SUBMISSION TO THE INDEPENDENT PANEL REVIEWING NEW ZEALAND’S INTELLIGENCE AND SECURITY AGENCIES

17 August 2015

INTRODUCTION

This submission is made on behalf of Amnesty International New Zealand’s almost 20,000 supporters and the Human Rights Foundation of Aotearoa New Zealand to the Independent Panel reviewing New Zealand’s intelligence and security agencies – the Government Communications Security Bureau (GCSB) and New Zealand Security Intelligence Service (NZSIS).

Amnesty International is a global movement of more than seven million people who campaign in over 190 countries for justice wherever it has been denied. Through research and campaigning we work to protect people, defending their right to freedom, truth and dignity.

The Human Rights Foundation is a non-governmental organisation, established in December 2001, to promote and defend human rights through research based education and advocacy. We have made submissions on new laws with human rights implications and work to monitor compliance and implementation of New Zealand’s international obligations in accordance with the requirements of the international conventions New Zealand has signed. We also have a focus on a human rights based approach to policy and legislative development.

Amnesty International and the Human Rights Foundation (“the submitters”) both welcome the initiative to conduct an independent review of New Zealand’s intelligence and security agencies. We are submitting the following comments for the independent reviewers to consider and would appreciate any opportunity to present further information, in writing or in person, to the Panel. Please contact Deborah Manning, Human Rights Foundation Committee Member deborah@deborahmanning.co.nz or landline (09) 307 3896; and Amanda Brydon, Advocacy Manager amanda.brydon@amnesty.org.nz or landline (09) 303 4525.

EXECUTIVE SUMMARY

This submission will address the two fundamental questions the terms of reference seek to consider:

Whether the legislative frameworks of the intelligence and security agencies(GCSB and NZSIS) protect and respect individual rights in their efforts to protect New Zealand’s current and future national security, and

Whether the current oversight arrangements provide sufficient safeguards at anoperational, judicial and political level.

Both Amnesty International and the Human Rights Foundation recognise a government’s role in the protection of its citizens and others within its territory and jurisdiction – human security is a human right. However, as mentioned in our submission to the Countering Terrorist Fighters Legislation Bill, any measures taken by states to ensure such protection must also comply with all of the state’s other human rights obligations, including those relating to fair trials and due process and the rights to privacy, freedom of expression, and freedom of movement.

This is essential, not just because human rights are a central component of the rule of law and recognised by the UN Global Counter-Terrorism Strategy as the fundamental basis of the fight against terrorism,1 but because protection of the right to privacy is fundamentally inherent to our feelings of security.

1 General Assembly Resolution A/60/288 20 Sep 2006 A/RES/60/288, [5], accessed 27/11/14.

The following submission sets out the key principles and human rights standards related to security and intelligence gathering and seeks to highlight key issues that impact on these standards.

CURRENT CONTEXT

In what is an increasingly amplified debate, we share the grave and growing concerns of citizens across the globe that powers of surveillance previously considered exceptional have now become the norm.

The world is becoming increasingly connected through advances in technology and with communication playing a central role in that connectivity. Parallel to this is the growing international concern for the security threats posed by extremists and terrorist groups, a vast majority of which can be termed non-state actors.

Using the very technology that has connected us, states now command tools that empower them to undertake the monitoring, interception, collection, selection, retention, analysis, sharing or other use of communications material of all sorts, including communications content and communications data (metadata).

It was not until June 2013, however, when whistle-blower Edward Snowden released classified documents, that the world became aware of the communications surveillance programs conducted by the United States of America and the United Kingdom, as well as vast sharing of intercepted Internet and phone communications between the governments of the USA, UK, Australia, Canada and New Zealand (the Five Eyes Alliance).

Following these revelations the UN General Assembly passed resolution 68/167 on the right to privacy in the digital age. This resolution requested the Office of the High Commissioner for Human Rights to submit a report at the 27th Session of the UN Human Rights Council in June 2014. That report noted the:

“Deep concerns [that] have been expressed as policies and practices that exploit the vulnerability of digital communications technologies to electronic surveillance and interception in countries across the globe have been exposed.”2

The submitters believe these programmes of indiscriminate mass surveillance constitute a violation of the human rights. They are undertaken indiscriminately, without clear requirements for public scrutiny and with very limited oversight and safeguards against abuse. They violate privacy on a massive scale and have a chilling effect on freedom of expression.

While governments claim that these measures are necessary to keep us safe, this submission points to examples where wide surveillance practices have scooped up information seemingly unrelated to security. As well, organisations such as Amnesty International have been directly targeted by illegal government surveillance.

This review is therefore a welcome opportunity to ensure transparency and public debate over the correct balance between ensuring the rights to privacy and security. We also hope that the review will address some of the serious questions that have arisen on New Zealand’s involvement in sweeping powers to conduct indiscriminate mass surveillance, and to clarify the scope and extent of the powers of New Zealand’s own security agencies. It is fundamental to ensure these powers are “conducted on the basis of a legal framework, which must be publicly accessible, clear, precise, comprehensive and non-discriminatory and that any interference with the right to privacy must not be arbitrary or unlawful, as consistent with New Zealand’s international human rights obligations.

2 Report of the Office of the High Commissioner for Human Rights A/HRC/27/37 (30 June 2014) para3.

It is in this context that Amnesty International and the Human Rights Foundation frame our submission and recommendations to the Independent Panel.

PRINCIPLES

There exist clear principles within the international legal framework that lay the foundations for any assessment of laws governing surveillance bodies and their powers.

Legality and the Rule of Law

Any communications surveillance, whether of content or metadata, must be authorised in accordance with domestic laws that are publicly accessible. The law must be sufficiently clear to give people an adequate indication of the conditions and circumstances under which the authorities are empowered to resort to communications surveillance measures. In particular, the law must set out in sufficient detail the extent and scope, and the manner of exercise, of any discretion granted to the relevant authorities to authorise and implement surveillance.

Necessity, Proportionality and Legitimate Aim

Surveillance measures must be strictly necessary and proportionate to a legitimate aim under international human rights law, such as law enforcement or national security, and any interference with individual privacy must be the least intrusive method possible to achieve the government’s legitimate aim.

Competent Judicial Authority

Authorisations for conducting surveillance must be made by a separate and independent authority with adequate resources and competency to make judicial decisions about the legality of the surveillance, the technology used and human rights.

Due Process

States must respect and guarantee the rights of individuals to a fair and public hearing in the determination of their rights, within a reasonable time by an independent, competent and impartial tribunal established by the law.

RIGHT TO PRIVACY

The right to privacy is reaffirmed in the Universal Declaration of Human Rights (UDHR) and guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and other universal and regional human rights instruments.3 Article 17(1) of the ICCPR states: “No one shall be subject to arbitrary or unlawful interference with his privacy … or correspondence …”.4

Although the particular right expressed in the ICCPR is not explicitly recognised in New Zealand law, privacy rights are recognised in both legislation and the common law and, in particular, important privacy principles are recognised within section 21 of the New Zealand Bill of Rights Act 1990 (NZ BORA), which provides that everyone ''has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.”5

3 UDHR, article 12; ICCPR, article 17; CRC, article 16; CRPD article 22.4 See also article 12 UDHR.5 NZ Bill of Rights Act 1990 <http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225523.html> Accessed 14 August 2015.

