New Zealand Launched Mass Surveillance Project While Publicly Denying It

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.

 

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