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NEW
ZEALAND LAUNCHED MASS SURVEILLANCE PROJECT WHILE PUBLICLY DENYING IT
BY
GLENN GREENWALD AND RYAN GALLAGHER
14
September, 2014
AUCKLAND,
New Zealand—The New Zealand spy agency, the Government
Communications Security Bureau (GCSB), worked in 2012 and 2013 to
implement a mass metadata surveillance system even as top government
officials publicly insisted no such program was being planned and
would not be legally permitted.
Documents
provided by NSA whistleblower Edward Snowden show that the government
worked in secret to exploit a
new internet surveillance law enacted
in the wake of revelations of illegal domestic spying to initiate a
new metadata collection program that appeared designed to collect
information about the communications of New Zealanders. Those actions
are in direct conflict with the assurances
given to the public by
Prime Minister John Key (pictured above), who said the law was
merely designed to fix “an ambiguous legal framework” by
expressly allowing the agency to do what it had done for years, that
it “isn’t and will never be wholesale spying on New Zealanders,”
and the law “isn’t a revolution in the way New Zealand conducts
its intelligence operations.”
Snowden,
in
a post for The Intercept published today,
accused Prime Minster Key of fundamentally misleading the public
about GCSB’s role in mass surveillance. “The Prime Minister’s
claim to the public, that ‘there is no and there never has been any
mass surveillance’, is false,” the former NSA analyst wrote. “The
GCSB, whose operations he is responsible for, is directly involved in
the untargeted, bulk interception and algorithmic analysis of private
communications sent via internet, satellite, radio, and phone
networks.”
Snowden
explained that “at the NSA, I routinely came across the
communications of New Zealanders in my work with a mass surveillance
tool we share with GCSB, called
‘X KEYSCORE.”"
He further detailed that “the GCSB provides mass surveillance data
into XKEYSCORE. They also provide access to the communications of
millions of New Zealanders to the NSA at facilities such as the GCSB
facility in Waihopai, and the Prime Minister is personally aware of
this fact.”
Top
secret documents provided by the whistleblower demonstrate that the
GCSB, with ongoing NSA cooperation, implemented Phase I of the mass
surveillance program code-named “Speargun” at some point in 2012
or early 2013. “Speargun” involved the covert installation of
“cable access” equipment, which appears to refer to
surveillance of the country’s main undersea cable link, the
Southern
Cross cable.
This cable carries the vast majority of internet traffic between New
Zealand and the rest of the world, and mass collection from it would
mark the greatest expansion of GCSB spying activities in decades.
Upon
completion of the first stage, Speargun moved to Phase II, under
which “metadata probes” were to be inserted into those cables.
The NSA documents note that the first such metadata probe was
scheduled for “mid-2013.” Surveillance probes of this sort
are commonly used by NSA and their partners to tap into huge flows of
information from communication cables in real time, enabling them to
extract the dates, times, senders, and recipients of emails, phone
calls, and the like. The technique is almost by definition a form of
mass surveillance; metadata is relatively useless for intelligence
purposes without a massive amount of similar data to analyze it
against and trace connections through.
The
NSA declined to comment for this story. A GCSB spokesperson would
only say: “We don’t comment on matters that may or may not be
operational.”
Over
the weekend, in anticipation of this report, Key admitted
for the first time that
the GCSB did plan a program of mass surveillance aimed at his own
citizens, but claimed that he ultimately rejected the program before
implementation. Yesterday, after The
Intercept sought
comment from the NSA, the Prime Minister told
reporters in Auckland
that this reporting was referring merely to “a proposed widespread
cyber protection programme that never got off the ground.” He
vowed to declassify documents confirming his decision.
But
the documents indicate that Speargun was not just an idea that
stalled at the discussion stage. It was a system GCSB actively worked
to implement. One top secret 2012 NSA document states: “Project
Speargun underway.” Another top secret NSA document discussing the
activities of its surveillance partners reports, under the heading
“New Zealand,” that “Partner cable access program achieves
Phase I.
Critically,
the NSA documents note in more than one place that completion of
Speargun was impeded by one obstacle: The need to enact a new spying
law that would allow the GCSB, for the first time, to spy on its own
citizens as well as legal residents of the country. As one NSA
planning document put it, completion of Speargun was “awaiting new
GCSB Act expected July 2013.”