In addition, the right to privacy is important for the realisation of the rights to freedom of expression, to hold opinions, to peaceful assembly, and to association,6 all of which are recognised in the New Zealand Bill of Rights Act 1990 (NZ BORA).

It should also be noted that under both the Privacy Act 1993 and international human rights standards, every individual has the right of access to information, including what personal data is stored, for what purposes, and which public authority or private entity controls these files.7

There are situations where states can legitimately take measures that interfere with privacy under international human rights law. However, as Martin Scheinin, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has noted, “countering terrorism is not a trump card….[and] every instance of interference needs to be subject to critical assessment”.8

Scheinin states that the right to privacy is subject to the permissible limitations test as set out by the Human Rights Committee in its General Comment No. 27.9 This test includes that any restrictions must be provided by law; necessary in a democratic society; for a legitimate aim; proportionate to achieve their protective function; any discretion must not be unfettered; and any such restrictions on the right to privacy must be consistent with the other human rights guaranteed in the Covenant.10

The Special Rapporteur also emphasised the principle of minimal intrusiveness that requires states to have exhausted less-intrusive techniques first. He contends that states must incorporate this principle into existing and future policies to ensure that proposed measures are necessity and proportionate.11 To ensure that the mandate and powers of the GCSB and the NZSIS meet these tests there needs to be an explicit reference to the right to privacy as set out in article 17 of the ICCPR within the NZ BORA.

Recommendation

That the New Zealand Bill of Rights Act 1990 be amended to include the right to privacy as set out in article 17 of the ICCPR.

FREEDOM OF EXPRESSION

As noted above, there is an explicit right to freedom of expression in New Zealand law.12 This is reinforced by article 19 of the UDHR,:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.13

6 See, e.g., UN Human Rights Council, The right to privacy in the digital age, resolution 28/16, UN document A/HRC/RES/28/16, 1 April 2015, preamble para13.7 Human Rights Committee General Comment no. 34 on Article 19 (2001), para18.8 Scheinin, M Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/13/37 (December 2009) para13 <http://bit.ly/1L0tiZ2> Accessed 10 August 2015.9 Human Rights Committee general comment 27 CCPR/C/21/Rev.1/Ass.9 (November 1999) <http://bit.ly/1KcMQDE>.10 Scheinin, M Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/13/37 (December 2009) para17 <http://bit.ly/1L0tiZ2> Accessed 10 August 2015.11 Scheinin, M Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/13/37 (December 2009) para49 <http://bit.ly/1L0tiZ2> Accessed 10 August 2015.12 Section 14 NZ BORA <http://bit.ly/1UH7qUa> Accessed 14 August 2015.13 UDHR <http://bit.ly/1e0ELb2>.

As the Human Rights Committee noted in its General Comment, freedom of expression includes all forms of electronic and internet-based modes of expression.14 Governments may, in defined circumstances, restrict certain forms of expression or information on narrow grounds such as national security, the protection of public morals or to protect the rights and reputations of others, but only to the extent strictly necessary.

Any restrictions of the right to freedom of expression must also be prescribed by law which is clear and accessible, in pursuit of a legitimate purpose, and necessary and proportionate to achieve that purpose. Any restriction must not only be adequate to the pursuit of the legitimate purpose, but must also be the least intrusive measure among those available. The burden is on the state to demonstrate the necessity and proportionality of the restriction. Restrictions must be consistent with all other human rights recognised in international law; may not impair the essence of the right affected; and may not be applied in a discriminatory or arbitrary manner.

Thus, ensuring respect for human rights, including freedom of expression, is a vital component of any discussion about internet monitoring of individuals.15

TRANSPARENCY OF THE LAW

There are a number of gaps in the current legislative framework surrounding New Zealand’s security agencies powers to surveil that have a negative impact on the human rights of New Zealanders.

Objectives of the GCSB too wide

The GCSB Amendment Act 2013 amended section 7 of the 2003 Act to redefine the objectives of the Bureau, in performing its functions. these are now

“to contribute to—

(a) the national security of New Zealand; and(b) the international relations and well-being of New Zealand; and(c) the economic well-being of New Zealand.”

We are concerned that the broad scope of this definition would permit surveillance that would not meet the international law test - of being necessary, proportionate and for a legitimate aim.

Recommendation

The objectives and powers to surveil of the GCSB should be limited to such objectives and powers as are necessary in a democratic society, for a legitimate aim, proportionate to achieve their protective function and consistent with the other human rights guaranteed in the NZ law and the ICCPR.

Definition of private communication

The Act defines “private communication” in section 4 as follows:

private communication —

14 General Comment no. 34 on Article 19 (2001), para12.15 See Report, Special Rapporteur on extrajudicial, summary or arbitrary executions, Use of information and communications technologies to secure the right to life; UN document A/HRC/29/37 of 24 April 2015; see also, General Comment no. 34 on Article 19 (2001), para15.

(a)  means a communication between 2 or more parties made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but

(b)  does not include a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so

We are concerned that following the revelations by Edward Snowden of worldwide mass surveillance and the increasing awareness of the public of the surveillance exercised by states, many forms of digital communication can now be argued by states to be reasonably expected to be intercepted and therefore fall out of the protection of 4(a).

The law is not currently sufficiently clear to give people an adequate indication of the conditions and circumstances under which the authorities are empowered to resort to communications surveillance measures.

Amnesty International and the Human Rights Foundation therefore welcome the decision by Inspector-General Cheryl Gwyn to include in the scope of her review of the GCSB how ‘private communication’ is being interpreted by the Agency.16

Recommendation

The definition of private communication should be amended so that it provides sufficient clarity on the conditions and circumstances under which the GCSB is empowered to resort to communications surveillance measures.

Definition of foreign organisation

Under New Zealand law, the GCSB can gather and analyse intelligence about the capabilities, intentions, and activities of “foreign persons and foreign organisations”.17

In the GCSB Act 2003, an “international organisation” is defined as a “foreign organisation”, so Amnesty International may come within the GCSB’s mandate,18 although the expression “international organisation” is not defined. In other Acts also relevant to the SIS and GCSB,19

the definition of a foreign organisation does not include international organisations – for example, in the NZSIS Act 196920 and the Privacy Act 1993, “international organisation” is refers only to organisations, agencies or governments of states.21

Amnesty International holds grave concerns at the recent revelations in July 2015 when the UK’s Investigatory Powers Tribunal (IPT) notified Amnesty International that the UK

