security agencies en masse -- but that would likely meet the same neither-confirm-nor-deny response.

So it all seemed of largely symbolic value. There was no obvious hook to the story -- no equivalent of spying on the Associated Press.

And then it emerged that David Henry -- the leader of an inquiry into the leaking of the Kitteridge Report into potentially illegal surveillance by the GCSB to the Dominion Post journalist Andrea Vance -- had obtained records of Vance's movements within Parliament from Parliamentary Services staff overseeing Parliament's security system. The Prime Minister professed himself "disappointed" that the information had been handed over.

Was that okay? Perfectly so, said Stephen Franks:

In my opinion it is pointless for law to try to create privacy for actions that are public. Movements in non-private places are public. It is not unlawful to record comings and goings, or to photograph them (absent harassment). Nor should it be unlawful, lest the power to suppress such attention be used by the powerful to punish and block legitimate private investigation of their actions.

I thoought all MPs assumed that the many security cameras around Parliament were recording us at all times. We joked about the risks unknown to previous generations, of attempting late night Speaker's Chair stunts. We knew the messengers gossiped with security staff. They were professionally discreet, but from occasional comments after a party, or a conspiratorial smirk, one suspected that embarrassments in Parliamentary precincts were liable to be known slightly more widely than one might hope.

And that is how things should be. It is idle trying to try to suppress knowledge of things that are in fact public, simply because they have been captured with recent technology, instead of old means. Movements can be reported and recorded without a security system, if there is a will, without committing any offence.

But it seems to me it's not as simple as that. In 1998, Act MP Owen Jennings gave a hotly-contested response to questions about whether he had used his Parliament office to pitch for a very dodgy get-rich-quick scheme. The matter could have been swiftly settled by an inspection of Parliamentary security camera footage -- but even the Privileges committee would not have been able to request the video to confirm Jennings' account of his movements. Why, in the case of a journalist in 2013, was such security information so readily available?

It seems to me there are two main issues: that Parliamentary Services seems to have handed over the information without question, and that Henry then went on to share it with the Prime Minister. The subsequent revelation that the PM's chief of staff, Wayne Eagleson, has three times requested and received and information on Parliamentary email traffic in investigating leaks makes it even more interesting. What exactly is the process when the PM's senior staff member comes snooping on information obtained by journalists? Does he actually have the powers he exercised?

It's yet another element in an endlessly metastasising story that began with a change in the global surveillance climate after the terror attacks of the early 2000s, went pop when Kim Dotcom entered the picture and got quite unfathomable when Peter Dunne resigned after the leaking of the GCSB report. We still don't know a lot about the GCSB's role and the extent to which it has gathered and passed information to other intelligence agencies -- even though we're now facing new laws which seem to considerably expand the agency's powers.

Meanwhile, the German magazine Der Spiegel has reported on documents provided to it by NSA whistleblower Edward Snowden -- which indicate that European Union offices have been subject to comprehensive surveillance -- as a "target" -- by US agencies.

Snowden himself looks to be in a very poor situation. The plan to get him to Ecuador, where he would be offered sanctuary, has begun to unravel, with Ecuadorean president Rafael Correa publicly expressing frustration with the role being played by Wikileaks founder Julian Assange and making no guarantees about shelter for Snowden.

Inevitiably, hardcore Assange cult members have responded in the comments for the Guardian story by damning both The Guardian and Correa as quislings, but I think this development speaks to one of the big problems with the radical transparency movement: so far, it's been pretty toxic for its sources.

Like Bradley Manning, Edward Snowden shoud have been protected from himself. Glenn Greenwald should not have acquiesced to publishing a hero interview with Snowden while his source was without formal refuge. The belief that he could reveal himself then start asking around for a place to go was painfully naive. Assange's intervention, and his role in the creation of a "safepass" document without the proper authority, has been counterproductive. Now, Snowden is faced with an indeterminate stay in a Moscow transit lounge -- if he's lucky.

I'll be talking to David Fisher, the Canon Media Awards Reporter of the Year, about all this and more in the final programme of Media3's 2013 season this week. Our favourite hairy hacker Adam Boileau will also be joining us.

If you'd like to join us for our final recording of the year, come along to to Villa Dalmacija ballroom, 10 New North Road, at 5.30pm on Tuesday. I'm hoping it'll be not only interesting but fun.

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