Editorial: Spying is a betrayal of trust

17:00, Sep 25 2012

It does not take a trained legal mind to understand section 14 of the Government Communications Security Bureau Act. It says in plain language that the spy agency cannot bug anyone ''who is a New Zealand citizen or a permanent resident''.

That very important restriction was placed on the GCSB's activities to assure New Zealanders that an agency that has been given extraordinary powers and resources would not reach into their homes and eavesdrop on their most intimate conversations.

The GCSB's illegal monitoring of internet tycoon Kim Dotcom and his colleague Bram van der Kolk, both of whom have permanent residency, is a shocking betrayal of that trust.

The whole saga surrounding the arrest and attempted extradition to the United States of Dotcom has been dogged by incompetence, from the embarrassingly over-the-top raid by armed police on his Auckland mansion to a High Court judge's ruling that the search warrants were invalid.

But it is the involvement of the GCSB and the failure of other government agencies to ensure the law was properly followed when it came to monitoring Dotcom that should most concern New Zealanders.

According to documents made public yesterday, the GCSB was asked to spy on Dotcom and van der Kolk by the Organised and Financial Crime Agency in 2011. It received an assurance they were ''foreign nationals'', then began monitoring them.


It is now for the Inspector-General of Intelligence and Security, Paul Neazor, to determine whether the GCSB did enough to ensure it complied with the law. One factor he should consider is whether it made extensive enough efforts to establish the men's status. Did it specifically ask if they were citizens or permanent residents, or simply whether they were ''foreign nationals''? Given they were born overseas, that term can be applied to them equally accurately, but is not the status the GCSB had to confirm to establish whether they were legitimate targets.

Prime Minister John Key should also be asking GCSB director Ian Fletcher why he was not told of the blunder till September 17 - nearly eight months after the bureau must have first become aware of it. In the days after Dotcom was arrested on January 20, media reports referred extensively to his status as a permanent resident. Either the GCSB failed to spot its mistake, or it realised immediately, but did nothing. Neither answer is satisfactory.

The GCSB is an extremely powerful organisation. It is also highly controversial. It has sweeping powers to intercept communications without a warrant and the listening stations it runs at Waihopai in Marlborough and Tangimoana in Manawatu are able to eavesdrop across the Pacific.

In return for reluctantly accepting that the powers and resources at the bureau's disposal are necessary to monitor external threats to national security and fight international terrorism, New Zealanders were promised that it would not spy on them. That promise has now been broken, and unless someone is held accountable, it will have no credibility.

The Dominion Post