16 Edwards, B “PM relaxed about GCSB spying investigation” (31 March 2015) <http://www.radionz.co.nz/news/political/269985/pm-relaxed-about-gcsb-spying-investigation> Accessed 16 August 2015.17 Section 8B, Government Communications Security Bureau Act 2003 Section 8B: Intelligence gathering and analysis <http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM5647924.html>18 Section 4, Government Communications Security Bureau Act 2003 <http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM187185.html> 19 The GCSB is subject to the GCSB Act 2003, The Intelligence and Security Committee Act 1996 and the Inspector-General of Intelligence and Security Act 1996. It is also subject to all New Zealand law, although exemption provisions are contained in legislation such as the Privacy Act 1993, the Public Finance Act 1989, the Radio Communications Act 1989, the Human Rights Act 1993 and the Public Records Act 2005.Government Communications Security Bureau: About us/ Legislation. http://www.gcsb.govt.nz/about-us/legislation/ 20 New Zealand Security Intelligence Act 1969, Section 2: Interpretation http://www.legislation.govt.nz/act/public/1969/0024/latest/DLM391611.html?search=sw_096be8ed80f9043b_international+organisation_25_se&p=1&sr=0 21 In the Privacy Act, an “international organisation means any organisation of States or Governments of States or any organ or agency of any such organisation; and includes the Commonwealth Secretariat.” Privacy Act 2003, Section 2: Interpretation

government agencies had spied on the Amnesty by intercepting, accessing and storing its communications. Leaks from National Security Agency (NSA) whistleblower Edward Snowden have also showed that the Government Communications Head Quarters (GCHQ) and the NSA, spied on Doctors of the World and UNICEF.22 If human rights defenders and victims of abuses believe their confidential correspondence with Amnesty is likely to end up in the hands of governments23 it will be virtually impossible for Amnesty International to carry out our crucial work around the world

Recommendation

The law be amended to clarify that humanr rights defenders like Amnesty International are excluded from the definition of foreign organisation in the Government Communications Security Bureau Act 2003.

METADATA & CONTENT

Experts have highlighted that the bulk collection of metadata overtime can allow the production of a very accurate picture of who associates with whom, how they spend their free time, what health conditions they may have, what their political views are likely to be, and other details of their private lives.24

The United States government has defended the bulk collection of telephony metadata by asserting that the content of the calls is not monitored or recorded. In fact, U.S. government lawyers argue – and as far as is known the secretive Foreign Intelligence Surveillance Court has so far agreed – that warrants are not required for this activity because persons do not have a privacy interest in the phone numbers and the other details of the calls they make. That is a convenient conclusion for those who want to conduct surveillance without basic legal safeguards, but it is not a reasonable one. Human rights principles do not allow the state to collect information that enables it to assemble a detailed picture of a person’s daily activities and network of contacts without a specific and individualised reason subject to scrutiny by an independent judiciary.

At present, the legislation is unclear whether metadata is considered a ‘communication’ and thus whether the interception, collection and analysis of this information requires a warrant.

In a speech concerning the 2013 GCSB Act Amendment Bill, Prime Minister John Key reiterated that metadata would be treated the same in the bill as communications, which means that before a New Zealander's metadata can be collected, it will require a warrant to be signed by the Prime Minister and the Commissioner.25

Recommendation

22 https://www.amnesty.org.nz/uk-government-spied-us-and-we-won%E2%80%99t-take-it-lying-down Accessed 10 August.23 https://www.amnesty.org/en/latest/news/2015/07/uk-surveillance-tribunal-reveals-the-government-spied-on-amnesty-international/ Accessed 10 August. As a result of these revelations Amnesty International called on Prime Minister David Cameron for the UK to hold an independent judge-led inquiry into surveillance of human rights organisations by UK security services in an Open letter of 10 July:https://www.amnesty.org.nz/amnesty-international-calls-david-cameron-launch-surveillance-inquiry Accessed 10 August 2015. 24 See, for example, Daniel J. Solove, “Five myths about privacy,” The Washington Post, 13 June 2013, http://articles.washingtonpost.com/2013-06- 13/opinions/39948998_1_government-surveillance-privacy-internet-surveillance (last viewed 29 August 2013); Daniel J. Solove, “Why privacy matters even if you have ‘nothing to hide,’” The Chronicle of Higher Education, 15 May 2011, http://chronicle.com/article/Why-PrivacyMatters-Even-if/127461/ (last viewed 29 August 2013); Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (New Haven and London: Yale University Press, 2011).25

The New Zealand Herald: GCSB bill passes after final reading. 21 August 2013. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11112152

The GCSB law should be clarified to ensure that metadata is considered a ‘communication’.

MASS SURVEILLANCE

Examples of overt and covert digital surveillance in jurisdictions around the world have proliferated. Mass surveillance by governments (and the interference with people’s privacy that it represents) has become commonplace – it is no longer an exceptional measure.26 Opponents of mass surveillance increasingly have to argue why additional information should not be collected, rather than the burden of proof residing with the state to establish that the interference is necessary.

Amnesty International and the Human Rights Foundation are strongly concerned that, since 2009, the GCSB intelligence base at Waihopai has been conducting a “full-take collection” in the Asia Pacific, indiscriminately intercepting communications and providing them to the NSA through the XKeyscore system.27 This is a system which is used to analyse vast amounts of emails, internet browsing sessions and online chats that are intercepted from some 150 different locations worldwide.28 We understand ‘full-take’ to mean the indiscriminate, large scale collection of both the content of communications and their metadata.

The Snowden documents list many of New Zealand’s Pacific neighbours which have been the subject of the GCSB mass surveillance. These include small nations such as Tuvalu, Nauru, Kiribati and Samoa as well as Vanuatu, the Solomon Islands, New Caledonia, Fiji, Tonga and French Polynesia.29

Media reports state that “[t]he spy agency intercepts the flows of communications between these countries and then breaks them down into individual emails, phone calls, social media messages and other types of communications.” The allegations that all this intelligence is immediately made available to the NSA is also of deep concern.30

Further, training materials for XKeyscore “detail how analysts can use it and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.”31

Surveillance of communications in this way (whether of content and/or metadata) constitutes interference with a range of human rights, including the rights to privacy and freedom of expression.

As set out in the principles above, surveillance is only justifiable when it occurs based on reasonable suspicion; in accordance with the law; is strictly necessary to meet a legitimate aim (such as protecting national security or combating serious crime); and is conducted in a manner that is proportionate to that aim and non-discriminatory.26 Report of the Office of the High Commissioner for Human Rights A/HRC/27/37 (30 June 2014) para3.27 Hager, N & Gallagher, R “Snowden revelations / The price of the Five Eyes club: Mass spying on friendly nations” (5 March 2015) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11411759> Accessed 13 August 2015. 28 Hager, N & Gallagher, R New Zealand Spies on Neighbors In Secret "Five Eyes" Global Surveillance (5 March 2015) <https://firstlook.org/theintercept/2015/03/04/new-zealand-gcsb-surveillance-waihopai-xkeyscore/>. Accessed 14 August 2015.29 Hager, N & Gallagher, R “Snowden revelations / The price of the Five Eyes club: Mass spying on friendly nations” (5 March 2015) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11411759> Accessed 14 August 201530 <https://firstlook.org/theintercept/2014/09/15/snowden-new-zealand-surveillance/>.31 <http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data>. Accessed 14 August 2015.

