New Zealand’s Post-‘9/11’ Anti-terrorism / Security Laws
– A Privacy Advocate’s Perspective

Tim McBride

Advocate; barrister; legal commentator; and law lecturer

Privacy Forum

Organised by the NZ Law Commission and the Office of the Privacy Commissioner

Wellington

1 May 2007

Speech Notes

My background / perspective

1967 - (Well, a few years’ earlier, if I’m honest) – As an impressionable schoolboy, I read George Orwell’s 1984 - His terrifying vision of a surveillance society where individual privacy had completely disappeared, chilled me to the bone. No other book from my childhood days had quite that impact.

1977- Privacy and Freedom of Information Course – Stanford Law School, California – My first exposure to privacy law- a key component of the course was the US Privacy Act 1974 – one of principal federal legislative responses to the privacy abuses revealed during the ‘Watergate’ scandal.

1977 – NZ Security Intelligence Amendment Bill

• SIS to be given legal authority to ‘intercept and seize communications’ on very broadly defined grounds
• Obligations on members of the public to assist SIS
• Safeguards

Public reaction to bill – ‘invasion of the right to privacy’

Large demonstrations and public meetings (eg, Wellington’s Opera House filled to overflowing) – Manawatu District Law Society (I was member at the time) unanimously condemned key aspects of the bill.

Cf. Extent of concern re post-‘9/11’ laws with privacy / human rights implications

Why the difference? Has our fear that we may be targets of terrorism led many of us to accept uncritically whatever new anti-terrorism laws the government of the day may seek to enact?  

Combating Terrorism - International obligations

International Conventions pre-‘9/11’

Post-‘9/11’ UN Security Council Resolutions – 1368 / 1373

Obligations on NZ – [As paraphrased by me] “We had no choice. We were doing what we were required to do to fulfil our international obligations. The new laws are there for your protection – to keep you safe from those who might threaten your way of life – whatever their ideological agenda might be.”

Effect on public debate / concern

Announcement by Minister of Justice (23/12/03) re full compliance with all UN Conventions on Terrorism – yet more laws introduced 2004, 2005, and 2007.

NZ post’9/11’ - Outpouring of new laws with major human rights / privacy implications

Similar laws enacted by our traditional allies – Australia, Canada, UK, US

[Nb. Canadian SC has recently unanimously held that key aspects of one of Canada’s major post-‘9/11’ laws – the Immigration and Refugee Protection Act – are unconstitutional (ie, in violation of its entrenched Charter of Rights and Freedoms, s7 (Charkaoui [2007] SCC 9)).]

