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Spying amendment lacks foresight

The Government Communications Security Bureau (GCSB) may not occupy an “enormous, pyramidal structure of white concrete”, but 1984 has been invoked perhaps more times recently than since, well, the year 1984. The pyramid houses the Ministry of Truth in George Orwell’s dystopian fiction. Still, while it is premature to equate the GCSB’s expanded remit under the GCSB Amendment Bill 2013 with Orwell’s omniscient surveillance apparatus, the Bill does pose fundamental questions about personal life and the state in a liberal democracy. For example: What is the sort of state we want to live in?  

I want to present two ways of thinking about this question. The first concerns the balance between freedom and security. Labour’s dissenting view on the Bill identifies this trade-off. Labour holds that the Bill fails to balance these goods adequately; the Bill places too much importance on security. What this means is that the Bill may furnish greater security to New Zealanders, but it does so at a cost to the freedom of New Zealanders. 

The second way of thinking about the Bill considers the separation between public and private spheres. There seems to be an ever-decreasing space for private, truly private, activity. That is, activity immune to the perception of state actors. Take one instance. The secure email provider Lavabit closed some weeks ago, ostensibly the result of refusing to supply the National Security Agency (NSA) with a “back door” or allow it to intercept subscribers’ passwords. It’s a significant concern that this amendment enables overseas agencies greater access to information about our citizens. In other words, the private lives of New Zealanders may be increasingly exposed not only to GCSB investigations but also to those of international agencies. 

Even if we grant that greater security and a diminished private sphere are desirable at this time, we should nonetheless be wary of the potential for abuse and unintended consequences. Who can say where this Bill will lead in 20 years, let alone 50? We can’t know what the future will hold. 

Consider this. Leaving the issue of metadata aside, the Bill permits the GCSB to intercept all New Zealanders’ communications bar those that are “private”. Notwithstanding the Bill’s definition of “private communications”, the remit of the GCSB is as broad as the language is vague. The very elasticity of the wording could admit a vast swathe of information available to interception. Take an example from overseas. Russia recently passed a piece of legislation that allowed the government to take action against online content that “denigrated family values”. Sounds great, right? Just ask who decides what exactly denigrates family values and what doesn’t, and consider Russia’s motley human rights record.

Language is important. The very vagueness of the GCSB Bill is cause for concern because it heightens the likelihood of significant unintended consequences, consequences that may outweigh security, reduce the private sphere and mould a state we wouldn’t want our children or grandchildren to grow up in.

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