We should think very carefully before making changes to laws that will affect civil liberties, writes Thomas Beagle
As the initial shock and horror of the Christchurch mosque massacre begins to subside, people naturally turn to the question “How could this happen?” How did the perpetrator become radicalised? And how did our intelligence agencies miss the impending attack? And the obvious follow-up question: “How can we stop this happening again?”
There have been calls for more government intervention. New gun control regulations have been issued and there is cross-party support for a more restrictive firearms law. There are three other possible interventions I’d like to look at.
National leader Simon Bridges is calling for more powers for the intelligence agencies. While his understanding of SpearGun is flawed, he seems to be envisaging some sort of mass surveillance of all internet traffic in an effort to find extremist white supremacist content.
Others are supporting ISP (and now government) bans on websites such as 4chan and 8chan either because they hosted the video or because they are known to host extremist communities (other large websites with this issue like Twitter were not affected).
And finally, there’s the ongoing discussion about whether New Zealand should expand its very rudimentary hate speech laws to limit aggressive and divisive language against minorities.
Any new government restrictions and controls raise concerns for our civil liberties. The New Zealand Bill of Rights Act includes freedom of thought, freedom of association, freedom from unreasonable search and seizure, and of course, freedom of expression. All of these rights are threatened by increased controls and monitoring of what people say and read online.
I believe that these rights are important and worth defending. They allow us to talk, to organise, to stand up against unfair government impositions, to campaign for a better New Zealand. They underpin our democratic system of government. It would be a great pity if we let ourselves be rushed into unnecessarily restricting them as an unthinking reaction.
However, these rights are not absolute. We already limit these rights in a number of ways such as censorship and laws against defamation. The Bill of Rights also say these may be reasonably limited by law “as can be demonstrably justified in a free and democratic society”. Justification must include that the proposed changes will be effective, possible to implement, as minimal as possible, based in law, and administered fairly. And, importantly, that the changes won’t do more damage to society and our freedom than the harm they’re attempting to stop.
So can these changes be justified?
I believe that increasing the powers of the intelligence agencies and implementing mass surveillance is probably unnecessary when other more obvious explanations are at hand. It seems clear that the agencies have been neglecting the threat represented by the international rise of the white-supremacist extreme right.
We’ve also already significantly expanded the surveillance powers of the agencies with various reforms since 2001, followed by a comprehensive revamp in the Intelligence and Security Act 2017 which merged the laws controlling the GCSB and SIS. The agencies have consistently received much of what they have asked for and have extensive powers to intercept communications and spy on people where this can be justified.
I oppose mass surveillance as unnecessary, expensive, and as an unwarranted intrusion into our lives. We’ve been finding out how Facebook uses data to manipulate entire populations, imagine how much worse it could be if a government could capture all internet traffic and combine it with its own knowledge to manipulate and intimidate people. Even the knowledge that mass surveillance has been implemented has a chilling effect on dissent. I believe that implementing mass surveillance fails the “changes won’t do more damage to society and our freedom than the harm they’re attempting to stop” test.
The nature of the work of the intelligence agencies is that we don’t know how well they have done and they can use secrecy to avoid telling us. The Royal Commission will be looking into this and, while this will take time, we should wait for the results.
The blocking of websites would seem to quickly fail the “possible to implement” and “effective” tests. While blocking might prevent casual users from visiting one of these sites, any motivated person can easily circumvent such blocks through the use of VPNs (so their internet traffic appears to be coming from a different country). While China has demonstrated that it is at least somewhat possible to create an intensely surveilled walled internet, I feel confident that no one is seriously considering that we should copy their example.
Then there is the issue of hate speech in New Zealand where some people feel that our laws have fallen behind countries with similar values to ours. For the record, I believe that speech can be harmful, that those harms tend to fall more on minorities or those without power, and that society has a duty to defend itself and its members from harm. Hate speech also tends to be of low political value: no democracy based on human rights and civil liberties can seriously entertain the idea that entire classes of people are less than human because of their race, sexuality, religious beliefs, or similar attributes.
But hate speech laws are not easy. We are sophisticated users of language and can communicate hateful ideas in ways that are too subtle to catch with the law. There are also many who would like to classify the ideas of their political opponents as hate and thus worth banning. A badly constructed law would not do enough to protect, while possibly preventing non-hateful political debate. While I am open to the idea of improving our hate speech laws to stop real harm being down to some of our communities, I think it would be a terrible idea to rush into it.
If you were hoping to read a full-throated “no more laws infringing on our civil liberties!” I fear you may be disappointed after getting this far. Civil liberties are a tool to help us collectively live together in a democracy. They’re a recognition that while governments are subject to the people en masse, governments are significantly more powerful than individuals or small groups.
They’re important enough that we should be careful about making changes to our laws that will affect them. The killer chose New Zealand because of the sort of society we are. We don’t want to give that away. Making changes as a knee-jerk reaction to a horrific event is obviously not a good idea, but neither is assuming that what worked in the past will always work in the future.
And the one parting thought I’d like to leave you with is that while some argue that the rise of the extreme right is a good reason to give our government more power to monitor people and limit certain forms of political expression, the international rise of neo-fascist governments is surely a reason to make sure we don’t carelessly give our government powers that may be used against us in the future.
Thomas Beagle is chairperson of the NZ Council for Civil Liberties. Views in this article are the personal views of the author and may not represent the views of the NZCCL.