NZ Laws with human rights / privacy implications enacted post-‘9/11’ include –
 

• Terrorism Suppression Act 2002 – originally introduced into Parliament as the Terrorism (Bombing and Financing) Bill in April 2001 (ie, pre-‘9/11’) – attracted little attention – no public submissions received despite an invitation – following ‘9/11’, major proposed amendments introduced by way of SOP – following public pressure, submissions were invited (over 140 received) - primarily concerned with criminalising a number of acts relating to terrorism + facilitating designation of individuals as terrorists In area of surveillance, it gives additional responsibilities to intelligence agencies (eg, the SIS, + the GCSB), the police + places new surveillance obligations on banks, financial institutions, and lawyers
• Government Communications Security Bureau Act 2003 – GCSB finally placed on a statutory basis after enjoying a murky non-statutory Executive status for some decades -  GCSB’s primary role is the collection of foreign signals intelligence – concerns raised when bill introduced (ie, the “usual suspects”, eg, the Green Party, the long-established NGO, the Anti-Bases Campaign) – GCSB’s key functions are all, more or less, associated directly with surveillance – that is, deciphering, translating, examining and analysing foreign communications – given broad powers to spy on foreigners (ie, ‘foreign communications’ emanating from a ‘foreign organisation’); but expressly not permitted to spy on NZers – Of particular concern to some submitters (eg, the HRC) was the agency’s ability to intercept the communications of international organisations in which Kiwis may be involved – GSCB subject to oversight by both the Inspector-General of Intelligence and Security, and Parliament’s Intelligence and Security Committee – Despite the existence of these accountability mechanisms, some critics doubt their effectiveness
• Telecommunications (Interception Capability) Act 2004 – Does just that – makes telecommunications capable of interception by State surveillance agencies – New obligations are placed TELCOs; internet service providers (ISPs); and phone companies – they must ensure that their services and networks have interception capabilities
• Crimes Amendment Act 2003 – originally introduced into Parliament long before ‘9/11’, following years of investigation, as the Crimes Amendment Bill (No6) 1999 – proposed changes largely non-controversial, most long overdue – However, in November 2000, Supplementary Order Paper No 85 to the bill was introduced – this was promptly dubbed the “cyber snooping bill” (by critics, at least) – Why? – Because the bill significantly increased state surveillance powers, by exempting major state agencies from the new ‘computer hacking’ provisions in the 1999 Bill – Old-style public meetings were hastily organised, at which much passion + rhetoric was evident – the cyber-world fraternity saw itself under threat – All this occurred in the ‘days of innocence’ before ‘9/11’ – Ministry of Justice in advice to the Select Committee clearly wondered what all the fuss was about – The Bill (+SOP No 85) ‘strengthened privacy protection’ (eg the new hacking offences) – Yes, it said there were to be exemptions for certain state agencies (the police, the SIS, + the GCSB), but these related ‘ either to existing powers or to activities that these agencies could undertake without specific authorisation’ (+ the exemptions were ‘hedged with appropriate safeguards’) – As always, the Q is - how effective are these supposed safeguards likely to be in practice? – It is correct that the new law does strengthen the level of privacy protection in some areas (eg, the unauthorised interception of communications by third parties now applies to any form of ‘interception device’, not just ‘listening devices’
• Counter-Terrorism Bill 2003 – enacted as amendments to the Crimes Act; the Summary Proceedings Act; the NZSIS Act (+ others) – C-T Bill aimed to do 3 key things – (1) to expand considerably police powers to ‘lawfully intercept’ private communications where terrorist offences were suspected; (2) to greatly extend the ‘lawful use’ of tracking devices (which formerly had been limited to serious drug offences); and (3) to create a legal duty on individuals to assist the police (when they have a warrant) to access computer data Only 24 submissions received on the bill – most were hostile to key aspects of it – Some submitters worried about the impact of aspects of the bill on fundamental rights and freedoms – despite Crown Law’s view that there was nothing in the bill that was ‘inconsistent with the Bill of Rights’ (eg, the proposed tracking regime was seen as a ‘justified limit’ on the right ‘to be secure from unreasonable search and seizure’ – [further info on p6 / paras 6-8]
• Border Security Bill 2003 – enacted as amendments to the Customs & Excise Act and the Immigration Act – BS Bill intended to ‘enhance border security’ – sophisticated pre-boarding checks on anyone intending to travel to NZ – law intended to ‘reduce identity fraud’, an increasingly serious problem - [Comment on our recent experience at AK airport
• Maritime Security Act 2004 – intended to establish a framework that ‘will reduce the risk of security incidents affecting merchant ships or port facilities’ – Law also enables NZ to fulfil its obligations under a post-‘9/11’ international agreement for maritime security –detection of alleged an ‘security incident’ must, of necessity, involve greater surveillance (eg, of “Greenpeace’ vessels involved in protest action)
• Identity (Citizenship and Travel Documents) Bill 2004 – enacted as amendments to the Citizenship Act and the Passports Act – Bill, as introduced, raised a number of major substantive and procedural concerns – Bill’s proponents had argued that it was important to have appropriate legislation to implement international Conventions relating to suppression of terrorism and people smuggling – one major concern was the new power given to Minister of Immigration to cancel a passport, or other official travel document, on national security grounds – this could be done on the basis of classified information (eg, from foreign and domestic intelligence sources) – People appealing against a cancellation would be denied access to this information – They would be limited to a summary only, which did not disclose sensitive information (cf, the procedures found wanting by the courts during the legal challenges mounted by detained Algerian refugee, Ahmed Zaoui)    

Bills currently before Parliament (eg, Terrorism Suppression Amendment Bill 2007; Aviation Security Amendment Bill 2006)

Do our post-‘9/11’ laws strike an acceptable “… balance between the enjoyment of freedoms and the legitimate concerns for national security…”? (Mary Robinson, Former UN High Commissioner for Human Rights)

Problems with the ‘balance’ approach
When you attempt to balance the control of surveillance against the public interest in safety and security in an age of fear, does it mean that privacy / meaningful control of surveillance is almost always bound to lose?

Are the post-‘9/11’ anti-terrorism / security laws the “… least intrusive to achieve the objective…” (to use Mary Robinson’s words)?

Have our lawmakers given only passing consideration to importance of individual privacy as a value underpinning human dignity, and other key values such as freedom of association and freedom of speech?

In the remarkably prescient words of the Law Commission way back in 1991 – ‘…The danger is that States will overreact….It is possible to imagine government officials doing more to destroy democracy in the name of counter-terrorism than is presently likely to be achieved by the terrorists themselves …’ (Final Report on Emergencies).

As a human rights lawyer, I have many concerns about the dramatic growth in the scope and extent of our post-‘9/11’ anti-terrorism / security laws.

However, today, I am speaking as a privacy advocate, so I will restrict my comments to the privacy / surveillance dimension.

Surveillance – what does it cover?

How do you define it? The NSW Law Reform Commission has described it as ‘an extremely nebulous concept’ which defies precise definition’ (Report No 98 (2001) para 2.37).

Surveillance (according to the NSWLRC), involves ‘using a surveillance device to monitor, either through listening to, watching, or collecting data (in whatever form), about people, places or objects’ (para 2.38).

How does it impact on privacy rights and entitlements? What about the impact of intrusive surveillance on traditional civil liberties (eg, freedom of peaceful assembly, and freedom of association)?

Along with many other advocates and commentators, I consider that the right to privacy includes the right to free from unwanted surveillance.

No matter where we stand on the political spectrum, we should all have a deep interest in how surveillance is becoming ever-more important in our daily lives.

