Authors: Cleaver, O. & Nicklin, G.
Published in National Security Journal, 12 June 2020
The findings indicate the public expects government agencies to have a transparent policy in place when undertaking covert social media collections. The OPC and SSC are the primary bodies for ensuring government agencies align their use of SOCMINT with the interests of New Zealanders through elements of the State Sector Act 1988 (soon to be the Public Service Act) and the Privacy Act 1993. However, these Acts do not ensure SOCMINT governance. There is no specific legal framework or auditing body overseeing SOCMINT use across the public service. In the absence of such a framework, the responsibility for robust and transparent policies lies with individual agencies.
The lack of a specific auditing function and specific SOCMINT governance leaves agencies having to develop their own approaches to SOCMINT use. The examples from MBIE and the Police show different approaches that align with key oversight Acts but that exhibit gaps. First, the absence of the need to report on the level of proportionality and ensure best practice likely affects agencies’ levels of transparency. Second, a limited maturity in knowledge of public expectations and international best practices for SOCMINT use makes their task even more difficult. Specific governance mechanisms that create consistency of policies, supportive legislation and regular monitoring and reporting of SOCMINT, backed by the social licence revealed in this research, would likely mitigate opportunities for misuse and ensure continued public support.
The overall findings in this article demonstrate the importance of SOCMINT and social media governance as a topic for future research. A number of questions for further research suggest themselves:
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- Does social media data sit in the public sphere or private sphere? If it is considered to be in the public domain, perspectives about privacy requirements, and thus policies, might need to change.
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- What comprises “legitimate reason”, as quoted in the survey, and how can proportionality be measured? Legitimate reasons were not specifically explored in the survey. Assumptions can be made suggesting that legitimate reasons are for compliance and/or law enforcement purposes, but how these can be measured against harm to ensure proportionality requires further research.
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- What effect does the government’s partnership obligations with Māori have on the use of SOCMINT? It was not assessed, and would be worthy of consideration, particularly regarding privacy values and proportionality in New Zealand.
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- What effect would a more diverse sample of the population have on the results, particularly from those who are vulnerable?
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- Would the results be the same for pro-active social media scanning? The research considered only reactive searches of social media data, based on an assumption of unlawful activity. Pro-active scanning of social media data, including “big data” or “mega data”, warrants considerable further research.
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- How can government agencies manage relationships with owners of social media platforms, such as Facebook?
In conclusion, evidence that social licence for the use of false social media personas for law enforcement purposes now exists. However, this evidence is indicative only and needs to be validated by more in-depth research, as outlined above. At a time when security issues such as the 15 March 2019 mosque attacks and the more recent Covid-19 pandemic are directly affecting New Zealand and other societies, it is critical that public confidence in the intelligence collection carried out by regulatory and law enforcement agencies is maintained.