That
legislation arose after it was revealed in 2012 that the GCSB
illegally
surveilled the communications
of Megaupload founder Kim Dotcom, a legal resident of New Zealand.
New Zealand law at the time forbade the GCSB from using its
surveillance apparatus against citizens or legal residents. That
illegal GCSB surveillance of Dotcom was followed by a
massive military-style police raid
by New Zealand authorities on his home in connection with Dotcom’s
criminal prosecution in the United States for copyright violations.
A
subsequent government investigation found that the GCSB not only
illegally spied on Dotcom but also
dozens of other citizens and legal residents.
The deputy director of GCSB resigned.
The government’s response to these revelations was to refuse
to prosecute
those who ordered the illegal spying and, instead, to propose a new
law that would allow domestic electronic surveillance.
That
proposal was intensely controversial, prompting
large public protests
and a concerted campaign against the law. One news
broadcaster called it
“one of the most polarizing pieces of legislation in recent times.”
It was of sufficient interest to the NSA that in March 2013, the
director of Prime Minister Key’s Intelligence Coordination Group
traveled
to NSA headquarters to offer an update
on the legislation.
To
assuage the public, Key and other top officials repeatedly insisted
that the real purpose of the law was merely to provide oversight and
to clarify that targeted domestic surveillance which had long been
carried out by the agency was legal. Key categorically
denied
that the law would allow mass metadata collection on the New Zealand
public: “There have been claims this Bill offers no protection of
metadata and allows for wholesale collection of metadata without a
warrant. None
of that is true.”
Key
told the public that the new law would not permit mass, warrantless
metadata surveillance: “So when the GCSB wants to access metadata,
it is treated with the same level of seriousness and protection as if
the GCSB was accessing the actual content of a communication. And
there are protections around that.”
In
response to Key’s claims, legal experts extensively
documented that
the new law would indeed provide ”a major increase in the
overall role and powers of the GCSB” and would allow the “very
broad ‘wholesale’ powers” which Key denied. Yet the Key
government, and the prime minister himself, steadfastly insisted that
the law permits no mass surveillance. At one point, Key even
promised to resign
if it were found that the GCSB were engaging in mass surveillance.
Based
on Key’s assurances, the New Zealand Parliament narrowly
voted to enact
the new law on August 21 of last year, by a vote of 61-59.
Immediately prior to passage, Key
acknowledged that
the new law has “‘alarmed’ some people but blame[d] the
Government’s opponents for stoking their fears” and again
“rejected that by writing into law what the GCSB had already been
doing meant an extension of its powers.”
But
in high-level discussions between the Key government and the NSA, the
new law was clearly viewed as the crucial means to empower the GCSB
to engage in metadata surveillance. On more than one occasion, the
NSA noted internally that Project Speargun, in the process of being
implemented, could not and would not be completed until the new law
was enacted. The NSA apparently viewed that new law as providing
exactly the powers that Key repeatedly and publicly denied it would
vest.
New
Zealand’s national election will be held on September 20. Over the
last several weeks, Key has been embroiled in a scandal that saw a
top minister resign,
after independent journalist Nicky Hager published a book, Dirty
Politics,
documenting
ties
between Key officials and a right-wing blogger known for attacking
public figures and showing that Key officials declassified
information for political purposes.
Revelations
of illegal GCSB spying prompted the creation of the anti-surveillance
Internet Party, which formed an alliance with the left-wing,
indigenous Mana Party and is predicted
to win
several seats in Parliament. The party is funded by Dotcom, and has
organized a “Moment of Truth” event for this Monday to discuss
revelations of surveillance and other secret government actions.
(Disclosure: Glenn Greenwald, one of the authors of this story, is
scheduled to speak at that event pursuant to an invitation from the
Internet Party, which paid his travel expenses to attend and agreed
to donate a speaking fee to a designated charity.)
The
disclosure that the GCSB plotted a program of mass surveillance based
on this new law is likely to raise further questions about the ethics
and credibility of the Key government. The new surveillance planning
took place at high levels of the government, and expressly intended
to use the new surveillance law as its basis even as Key himself
insisted that the law provided no such authority.
Photo: Rob
Griffith/AP
Additional
reporting provided by Andrew Fishman
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