Legal Beagle by Graeme Edgeler

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Legal Beagle: Kim Dotcom and the GCSB

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  • Lyndon Hood,

    I imagine the indemnity would be the (court-ordered?) one referred to here http://www.scoop.co.nz/stories/PO1208/S00532/dotcoms-revenge.htm - whether it arose from or was signed in awareness of the GCSB being involved I can't say but I gues the English timeline fits.

    Wellington • Since Nov 2006 • 1096 posts Report Reply

  • Sacha, in reply to Graeme Edgeler,

    You appear to have an inaccurate impression of the scale of damage awards in such cases in New Zealand

    or an accurate one of the size of said surplus. :)

    Ak • Since May 2008 • 16771 posts Report Reply

  • James George,

    Sadly, I think most people have made an assumption that has lead them to conclude that the degree of crass illegality committed by NZ’s law enforcement agencies whilst enforcing the laws of a foreign country, has been somehow exceptional.
    That is to say thus far most coverage has been conveyed with a subtext that the police, crown law office, SIS, and GCSB normally obey the rather loose constraints placed upon them to preserve kiwi liberties, but for some reason this time they did not, apparently because all of those organisations decided independently of one another, that the normal rules shouldn’t apply; just so that after a three decade hiatus, NZ could get down and dirty with amerika once more.
    Whilst there may be some of that thinking I find blind acceptance of that rationale stretches the bounds of credulity too far for a cynic such as myself.

    Look at this another way. Q Apart from Dotcom’s disrepute in Washington, what else is there about this case that sticks out like the proverbial blackfella dog’s appendages?

    A. One big one. Never before has any criminal case in NZ been sufficiently well-resourced to properly test every link in the chain of evidence.
    Sure we’ve had the occasional richfella put in front of beaks before, but apart from the fact that usually the blokes in charge of investigating richfellas are secretly barracking for the accused and so in thjose few instances, have rigorously stuck to the letter of the law vis a vis evidence gathering (e.g. the hassles the SFO claim to be having obtaining all the evidence they need for the Hanover Finance investigation), few defendants or their legal mouthpieces consider such an examination of the evidence worth it. The huge expenditure of resources it would take would be unlikely to give much of a return since kiwi beaks are notorious for ruling that the probative value of evidence outweighs any dodginess about the way the evidence was obtained.
    “No illegal search and seizure ‘loophole’ for you Hemi.”
    I believe this has allowed a culture of corruption to flourish among NZ’s law enforcement officials.
    Dotcom is going balls out to document the plethora of egregious misbehaviour incidents by NZ law enforcement, because most likely his case will be tried in an amerikan court where, despite post-2001 curtailment of liberty, much of the illegal search and seizure case law still remains.
    So as the extradition decision is reviewed we should prepare for more of these disclosures of malfeasance, and remember that there is a strong likelihood that rather than these being the exception, most likely these are standard operating practices for NZ’s law enforcement agencies whose methods are rarely, if ever, properly examined.

    Since Sep 2007 • 92 posts Report Reply

  • James George,

    p.s. Mrs Malaprop rules OK!

    Since Sep 2007 • 92 posts Report Reply

  • Steve Reeves,

    Can you be both a foreign national and an NZ resident?

    I reckon you can---so if the police are asked "Are they foreign nationals?" and reply "Yes" then they have given a correct answer.

    Perhaps it's GCSB who have caused all this (contrary to what The Herald, for example, is reporting) by asking the wrong question. It seems they should have asked "Are they NZ residents?".

    Being a resident and being a foreign national are not mutually exclusive, perhaps?

    Near Donny Park, Hamilton… • Since Apr 2007 • 94 posts Report Reply

  • Andre Alessi,

    Anyway, I’m wondering where GCSB stand if they persuade an ISP, telco or social network operator to “voluntarily” provide them with a feed.

    Never going to happen. Anyone with that kind of access and authority knows exactly what's required of any request for information.

    I must have missed something: why are we sure it's Dotcom's Wi-Fi or broadband that was hacked? Seems to me that the most likely source of individually identifiable information would be cellphone geolocation data, or at a stretch live voice surveillance.

    Devonport, New Zealand • Since Nov 2006 • 862 posts Report Reply

  • Jarno van der Linden, in reply to Steve Reeves,

    I am a New Zealand resident and have a Dutch passport. So yes, nationality and residency are different (otherwise there wouldn't be much point to have two different terms anyway).

    One would expect though that as this involves one of the most important restrictions on the power granted to the GCSB, they would be very familiar with these concepts and would ask the right questions. Maybe there is a genuine difference of opinion between the GCSB and the government about the meaning of the law?

    Nelson • Since Oct 2007 • 70 posts Report Reply

  • Ross Mason,

    Does anyone have a map showing the routes of the fibre optic links around the country? Including where they go from offshore into NZ? Any detours they make etc. Needs to be down to road level probably.

