The majority of the contentious cases of data gathering by the Government Communications Security Bureau from New Zealand citizens or residents involve metadata, a concept not clearly dealt with in the Act governing the bureau’s operations as it currently stands.
The Inspector-General of Intelligence and Security has found that of 88 New Zealanders involved in cases of interception, 58 concerned the gathering of metadata, which is arguably not “the communications of a person” under Section 14 of the Act.
This section says: “Neither the Director, nor an employee of the Bureau, nor a person
acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.”
A digest of the IGIS’s findings, issued through the GCSB, says: “An example of metadata is the information on a telephone bill such as the time and duration of a phone call, but not the content of the conversation or identification of the people using the phone.”
Asked what value such data would be to the identification of someone suspected of an offence, GCSB spokesman Antony Byers says it might “hypothetically” be evidence tracking the progress of a mobile phone from place to place.
But if a person could not be attached to the phone, of what value would the evidence be? “All these were cases where the GCSB had been asked to help another agency,” Byers replies.
So the metadata the GCSB gathered was being matched with other evidence legally gathered by another agency? “That’s an opinion you might form,” he says; “but it didn’t come from here.”
GCSB director Ian Fletcher says “the Inspector-General is of the view that the interpretation of ‘communication of a person’ is one of the issues where there are uncertainties in the interpretation of the GCSB Act, when it comes to metadata.”
Of the cases involving the other 30 individuals, the inspector-general says: “15 cases involving 22 individuals did not have any information intercepted by GCSB.
“Another four cases involving five individuals were the subjects of a New Zealand Security Intelligence Service warrant and the GCSB assisted in the execution of the warrants. The Inspector-General is of the view that there were arguably no breaches and the law is unclear.”
In cases relating to the other three individuals, “the Bureau only provided technical assistance which did not involve interception of communications, involving three of the individuals, so no breach occurred.”
Amending legislation to the Act – the Government Communications Security Bureau and Related Legislation Amendment Bill – has passed its first reading in Parliament and been sent for Select Committee consideration.