Amnesty International and the Human Rights Foundation consider that indiscriminate mass surveillance constitutes a fundamental breach of the human right to privacy and freedom of expression. It fails the test of constituting a necessary and proportionate interference with such rights.32

States have sought to justify mass collection of information, both metadata and content with arguments that information is narrowed down and targeted before it is seen by a human analyst. However, it is submitted that an individual’s right to privacy is engaged at the point of collection, not at the end of the processes when a human analyst sees the information.33

State bodies such as the UK Intelligence and Security Committee have defended the mass surveillance programmes as a legitimate tool for intelligence gathering. It is worth noting, however, that these arguments are being increasingly challenged and undermined. On 6 February, the Investigatory Powers Tribunal (IPT) found that UK intelligence services acted unlawfully in accessing millions of people’s personal communications collected by the (US) NSA. This was the first time that the IPT had ruled against the UK intelligence and security services.

Amnesty International and 10 other NGOs have also taken a case to the European Court of Human Rights to determine the legality of mass surveillance.34 They have complained to the Court on the following violations to Convention rights:

Articles 8 and 10: The UK Government’s interception, inspection, retention and storage and disclosure of the Applicants’ communications (content and ‘communications data’) and its receipt, inspection, retention and storage of such communications from the US Government was not in accordance with the law and was disproportionate.

Article 14: In association with interferences with Articles 8 and 10, the different treatment and applicable safeguards for persons within the UK when compared to persons outside the UK were discriminatory and not justified.

Article 6: The procedure by which the Applicants’ claims were heard was unfair, particularly in relation to the IPT holding closed proceedings on issues of law; and the lack of adequate disclosure.

The case is ongoing and joins a growing number of challenges on this issue.

It is imperative therefore that this review (and that of Inspector-General Cheryl Gwyn) determine exactly what surveillance New Zealand’s intelligence agencies have been conducting extraterritorially and whether, like the US and the UK, the GCSB has been ‘hoovering up’ communications information and sharing it with its partners.

Recommendations

That the ongoing review of the Inspector General and this independent clarify whether New Zealand has been engaged in the mass surveillance of communications information extraterritorially.

That the law be amended to ensure that the powers of the GCSB and the NZSIS do not allow for the indiscriminate mass surveillance of individuals in breach of New Zealand’s international obligations to uphold the right to privacy.

32 <https://www.amnesty.org/en/latest/news/2015/04/amnesty-international-takes-uk-government-to-european-court-of-human-rights-over-mass-surveillance/>.33 <http://www.theguardian.com/world/2015/jul/14/uk-surveillance-report-makes-concessions-to-privacy-lobby>.34 <https://www.amnesty.org/en/latest/news/2015/04/amnesty-international-takes-uk-government-to-european-court-of-human-rights-over-mass-surveillance/>.

Privileged Communications

Whatever is decided about the appropriate threshold and conditions for mass surveillance, the law should require the erasing of ‘privileged communications’., Where privileged communications, such as those between lawyer and client or between a journalist and their sources, are gathered indirectly during surveillance, they should be destroyed and this should be overseen by an internal ‘gatekeeper’ or an external oversight body.

A report for the European Commission for Democracy Through Law (Venice Commission) in 2015 cited35 the European Court of Human Rights (Klass v FRG; Kopp v Switzerland and Erdem v Germany)36 holding that unless there is evidence of involvement of the lawyer etc in crime or conduct damaging to national security, interception of the privileged communications by means of signals intelligence should not be lawful.37

EXTRATERRITORIALITY

States have sought to justify their engagement in mass surveillance programmes, even where there is no suspicion that the user is involved in any offence, by secretly redefining them as "external communications".38

This section of the submission submits that this distinction fails to recognise that states have the same obligation to protect individuals outside its territory and jurisdiction from unreasonable interference with their privacy as they do for those within their borders.

The issue is directly relevant to New Zealand following the revelations of New Zealand’s ‘full-take’ surveillance on communications across the Pacific.

It is our submission that Article 2 (1)39 of the ICCPR implies extraterritorial obligations to respect and protect rights and that the obligations to both ensure and respect rights are to be exercised extraterritorially subject to the “power or effective control over the essence of the right”. In the context of surveillance of an individual’s communications, this refers to effective control or power over those communications. This leads to the conclusion that extraterritorial surveillance engages the surveilling state’s obligations to respect the rights to privacy guaranteed in the ICCPR.

“Extraterritorial” application of the ICCPR refers to interferences or violations of protected rights that both occur outside the territory of a state and affect enjoyment of the right outside of the territory of that state.

The Human Rights Committee has held a longstanding position affirming states’ obligations to apply ICCPR rights outside their own territories, and clarifying that Article 2(1) of the Covenant is to be read disjunctively. The view of the Committee in this regard is best summarised in López Burgos v. Uruguay:

35 <http://www.coe.int/t/dghl/standardsetting/media/Conf-FoE-2015/Venice%20Commission_Study%20No%20719_2013.pdf>. 36 No. 38321/97 (5 July 2001).37 E.g. both the German G10 Act (section 3b) and the Swedish Signals Intelligence Act (section 7) provide for destruction of privileged communications.38 <https://www.amnesty.org/en/latest/news/2015/04/amnesty-international-takes-uk-government-to-european-court-of-human-rights-over-mass-surveillance/>. 39 “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>

“…it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”40

In its General Comment 31, the Human Rights Committee reaffirmed this position, stating that states must ensure Covenant rights to “anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”41 Amnesty International has also detailed a number of cases internationally where states must respect and ensure rights extraterritorially.42

To the extent that it is considered a requirement that the state must have “power or effective control”, we submit that the correct interpretation is that the state must have power or effective control over the essence of the right in question. With respect to surveillance, it is power or effective control over the individual’s communications that will constitute the state’s power or effective control over the right to privacy.

We consider that mass surveillance of communications by a state constitutes a context that is within the control (or at least the power or authority) of that state. Where the state’s domestic law enables its government to intercept or surveil individuals’ communications wherever that occurs, such action must fall within the authority of the state.

This analysis also accords with the position taken by the Human Rights Committee in its very recent observations on the issue.43 In March 2014, the Human Rights Committee recommended that the United States “take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance.”44 In making this recommendation the Human Rights Committee affirmed the view that the obligations of states pursuant to the ICCPR apply to surveillance activity outside their own territory.

The submitters consider that state communications surveillance programmes and measures constitute an interference with the rights to privacy and freedom of expression, regardless of where the surveillance occurs or the location of the individual(s) concerned.

The GCSB cannot lawfully intercept private communications of New Zealanders for intelligent gathering purposes.45 It is respectfully submitted that international human rights obligations apply extraterritorially when the state has power or effective control over an individual’s enjoyment of the right in question.

In the context of surveillance of an individual’s communications, we consider that power or effective control over the individual’s enjoyment of the right to privacy and freedom of

40 López Burgos v. Uruguay, UN Doc. A/36/40, 6 June 1979, para12.3.41 Human Rights Committee General Comment 31, UN Doc. CCPR/C/74/CRP.4/Rev.629 (March 2004), para10.42 Amnesty International’s submission on extraterritorial surveillance to the Office of the High Commissioner on Human Rights, accessible at <http://www.ohchr.org/EN/Issues/DigitalAge/Pages/Contributions.aspx#civil_society>;43 UN Human Rights Committee, Concluding observations on the fourth report of the United States of America, UN Doc. CCPR/C/USA/CO/4, para22, available at <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fUSA%2fCO%2f4&Lang=en>.44 UN Human Rights Committee, Concluding observations on the fourth report of the United States of America, UN Doc. CCPR/C/USA/CO/4, para22 (a), available at <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fUSA%2fCO%2f4&Lang=en>.45 Section 14, Government Communications Security Bureau Act 2003 <http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM187840.html?search=sw_096be8ed80c36008_restrictions_25_se&p=1>. Accessed 15 August 2015.

expression refers to power or effective control over the individual’s communications. Where such power or effective control is exercised abroad, and therefore the interference with the right occurs abroad (such as when a communication is intercepted, or analysed, or stored abroad), the relevant state’s obligations related to this interference apply extraterritorially.

