Why sweeping surveillance laws aren’t the answer

National leader Simon Bridges is calling for New Zealand’s intelligence agencies to be given greater powers, claiming our spies currently have their hands tied behind their backs. But it’s far from clear that greater surveillance would have stopped the Christchurch attack, and hasty changes could be disastrous, Sam Sachdeva writes.

It’s often said that the role of opposition leader is the worst job in politics - and that is never more clear than in the wake of a national tragedy.

Political machinations are - rightly - far from the minds of New Zealanders in the wake of the deadly Christchurch terror attack.

But with Prime Minister Jacinda Ardern’s star shining as brightly as ever at home and abroad, and her omnipresence in news and social media, Bridges could be forgiven for feeling enveloped by her shadow.

That may go some way towards explaining the National leader’s hawkish stance on the powers of our security and intelligence agencies.

Bridges has called for a swift review of the surveillance laws restricting our spies, claiming to RNZ that Kiwi spooks have “two hands tied behind their backs” compared to their overseas counterparts.

The Royal Commission of Inquiry into the attack commissioned by the Government would take too long, he argued, suggesting swifter action including reconsideration of Project Speargun - a proposed cyber-defence system claimed by critics to be a mass surveillance regime which was scrapped by Prime Minister John Key in 2013.

Bridges has succeeded in distinguishing himself from Ardern, who said New Zealanders did not want the country to be a “surveillance state”.

But on the substance of whether law changes would do much to prevent a similar attack, Bridges’ argument seems decidedly shaky.

Simon Bridges thinks our spies may need more eyes when it comes to surveillance. Photo: Lynn Grieveson.

It’s far from unusual for countries to tighten their security laws after a terror attack, with France, Belgium and the United Kingdom among nations to have passed more stringent legislation following domestic incidents.

Perhaps most infamously, the United States pushed through the USA PATRIOT Act after the September 11 attacks, granting sweeping powers to a number of government agencies despite objections from civil liberties advocates.

But there’s little evidence to suggest that more sweeping surveillance powers play a significant role in stopping other attacks.

A string of terror attacks in the UK in 2015 came despite the country having what the New York Times described as “some of the most powerful surveillance laws in the world, with weak judicial oversight and little criticism on privacy issues” from the public.

“More data and more surveillance will not help to find the proverbial needle or needles in the haystack."

In a 2017 Der Spiegel column, German journalist Sascha Lobo said 24 Islamic terrorists involved in murders in the European Union over a three-year period carried out the attacks despite all being previously known to authorities - a state of affairs that is not all that uncommon.

Of course, it’s difficult to prove a negative - but there would seem to be a number of other areas where law changes or greater resources would be more helpful.

Reinhard Kreissl, the chief executive of the Vienna Centre for Societal Security Research, has argued that better training of, and organisational structures for, law enforcement experts deliver higher returns than expanding the amount of data they gather.

“More data and more surveillance will not help to find the proverbial needle or needles in the haystack,” Kreissl said, a view echoed in a thorough piece on the New Zealand situation by The NZ Herald’s David Fisher.

Human flaws at the fore

Instead, it is humans rather than computers that remain the most important factor in intelligence work - and there is some reason to think that our spies’ all too mortal foibles may come to the fore during the Royal Commission.

There have already been questions about whether the NZSIS and GCSB focused too closely on the threat of Muslim extremism, and not enough on the rise of white supremacy and far-right extremists in recent years.

NZSIS boss Rebecca Kitteridge has said the agency increased its efforts to understand the threat posed by the far-right in recent months, but representatives of New Zealand’s Muslim community have said concerns raised much earlier were not taken seriously.

Of course, it’s unsurprising that spy agencies might want greater powers: GCSB head Andrew Hampton has already noted that our spooks “do not currently have the legal authority, technical means or resources to actively monitor all online activity that occurs in New Zealand”.

It may well prove over the course of the Royal Commission that there is a case to be made for law reforms.

NZSIS head Rebecca Kitteridge and GCSB boss Andrew Hampton may ask for greater powers or resources, but they will have to prove they've made the most of what they already have. Photo: Lynn Grieveson.

But rushing to give intelligence agencies extra powers, without fully understanding how they have succeeded or failed with the ones they already have, would be putting the cart before the horse.

Bridges could do worse than look at the aftermath of the PATRIOT Act, a piece of legislation rushed through with little scrutiny and widely panned for its overreach and apparent abuse.

An Amnesty International report into France’s state of emergency following the 2015 Paris attacks found the powers it granted were used “in a disproportionate and discriminatory manner” to target Muslims without concrete evidence of criminal behaviour.

New Zealand’s current target may be white supremacists and the far-right, but there are no guarantees that future administrations or officials will be judicious in how they use any new laws.

A Royal Commission will undoubtedly take some time, but a painstaking examination is more appropriate than a hasty rush to judgment.

Justice Minister Andrew Little has said of surveillance reforms - arguably a far more contested and complex space than the Government’s gun laws - that “the worst time to be considering law changes is in the immediate aftermath of a monstrous event like this”.

It’s a sentiment Bridges may want to think about before he again tries to leap ahead of the pack.

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