Authors: Cleaver, O. & Nicklin, G.
Published in National Security Journal, 12 June 2020
meets the reasonable expectations of privacy for New Zealanders, as per definitions in the Privacy Act 1993. This is because it is difficult to define what is considered a reasonable expectation of privacy and a reasonable expectation of how information is collected.
Security and Intelligence Act 2017
The OPC referred to the Security and Intelligence Act 2017 (the Act) in reference to specific SOCMINT collections. The Act provides comprehensive oversight of the activities of New Zealand’s security and intelligence agencies – Government Communication Security Bureau (GCSB) and Security Intelligence Service (SIS).
The purpose of the Act is to protect New Zealand as a free and open democratic society. It is focused specifically on the protection of New Zealand against national security threats, to ensure international relations and the economic and general wellbeing of New Zealand. All aspects of the Act relate to the requirement for the security and intelligence agencies in New Zealand to be transparent about their activities. It provides clear definitions of various intelligence techniques including Signals Intelligence. Interestingly, it fails to include a definition of SOCMINT, or any assessment of social media use. This exclusion suggests that SOCMINT may require less oversight than more traditional forms of intelligence collections.38 It could also indicate a lack in maturity of understanding about the multifaceted elements and concerns connected with SOCMINT use. It may further indicate the SOCMINT is not regarded as an intelligence method in its own right.
Significantly, no specific legislation governs the activities of intelligence services beyond the Security Intelligence Service and Government Communications Security Bureau. The Act protects only these two agencies undertaking covert collections, including the use of false identities.39
State Services Commission (SSC)
The SSC plays a major role in providing guidance on how agencies establish social media practices and policies.40 The SSC is responsible for advising, monitoring and developing public services in New Zealand. A key part of their role is ensuring appropriate public service integrity and conduct, with the aim of building public trust in state servants. This is of importance when considering SOCMINT. The SSC is guided by the State Sector Act 1988, which is to be replaced by a new Public Service Act. The new Act will most likely maintain, if not strengthen, the integrity provisions.
The level of oversight the SSC has over the way agencies govern their SOCMINT is high level, with no specific policy or procedure guidelines. Each agency is therefore left to create their own policies and procedures for use. As with the Privacy Act 1993, it remains agencies’ responsibility to align their policies and activities with the State Sector Act 1988 or its replacement. Of note is an absence of a specific auditing function for SOCMINT use.