Where such power or effective control is exercised within the states’ territory, and therefore the interference with the right occurs within the state’s territory (such as when a communication is intercepted while passing through the state’s territory, or analysed, or stored on the state’s territory), even though the person concerned is at the time located abroad, the relevant state’s obligations apply as a matter of territorial jurisdiction.

In a poll conducted in early 2015 of over 1,000 New Zealanders by Amnesty International, it was found that more than half of those surveyed (53%) were opposed to the New Zealand government intercepting, storing and analysing internet use and mobile communications of people living in other countries.46

Recommendation

That the legislation be amended so as to ensure that surveillance powers do not breach New Zealand’s international human rights obligations that apply extraterritorially.

Obligation to protect persons against unlawful surveillance by third parties

Concerns have been raised as to whether the New Zealand government, through its involvement in the Five Eyes Alliance, is allowing the surveillance of New Zealanders” communications by another state. A recent resolution by the Council of Europe expressed deep concern at such mass surveillance practices and noted that:

The Snowden files have shown that the United States NSA and its foreign partners, in particular among the “Five Eyes” partners (Australia, Canada, New Zealand, the United Kingdom and the United States), circumvent national restrictions by exchanging data on each other’s citizens.47

In the global results of the Amnesty International poll of over 15,000 people from 13 countries across every continent, it was found that 71% of respondents were strongly opposed to the United States monitoring their internet use.48

While the allegations of unlawful surveillance by third parties were recently denied by the Acting GCSB Director in an interview with the NZ Listener49, we consider it essential that the issue be addressed by this review

Recommendation

46 Amnesty International “New Zealanders part of global opposition to mass surveillance” (18 March 2015) < http://www.scoop.co.nz/stories/PO1503/S00202/nzers-part-of-global-opposition-to-mass-surveillance.htm>. Accessed 15 August 2015.47 Parliamentary Assembly, Council of Europe Resolution 2045 para10. <http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21692&lang=en> Accessed 5 August 2015. Also see the full report here: <http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21583&lang=en>. 48 Amnesty International “New Zealanders part of global opposition to mass surveillance” (18 March 2015) < http://www.scoop.co.nz/stories/PO1503/S00202/nzers-part-of-global-opposition-to-mass-surveillance.htm>. Accessed 15 August 2015.49 August 15 edition at page 24 (re the Five Eyes partnership) "...no partner can get around each other's domestic legislation through the process of sharing."..."we don't just use other partners' connections to circumvent our domestic obligations and there's a firmly held rule between the five countries that no one does that."

That the Panel review whether New Zealand has allowed foreign states to conduct unlawful surveillance on New Zealanders through the bulk collection of the communications and/or metadata.

RETENTION OF INFORMATION

As mentioned above, the bulk collection of communications information over time can allow the production of a very accurate picture a person’s private life, even when the content is not monitored.50

Moreover, once collected and stored, this data may potentially be used in the future for reasons that would not have justified the initial collection of information. The potential for misuse thus extends indefinitely into the future.

If information is collected in the absence of any suspicions by the authorities of unlawful conduct by the individuals concerned, it may be that the retention of that information for use at a later date is disproportionate to the interference on the right to privacy.51

In Digital Rights Ireland v Minister for Communications and others, 8 April 2014, C-293/12 the Grand Chamber of the CJEU concluded that the relevant 2006 Data Retention Directive (Directive 2006/24/EC of the Parliament and the Council of 15 March 2006) which required communications service providers to retain customer data for up to two years for the purpose of preventing and detecting serious crime, breached the rights to privacy and data protection under Articles 7 and 8 respectively of the EU Charter of Fundamental Rights.52

Recommendations

The law should contain clear guidelines about what information may be retained, for what specific and legitimate purpose and for how long. There must also be sufficient safeguards to ensure that the information is held securely.

The law must also ensure that stored communications material must be deleted at the earliest possible moment, and at the latest when it is no longer strictly necessary to achieve the legitimate aim for which it has been obtained.

INCIDENTALLY OBTAINED INFORMATION

Section 5 of the GCSB Amendment Act 2013 amended section 4 of the GCSB Act 2003 to include an interpretation of incidentally obtained intelligence.

“incidentally obtained intelligence means intelligence—

“(a) that is obtained in the course of gathering intelligence about the capabilities, intentions, or activities of foreign organisations or foreign persons; but

“(b) that is not intelligence of the kind referred to in paragraph (a)53

50 See, for example, Daniel J. Solove, “Five myths about privacy,” The Washington Post, 13 June 2013, <http://articles.washingtonpost.com/2013-06- 13/opinions/39948998_1_government-surveillance-privacy-internet-surveillance>. (Last viewed 29 August 2013); Daniel J. Solove, “Why privacy matters even if you have ‘nothing to hide,’” The Chronicle of Higher Education, 15 May 2011, http://chronicle.com/article/Why-PrivacyMatters-Even-if/127461/ (last viewed 29 August 2013); Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (New Haven and London: Yale University Press, 2011).51 <https://www.amnesty.org/en/documents/ior60/1415/2015/en/>. para65. 52 <https://www.amnesty.org/en/documents/ior60/1415/2015/en/>. para65. 53 Section 4 GCSB Act 2003 <http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM187855.html>. Accessed 14 August 2015.

Amnesty International and the Human Rights Foundation remain concerned at the collection of information that is not obtained for a targeted purpose. While we note the independent investigation by Inspector-General of Intelligence and Security Cheryl Gwyn, into whether the communications of New Zealanders have been obtained incidentally in the ‘full-take’ operations of the GCSB in the Pacific,54 we are seriously concerned whether information that is incidentally obtained meets the test to be necessary, proportionate and for a legitimate aim, regardless of the nationality of affected individuals.

INFORMATION USED FOR A SECONDARY PURPOSE

As a result of the 2013 amendment, the Director can also retain incidentally obtained intelligence that comes into the possession of the Bureau for one or more of the following purposes:

a) preventing or detecting serious crime in New Zealand or any other country:b) preventing or avoiding the loss of human life on the high seas:c) preventing or responding to threats to human life in New Zealand or any other country:d) identifying, preventing, or responding to threats or potential threats to the security or

defence of New Zealand or any other country.55

Data law protection allows for information to be collected for a single purpose but generally, national security and law enforcement policies are exempted from these restrictions. Special Rapporteur Martin Scheinin expressed concerns that this limits the effectiveness of safeguards that are necessary to combat abuse. In the submitters view, there must be an explicit legal basis rooted in a human rights framework that clearly details in legislation where information can be re used for a secondary purpose. This is particularly important when the information is shared nationally between agencies. These safeguards must continue to apply when the information crosses state borders and is shared with other states.56

in our submission, the law should provide necessary safeguards against abuse of the state’s human rights obligations, including sufficient detail regarding the circumstances and procedures that apply to the authorisation of secondary use.