If you need convincing, I suggest that you read Anna Funder’s remarkable book, Stasiland.

In the words of Paul Chadwick, the former Privacy and Access Commissioner for the State of Victoria – “A people surveilled become a people paranoid”

Similar sentiments have been expressed by Malcolm Crompton, the former Australian Privacy Commissioner –
“The threat of terrorism may decline … but its monument may be a surveillance society”
“Individuals want both secure and private lives” 

In the words of Australian privacy expert, Dr Roger Clarke, –

• Psychologically, people need private space….
• Sociologically, people need to be free to behave, and to associate with others, … without the continual threat of being observed….
• Economically, people need to be free to innovate….
• Politically, people need to be free to think and argue, and act. Surveillance chills behaviour and speech, and threatens democracy… (Australian Law Reform Commission, Review of Privacy: Issues Paper (2006), para 1.95).

Our Privacy Commissioner has recently spoken of her concern that our country ‘risks descending into a surveillance society’ (10/4/07).

She echoes the concerns of UK’s Information Commissioner who in 2004 expressed his concern that the UK was in danger of “sleep-walking into a surveillance society”.

In late last year, he came out with an even more sobering forecast – “today I fear that we are waking up to a surveillance society that is already all around us” (2/11/06).

I share that assessment. In my view we already live in a surveillance society. It is not the result of some covert conspiracy. Surveillance is, in the words of the panel of experts commissioned by the UK Information Commissioner –

“… a product of modernity”
“… the result of the desire for efficiency, speed, control, and co-ordination”

So, what is so troubling about a surveillance society?

“If we have nothing to hide, surely we have nothing to worry about!”

“…The truth is (as a former Canadian Federal Privacy Commissioner reminds us), that we do have something to hide, not because it is criminal or even shameful, but simply because it is private…. The right not to be known against our will, indeed the right to be anonymous except when we choose to identify ourselves is at the very core of human dignity, autonomy, and freedom …”. In other words, we have, as US Judge Cooley remarked way back in 1888 – the ‘right to be let alone’.

Aren’t all of us in this room ‘beneficiaries’ of the enhanced public and private sector surveillance of our daily lives? In what, if any, situations are we likely to become ‘victims’ of the surveillance society? [Remember what happened to Will Smith in the film, Enemy of the State]

While we may not be ‘victims’ [yet], most of us here today are unlikely to be unaware of many of the forms of surveillance technology that are being used ever-increasingly to track and record our activities and movements.

For any doubters present today, I would encourage them to read the part of the UK Information Commissioner’s Report entitled– Glimpses of Life in the Surveillance Society, 2016. All going well, many of us are likely to be alive then. Is that the sort of society we want to live in? Is it one that we want our children and grandchildren to grow up in?

In trying to answer the Q – what is wrong with a surveillance society? – The UK Information Commissioner’s panel of experts found that –

• the dominant modes of surveillance expansion … are producing situations where distinctions of class, race, gender, geography, and citizenship, are currently being exacerbated and institutionalised – [In other words, ‘surveillance … differentiates between groups, advantaging some and, by the same token, disadvantaging others …’ (para 4.3.1).] ; (They also found that) -
• today’s surveillance processes and practices bespeak a world where we know we’re not really trusted. Surveillance fosters suspicion….; (and that ) –
• surveillance practices have implications for privacy and a host of other important values: justice, dignity, self-determination, social inclusion, security and others … (para 40.3).

Wearing my human rights lawyer hat, I am well aware of the corrosive effect that intrusive surveillance can have on traditional civil liberties such as freedom of expression, and freedom of association. I have noticed in recent years an increased unwillingness by people to speak out; to become activists; or even join community groups which engage in political campaigns; for fear of coming under some form of unwanted surveillance.

[Comment on my brief experience in the former East Germany; the Czech Republic; and Hungary]   

Interestingly, (for past and present Law of Torts teachers here today), the panel took the view that “the reasonable expectation of privacy” which ‘ … has come increasingly to define the framework within which privacy law is discussed and promoted, risks being deflated as people, … “get used to” more and more limitations on their freedom from surveillance …’ (para 42.4).

Certainly, recent surveillance developments ‘ … have fed a self-fulfilling and sometimes self-serving defeatism, expressed in the widespread attitude – cultivated by certain interests – that privacy is dead; get used to it …’ (para 42.4). [I have seen this seen this world-weary cynicism in some of my Privacy Law students in recent years.]

As the UK panel of experts points out, ‘… this weakens the constituency of public, political and business support that [privacy law] might otherwise enjoy and that it needs …’

Conclusion: I could go on, and on, but I think I have made my point. As I said at the outset, my interest/ fascination with privacy began over 40 years’ ago – thanks to George Orwell’s masterpiece.

While Orwell’s notion of “Big Brother” may have disappeared, are we not in danger of creating a society where meaningful privacy at least, has disappeared. Future generations may well ask – how come they gave up something so precious, so deeply connected with human autonomy?

I thank you for your attention (+ await your comments and questions with some trepidation).

Tim McBride
Barrister, Legal Commentator, and Human Rights Advocate

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