Hard News by Russell Brown


The Real Threat

Four weeks ago, in the last Media3 of the season, I talked to David Fisher about his OIA request to the GCSB, seeking information on how many, if any, journalists had been subject to intercepts or surveillance. Some people thought the proposition over the top. What reason or authority would state agencies have to spy on journalists?

In yesterday's Sunday Star Times, Nicky Hager revealed that not only have the New Zealand Defence Force and the SIS spied on journalist Jon Stephenson, the NZDF enlisted the help of US spy agencies to do so. It has tasked a foreign organisation with spying on a New Zealand citizen.

On what possible basis could this have happened? That's in the story too:

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.

At the time he was being spied on last year, Stephenson was running the Kabul office for McClatchy, the most respected of the American wire agencies in terms of war reporting, and also filing work for several New Zealand organisations. He was, I know, actively, working to rebut false and defamatory claims made about him by NZDF command, but by no possible definition was he engaged in suberversion.

That wasn't the issue. The issue here is that he had embarrassed defence command.

I knew something of this before we did the Media3 show: Jon had told me in confidence that he'd been spied on. It certainly inclined me to treat it as a serious possibility. And now that we have the detail, I'm angry about it. Did this stop at tracking phone calls? I had occasional emails from Jon in Kabul last year, usually just drawing my attention to stories he'd filed. I am in the "tree" too? 

Those phone records were what we've all recently grown used to calling "metadata" -- information valuable enough for the Defence Force to task US spies with harvesting, but somehow not important enough to receive the full protection of warrant in our government's GCSB bill. It's "only metadata", right?

 The discussion in that Media3 show also took in the news 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 sought and obtained records of Vance’s movements within Parliament from Parliamentary Services staff overseeing Parliament’s security system.

We discovered last week that that wasn't all Henry sought. He tried to get access to Vance's phone records within Parliament, but was fortunately, rebuffed by Parliamentary Services. What was Henry's authority to seek the records? The terms of reference for his inquiry are here. They say:

Stage 1 will include communications and copying equipment and records, log books, and any other material considered relevant of the persons (and/or their offices) who had or were likely to have had access to the compliance review report ...

I think it's a significant stretch to suppose that wording extends to trying to access the private phone records of an independently-employed journalist to see who she's been talking to. But what if the Prime Minister's terms did, absent any other legal authority, explicitly task an inquiry leader with doing such a thing? Would we just rely on Parliamentary Services to refuse what the Prime Minister has authorised?

I think this is where we're getting to. We leave more trails than we used to, and these trails can be found more easily. There is a significant risk that authorities will overreach and breach privacy because it is convenient to so so, rather than because the public need is compelling.

The new GCSB bill makes it remarkably easy to surveil entire classes of people under a warrant that is not subject to judicial review. This isn't to say that Cabinet or other part of the state presently has evil designs on the population. But the temptation in power is always to do what is convenient. And there are things we really must not make convenient.

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