In our view, the aims set out in the above purposes are too vague and broad to meet the test of exceptional situations; nor do they include sufficient detail regarding the procedures that would apply to secondary use.

Recommendation

The legislation detailing the purposes for use of secondary information must be sufficiently clear and specific enough to also met the test of necessity and proportionality and be for a legitimate aim.

The law must also contain sufficient safeguards to prevent the abuse of that information.

54 <http://www.igis.govt.nz/media-releases/announcements/inquiry-into-allegations-of-gcsb-interception-of-communications-in-the-south-pacific-25-march-2015-3-00pm/> Accessed 14 August 2015.55 Section 25(2) of the GCSB Act 2003 <http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM187855.html> Accessed 14 August 2015.56 Scheinin, M Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/13/37 (December 2009) para50 <http://bit.ly/1L0tiZ2> Accessed 10 August 2015.

INFORMATION SHARING

Under section 8A of the GCSB Act 2003, the GCSB has the power to cooperate with other New Zealand state agencies, as well as with other state’s agencies.57 In addition, following the 2013 amendment, the GCSB can communicate “incidentally obtained intelligence” to public authorities overseas, if the Director thinks these agencies are “fit to receive the information”.58

The NZSIS can also “co-operate as far as practicable and necessary” with state agencies abroad as far as these agencies can help the NZSIS fulfil its functions.59 While information sharing between agencies and Governments can be necessary in combatting threats to international security, states have been called to share information under UN Security Council Resolution 2178.60 The resolution states that this must be done while respecting human rights and fundamental freedoms and in compliance with other obligations under international law.

In our submission on the Countering Terrorist Fighters Legislation regarding amendments to the Customs and Excise Act 1996, which allowed for persons from the NZSIS and the Police to have direct access to Customs databases to search for information for counter-terrorism investigation purposes, Amnesty International and the Human Rights Foundation expressed concern that there may be insufficient safeguards to ensure that the information is not shared in a way that endangers the individual or others rights to life under section 8 of the NZ BORA, and section 9, the right not to be subjected to cruel, inhuman or degrading treatment or punishment.

We have the same concerns about the 2013 amendment to the GCSB law. We understand that the information swept up in the ‘full-take’ of the Pacific is fed into the XKeyscore Programme under which NSA analysts require no prior authorisation for searches.61 This draws into sharp focus the question of what safeguards exist to moderate the ability of states, including New Zealand, to share information with third countries and what checks and balances are placed around the use for a secondary purpose of information gathered for a primary purpose,. In addition, it raises the issue of how that information is stored and protected once it has been collected.

Where shared information may be used to commit human rights abuses.

We are also concerned that the information sharing agreements New Zealand holds with other countries enable information collected by the GCSB to be used by those other countries to commit abuses of human rights.

Amnesty International released a report “Will I be Next?” US Drone Strikes in Pakistan62 in October 2013. This documented the death in October 2012 of 68 year old Mamana Bibi in a

57 Section 8A, GCSB Act 2003 http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM5647923.html?search=sw_096be8ed80c36008_overseas_25_se&p=1&sr=1 58 Section 25 Government Communications Security Bureau Act 2003 (including 2013 amendments), <http://www.legislation.govt.nz/act/public/2003/0009/latest/DLM187855.html>. Accessed 14 August 2015. 59 Section 4,New Zealand Security Intelligence Act 1969<http://www.legislation.govt.nz/act/public/1969/0024/latest/DLM391804.html >. Accessed 14 August 2015.60 UN Security Council Resolution 2178 S/RES/2178 (2014) para9 <http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2178.pdf>. Accessed 14 August 2015.61 Greenwald, G “XKeyscore: NSA tool collects 'nearly everything a user does on the internet'” (31 July 2013) <http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data>. Accessed 14 August 2015. 62 Amnesty International “Will I be next?” US Drone Strikes in Pakistan (2013) http://www.amnestyusa.org/research/reports/will-i-be-next-us-drone-strikes-in-pakistan

drone strike while she was gathering vegetables in her village in northwest Pakistan less than 50km from the border with Afghanistan. Notwithstanding widespread concerns with the US drone programme, in May 2014 Prime Minister John Key confirmed that New Zealand's spy agencies have provided information to the International Security Assistance Force (ISAF) in Afghanistan that may have been used for American drone strikes.63

New Zealand is bound to uphold international human rights and international humanitarian law and it would be deeply concerning if security information gathered by New Zealand intelligence services was then used for a drone strike that killed civilians.

While the Prime Minister claims that drone strikes have been an effective way of prosecuting people that are legitimate targets,64 the US has come under intense international criticism over its use of drones. In a 2014 report issued by the UN’s Special Rapporteur on human rights and counter-terrorism, Ben Emmerson, the US is urged to ensure that “any measures taken to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including international humanitarian and international human rights law.”65

In March 2014, the UN Human Rights Committee issued its own report expressing concern about “the State party’s (US) practice of targeted killings in extraterritorial counter-terrorism operations using unmanned aerial vehicles (UAV), also known as ‘drones’ [and] the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks.”66

This example highlights the urgent need for greater safeguards for the sharing of intelligence information with third parties, including other states governments.

Recommendation

The law should be amended to include sufficient safeguards to ensure that any information shared with other governments is not used to commit violations of human rights.

VERACITY OF INTELLIGENCE

Amnesty International and the Human Rights Foundation are concerned at the lack of safeguards to ensure the veracity of intelligence gathered by New Zealand’s intelligence agencies.

The case of Zaoui v Attorney General 67 was a stark reminder of why there needs to be adequate safeguards to ensure the veracity of intelligence that is being relied on in a way that infringes fundamental human rights.

Ahmed Zaoui spent years in detention or on restricted release facing a “reverse” onus of proof to defend himself against the allegation that he was a security risk based on “information” claimed to be classified. In granting Mr Zaoui refugee status, the independent Refugee Status Appeals Authority had found the allegations not to be credible. It was only 63 Davison, I “GCSB data may have been used for drone strikes – PM” (19 May 2014) http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11257788 Accessed 10 August 2015. 64 http://www.stuff.co.nz/national/politics/10063849/Drone-strikes-justified-Key65 Emmerson, B Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (11 March 2014) paragraph 23. http://bit.ly/1N29QKZ Accessed 10 August 2015. 66 UN Human Rights Committee Concluding Observations on the fourth periodic report of the United States of America CCPR/C/USA/CO/4 (23 April 2014) paragraph 9 http://bit.ly/1lK6j7H Accessed 10 August 2015.67 Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690.

after multiple hearings in the High Court and appellate courts which ultimately resulted in the SIS being required to provide the information on which the security risk certificate was based to special counsel (who even then would have been unable to disclose it to Mr Zaoui) that the certificate (and the allegations on which it was based) were withdrawn.

