Key declassified secret information in error | The Jackal

17 Sep 2014

Key declassified secret information in error

It was unprecedented to see the Prime Minister, John Key, release sensitive information concerning a spying tool called CORTEX simply to bolster his claim that there was no mass surveillance in New Zealand. At the time, some very experienced commentators exclaimed that Key releasing secret documents in this way was in the very least questionable if not unconstitutional.

However, when the Official Secrets Act was updated to the Official Information Act (PDF), the provision that stated a person committed a crime for releasing state secrets in this way was largely removed. Previously, if an official used classified information for their own benefit, they were in breach of the law.

Here's what the old law (PDF) states:

3 (1) If any person for any purpose prejudicial to the safety or interests of the State-

(c) Obtains, collects, records, or publishes, or communicates to any other person any secret official code word or password, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy,-

he commits an offence against this Act and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years, or, in the case of a company or corporation, to a fine not exceeding five thousand pounds.

That's what makes the PM's release of sensitive information highly questionable. Unfortunately an oversight means this section of the Official Secrets Act wasn't updated into current law, otherwise Key's actions would have also been illegal as well as unconstitutional. I guess nobody envisioned such a turn of events, whereby a PM would use state secrets for his own political purposes.

By taking advantage of that oversight, Key isn't just ignoring his responsibilities, he's ignoring the GCSB's very own guidelines that state the release of such documents could put at risk New Zealand's security and damage our international standing.

Yesterday, the NZ Herald reported:

Secret dangers of released GCSB documents

Secret documents which John Key says he made public to protect his reputation threatened massive damage to New Zealand's wellbeing if made public without permission, according to the GCSB's own threat estimates.

The four documents were made public yesterday by the Prime Minister after Pulitzer Prize-winning journalist Glenn Greenwald published claims the public were subjected to mass surveillance.

They all show they were previously marked at the "Secret" level of classification.
The GCSB guide to security classifications says the "compromise" of "Secret" information could "damage the security, defence or international relations of New Zealand and/or friendly governments".

Here's the actual guideline (PDF) as it relates to the declassified CORTEX documents:

GUIDELINES FOR PROTECTION OF OFFICIAL INFORMATION

RESTRICTED and SENSITIVE

The Official Information Act allows information to be protected to the extent consistent with the public interest and the preservation of personal privacy. Classifications are used to grade information on the basis of the damage that would result from unauthorised disclosure and to specify the protective measures to be applied. In themselves, classifications do not allow official information to be withheld; rather, the information must be considered on its merits using the criteria in the Act.

NATIONAL SECURITY

Compromise would damage the security, defence or international relations of New Zealand and/or friendly governments

TOP SECRET — Damage national interests in an exceptionally grave manner
· Directly threaten the internal stability of NZ or friendly countries
· Lead directly to widespread loss of life
· Cause exceptional damage to the security of NZ forces or allies
· Cause exceptional damage to the operational effectiveness of NZ forces or friendly forces
· Cause exceptional damage to the continuing effectiveness of extremely valuable security or intelligence operations
· Cause exceptional damage to relations with other governments
· Cause severe long term damage to significant national infrastructure
Services Commission 2001-05-28

SECRET — Damage national interests in a serious manner
· Raise international tension
· Seriously damage relations with friendly governments
· Seriously damage the security of NZ forces or friendly forces
· Seriously damage the operational effectiveness of NZ forces or friendly forces
· Seriously damage the effectiveness of valuable security or intelligence operations
· Seriously damage the internal stability of NZ or friendly countries
· Shut down or substantially disrupt significant national infrastructure.

The GCSB's rules spell out the specific risks based on the classification of the CORTEX documents, and clearly show that Key releasing such information poses a serious risk to New Zealand's security.

Keep in mind that nobody was actually asking questions about the anti-malware system CORTEX, they were asking questions about mass surveillance. There was in fact very little public interest in the CORTEX documents, certainly not enough to justify their public release.

Therefore Key has put at risk New Zealand's security simply for his own benefit. In so doing, there's no question that the Prime Minister has acted in error and against the nations interests. He has in fact ignored the GCSB's guidelines and the law as it would be judged, which is just another good reason for him to resign!

You can sign the petition to that effect here.