It was only through intensive research, including a visit to Europe and information from overseas experts by Zaoui’s legal counsel, that the information relied on in the security certificate was indeed established to be unreliable, as the RSAA had found. Essentially, his detention was based on an error during an interview undertaken by a Customs Officer on behalf od the SIS. Despite the error being identified at an early stage of the process, the authorities, including the SIS and various Ministers of the Crown up to and including the Prime Minister of the day persisted with the security risk certificate and the allegations on which it was based. The case illustrates both how independent scrutiny (essentially, the courts) is essential in all situations where the rights of individuals are involved and the inadequacy of political oversight. Politics provided few incentives to seriously address Mt Zaoui’s rights which were abused throughout the process, essentially because they could be..

Recommendation

Clearer provisions are required to enable early independent scrutiny of decisions made by security agencies that affect the rights of individuals.

Must know the sources

Often security agencies argue that releasing publicly information provided by other states would result in less information being shared by those states. However, In order to effectively assess the credibility of intelligence information that is being relied on, it is imperative that the sources of that information are disclosed. This is because it is often only in this broader context that the information can be fully understood and the truth discerned.

This is just as important when the information relied on comes from a third party that New Zealand has obtained through prior agreement. This information should not be used if that third party does not consent to a meaningful summary of the information also to be imparted to the defence.

Intelligence obtained through breaches of human rights.

It is also crucial to know the source of information to ensure that the intelligence being relied on has not been obtained through breaches of human rights. This includes confessions extracted under torture.

Recommendation

The law should be amended to ensure that the sources of information are disclosed to those relying on that information to make a decision around surveillance and wider powers.

IMPACT OF THE USE OF INTELLIGENCE INFORMATION ON OTHER HUMAN RIGHTS

The impact of the collection of information and its use for “intelligence” purposes extend much wider than the rights to privacy and freedom of expression. The use of that information in Court proceedings to make decisions for the cancellation of passports and travel documents as well as the arrest, prosecution and detention of individuals has significant

implications on a wide range of human rights, including rights to a fair trial, and the right to freedom of movement.

We welcome therefore the review by the Law Commission into the use of security and intelligence information in civil and criminal proceedings and both organisations have taken the opportunity to raise key concerns with the Commission.

We would also be happy to provide the independent reviewers further information on the points raised in the context of the above.

COUNTERING TERRORIST FIGHTERS LEGISLATION

This Bill was passed with unjustified urgency allowing only 48 hours for submissions. It raised significant alarm within civil society and the wider public by undermining the ability of experts and the public to assess the impact the legislation might have and constructively engage with the legislative process.

Amendments to the Passport Act and the right to freedom of movement

At the time, Amnesty International and the Human Rights Foundation raised concerns that the amendments to the Passport Act 1992, which allow the Minister to cancel or retain travel documents on the grounds of national security or a threat to a country other than New Zealand for a period of up to 36 months or to refuse to issue a passport on the grounds of national security or a threat to a country other than New Zealand. The concern was that the provisions would significantly impact on the right to freedom of movement as set out in article 13 of the UDHR and article 12 of the ICCPR.68

Like the right to privacy, the right to freedom of movement can only be subject to such limitations that must be provided by law, necessary in a democratic society, for a legitimate aim, proportionate to achieve their protective function, and the discretionary powers must not be unfettered. While it is recognised that there will be legitimate circumstances when the powers above may be necessary, it is our submission that such decisions should be made or at least open to scrutiny by an independent judicial mechanism and not simply by the Minister.

Recommendation

That all decisions relating to security risks in the Passports Act 1992 that use security information be made or reviewed by an independent judicial mechanism.

Amendments to the New Zealand Security Intelligence Service Act 1969

The Bill sought to extend the NZSIS surveillance powers to include visual surveillance on private property with a warrant and, in situations of emergencies or urgency, without a warrant for 48 hours.

When the Amendment Act was finally passed, the changes allowed the SIS to carry out visual surveillance on private properties under warrant, but powers to conduct surveillance activities without a warrant were only granted for 24 hours and where the alleged activities relate to terrorism.

68 Amnesty International & the Human Rights Foundation, submission on the Countering Terrorist Fighters Legislation Bill (2014) <https://www.amnesty.org.nz/sites/default/files/AI_NZ_Submission_Terrorist_Fighters_Legislation.pdf>. Accessed 15 August 2015.

The SIS can carry out targeted surveillance with a foreign intelligence warrant, issued by the Prime Minister, if the Minister is convinced that no NZ citizen/ permanent resident is subject to the warrant. It can also act on the grounds of a domestic intelligence warrant, which has to be jointly issued by the Minister and the Commissioner of Security Warrants.69  

Part of the rationale for allowing for surveillance without a warrant was that circumstances relating to terrorism may require urgent action. It is submitted however, that warrantless surveillance is a severe infringement on the right to privacy.

As such, because measures could be taken to ensure speedy authorisation of a warrant, it is respectfully submitted that this amendment does not meet the requirements of necessity and proportionality and should not be extended past the sunset clause that has been set.

Recommendation

That the power to conduct surveillance without a warrant for up to 24 hours not continue in its present form past 31 March 2017.

SAFEGUARDS

This section briefly sets out key points with regards to the operational, political and judicial standards that would ensure New Zealand meets its international obligations to promote and protect human rights while conducting surveillance.

We first note that a human rights based approach to this area of policy and legislation would emphasise both accountability and the international human rights standards already mentioned. In this context, accountability infers a system whereby the authorities (duty bearers) are accountable to the people, particularly the most vulnerable and disavantaged groups and in this instance for the intrusion into their human rights of surveillance legislation, to the extent that this unlawfully overrides their “other” human rights.

As noted, accountability through the political process has not served rights-holders well,hence our empahsis on independence oversight mechanisms.

Effective safeguards to protect the human rights related to surveillance and security are a fundamental component of the legislative and policy framework. They work to promote transparency, accountability and the rule of law and are crucial to fostering public trust and confidence in New Zealand’s intelligence agencies. The requirements of legality, necessity and proportionality are also met only where there are adequate and effective guarantees against arbitrary use and abuse.

Any surveillance regime should be subject to judicial and Parliamentary oversight, including for example oversight through independent Commissioners and Parliamentary bodies and ex ante/post facto powers of review through the courts. These are essential within all states and New Zealand has several examples where powers have been overstepped and illegal surveillance by the state has occurred.70

We therefore welcome the establishment of a regular review of New Zealand’s security bodies and the expanded powers of the Inspector-General.

69 Warrants can only be issued when Minister/ Commissioner are satisfied that this is necessary for security and that the information is not likely to be obtained by other means. New Zealand Security Intelligence Act 1969, Section 4A: Issue of intelligence warrant. http://www.legislation.govt.nz/act/public/1969/0024/latest/DLM391815.html

70 http://www.gcsb.govt.nz/assets/GCSB-Compliance-Review/Review-of-Compliance.pdf

Operational safeguards

Establishing robust operational measures and guidelines are essential for a strong legal framework as they serve to directly guide the people within the security intelligence agencies in their roles and provide a measure of accountability where they are not followed. Special Rapporteur Martin Scheinin has called for “increased internal oversight to complement the processes for independent authorization and external oversight.”71

Structural controls within the agency and factors promoting good professional ethics can contribute to ensuring that human rights protections are maintained in the conducting of surveillance.72

While traditionally safeguards have taken the form of independent authorisation, such as through a judicial warrant, increasingly States are permitting intelligence and law enforcement agencies to self-authorise.73 In a recent review in the UK, the issue of Ministerial authorisation for warrants has been a key issue.74

Potential safeguards include the requirement for warrants issued by independent authorities for targeted surveillance and reviews of the continued legality of surveillance (including of the storage of information obtained through surveillance) to be undertaken by an independent judicial authority at reasonable intervals. Other safeguards include limitations on the number and use of search terms; limits on the transfer and sharing of communications material within the state’s authorities and between states; strict criteria, including limitation periods, on the length of time such material can be stored; and clear prescriptions on destruction of material.

We submit however, that communications surveillance must always be based on a targeted warrant authorised by a judge or a similarly independent and impartial authority.

Recommendation

The law to be amended to provide for judicial oversight and robust operational procedures for all warrants of surveillance.

Time limits on information.

Where data is collected following suspicions about an individual or group, it is important to ensure there are clear time limits for the retention of the information that has been gathered for surveillance purposes. In addition, it is desirable that the be regular audits of the need to retain specific data. To be meaningful, this must be backed up by external oversight.

Protections for Whistle-blowers

71 Scheinin, M Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/13/37 (December 2009) para53. <http://bit.ly/1L0tiZ2>. Accessed 10 August 2015.72 To see examples of what oversight improvements and safeguards have been made by European Countries see paragraphs 115 – 117 <http://www.coe.int/t/dghl/standardsetting/media/Conf-FoE-2015/Venice%20Commission_Study%20No%20719_2013.pdf>.73 Scheinin, M Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/13/37 (December 2009) para51. <http://bit.ly/1L0tiZ2>. Accessed 10 August 2015.74 <http://www.theguardian.com/world/2015/jun/11/uk-intelligence-agencies-should-keep-mass-surveillance-powers-report-gchq>.

Without whistle-blowers like Edward Snowden, abuses of human rights in the sphere of surveillance would remain shielded from accountability. Their roles, as with whistle-blower in other contexts (who are provided with legal protection) are critical in ensuring adherence to the rule of law and respect for human rights.

It is therefore fundamental that whistle-blowers who uncover corruption and human rights violations by government agencies are able to reveal the truth to the public without fear of retribution and criminal sanctions.75

Credible protection for whistle-blowers who expose violations of human rights has been expressly highlighted as one tool for a much needed legal and technical framework that ensures the protection of human rights in and around actions of surveillance.76

The Tshwane Principles were established in 2013 to set out guidance for the protection of human rights and whistle-blowing, while striking a balance with legitimate government actions. Their creation was facilitated by the Open Society Justice Initiative in consultation with 22 national and international organisations from around the world, including Amnesty International, as well as the special rapporteurs on freedom of expression and media freedom and the special rapporteur on counter-terrorism and human rights.77

Recommendation

In accordance with the Tshwane Principles, the law should be amended to provide credible, and effective protection, including asylum, for whistle-blowers who expose unlawful surveillance activities.

Political safeguards

Parliamentary oversight mechanisms must have a sufficient mandate, independence and powers to ensure that the government agencies, including law enforcement and intelligence agencies, are genuinely accountable.

Current parliamentary procedure contains a number of legislative and constitutional safeguards including the s 7 NZ BORA reporting of inconcistency and the review of legislation by select committee. These are undermined however by the use of urgency to push through legislation, a mechanism that has been used far too often in recent years.

The Intelligence and Security Committee also exists to provide a check. However, it is not a full select committee, has only two parties represented on it and is chaired by the Prime Minister, undermining the independence that oversight of surveillance and security requires. This committee rarely meets openly.

In addition to these challenges, the Council of Europe has also pointed out how parliamentary supervision of strategic surveillance has been noted as problematic for a number of reasons:

75 Elsayed-Ali, S Deputy Director of Global Issues at Amnesty International “Intelligence, Security and Privacy: Why we need the whistleblowers” (29 May 2014) <http://blog.amnesty.org.nz/intelligence-security-and-privacy-why-we-need-the-whistleblowers/>. Accessed 15 August 2015.76 Parliamentary Assembly, Council of Europe Resolution 2045 (2015) para13. <http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21692&lang=en>. Accessed 15 August 201577 The Global Principles on National Security and the Right to Information (Tshwane Principles). http://www.opensocietyfoundations.org/sites/default/files/global-principles-national-security-10232013.pdf. 12 June 2013

a) The technical sophistication of signals intelligence makes it difficult for parliamentarians to supervise without the aid of technical experts.78

b) Time pressures on parliamentarian means that their ability to dedicate sufficient attention to oversight is markedly constrained.

c) The doctrine of parliamentary privilege means that Parliamentary Committees can’t be security screened adding to fears of leaks.

d) Strategic surveillance involves an interference with individual rights which has traditionally been a matter for the judiciary. 79

It is also noted that the GCSB portfolio was transferred from the Prime Minister to the Attorney-General. This is a positive step, but it remains unlikely thatany Minister will issue challenges around security and surveillance. There is little political incentive for the party in power to challenge the activities of the security agencies and it has rarely occurred in the past. Hence the need for judicial safeguards.

Judicial safeguards

To ensure a robust and effective legal framework to regulate state surveillance, all significant decisions must be made and/or reviewed by independent and impartial bodies at each stage, from the initial approval of surveillance to a post facto review of the continued legality of the measure and the underpinning system.

Where special courts are established to exercise these functions, they must be independent and impartial, must hold all hearings in public unless specific and overriding grounds legitimately exist in a particular case, and must have the power to review the legality of communications surveillance legislation, quash communications surveillance decisions, and order effective remedies.

It is also imperative to ensure that the legislation contains effective remedies and meaningful access to mechanisms of redress (accountability).

Human rights law requires that affected individuals have access to a remedy for violation of their human rights. Legislation should authorise adequate investigative powers to judicial oversight bodies to ensure that individuals who have been subjected to unlawful surveillance have access effective remedies.

CONCLUSION

Modern technology gives governments unprecedented power to monitor what we say and do, as well as who we talk to and when. These advances in technology have enabled governments to conduct surveillance by extraordinary means in the name of security. These extraordinary measures are fast becoming the norm.

Independent scrutiny is crucial to ensure that these powers are not abused. It is also imperative that the review is followed by meaningful steps to ensure New Zealand meets its international obligations to protect and respect human rights. This includes steps to ensure our human right to privacy is protected against indiscriminate mass surveillance.

To ensure transparency and to build the trust and confidence of the New Zealand public, and consistent with a human rights based approach, we also ask that the independent reviewers to make their findings public in their entirety.

78 http://www.coe.int/t/dghl/standardsetting/media/Conf-FoE-2015/Venice%20Commission_Study%20No%20719_2013.pdf para119. 79 http://www.coe.int/t/dghl/standardsetting/media/Conf-FoE-2015/Venice%20Commission_Study%20No%20719_2013.pdf para119.