    Upper Hutt • Since Jun 2007 • 1497 posts Report Reply

  • Rich of Observationz, in reply to Andre Alessi,

    Never going to happen

    Well, there's Twitter's Firehose for a start. I'm fairly sure the NSA would be one of their small number of paying customers. The CIA has a VC arm, In_Q-Tel who could possibly have invested in Facebook.

    At the other end of the scale, the big two telcos's profits are heavily aligned to the level of regulation applied by government. It's not hard to believe that voluntary compliance with GCSB demands might be linked with favourable outcomes in this area.

    (Then you've got a company that's the largest email provider in the world and also runs a huge repository for multimedia. They don't get raided, like Mr Dotcom. Part of the quid-pro-quo for that might be a measure of co-operation, too).

    Back in Wellington • Since Nov 2006 • 4463 posts Report Reply

  • Paul Campbell,

    Of course the answer is encrypt everything - https: is your friend - something Kim Dotcom should already have been aware of

    Dunedin • Since Nov 2006 • 2174 posts Report Reply

  • Islander, in reply to Ross Mason,

    Interesting question: fibre optics came into Okarito & FJG nearly a decade ago (tourist areas) but arnt available through most of South Westland.

    They *do not* equate to cellphone coverage.

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • Lucy Telfar Barnard,

    I see news reports now out saying GCSB were assured by OFCANZ that Dotcom and Van Der Kolk were not NZ residents. Perhaps they should have a better system for checking, but I don't blame them for accepting OFCANZ's word.
    Comments on the Stuff thread are saying "how could GCSB not have noticed Dotcom's residency fireworks party"?
    Answer:
    1. GCSB are a foreign intelligence agency, and therefore, as is appropriate, pay only as much attention to local events and affairs as any individual employee may notice in their day to day life.
    2. Dotcom funded the New Year's eve fireworks in January 2010
    3. GCSB weren't interested in Dotcom until late 2011 (http://www.stuff.co.nz/technology/7723520/Spies-given-wrong-info-on-Dotcom-papers says the spying ran from 16 December 2011 to 20 January 2012). GCSB is based in Wellington.

    I was living in Wellington in January 2010. I doubt I would have remembered in late 2011 that Dotcom had sponsored Auckland's 2010 New Year fireworks, let alone that he did so to celebrate gaining residence.

    I know it's natural to be suspicious of spies, but really guys, they're not 007 or Alias or Men in Black or Moulder and Scully or Reilly or any of the pop-culture representations of the business, they're just a bunch of civil servants doing their jobs and going about their lives.

    Wellington • Since Nov 2006 • 373 posts Report Reply

  • Rich of Observationz, in reply to Lucy Telfar Barnard,

    Given the whole basis of their actions being legal depends on whether the person of interest is an NZ citizen/resident, it's hard to figure that their processes *wouldn't* involve a check on the databases of Immigration and Internal Affairs.

    Back in Wellington • Since Nov 2006 • 4463 posts Report Reply

  • Islander, in reply to Lucy Telfar Barnard,

    they’re just a bunch of civil servants doing their jobs and going about their lives.

    And ruining other people's?

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • Joe Wylie, in reply to Lucy Telfar Barnard,

    I know it's natural to be suspicious of spies, but really guys, they're not 007 or Alias or Men in Black or Moulder and Scully or Reilly or any of the pop-culture representations of the business, they're just a bunch of civil servants doing their jobs and going about their lives.

    Oh come on Lucy, if you're going to attempt condescension surely you can do better than offer one bedtime story view as a substitute for another. Like Banks's abandoning of Dotcom in his hour of need, there's every evidence that these spies operate in a fawning and suspicious culture of nice-up-nasty-down. Once it became known that Dotcom was damned in the eyes of the all-powerful US, caution went out the window.

    flat earth • Since Jan 2007 • 3557 posts Report Reply

  • andin, in reply to Lucy Telfar Barnard,

    I know it’s natural to be suspicious of spies, but really guys, they’re not 007 or Alias or Men in Black or Moulder and Scully or Reilly or any of the pop-culture representations of the business,

    Ummm they are also just people or clever apes, and on this downward jag in the ongoing evolution of human society become prone to investing too much importance to the position they hold in what is rapidly becoming a hierarchal order. And to thinking they have a right to do as they do. Those, who in previous eras took holy vows, also fell prey to the same phenomenon.
    And what Joe said...

    raglan • Since Mar 2007 • 1230 posts Report Reply

  • Ross Mason,

    Graham,

    What is a Ministerial Certificate?? A get out of jail free card? A suppression order? A piece of paper that gets Key off the hook? Permission given by the guy in charge – in this case English I presume – to let the Police or GCSB do want they want? We ain’t paying nuthin?

    Upper Hutt • Since Jun 2007 • 1497 posts Report Reply

  • DexterX, in reply to Rich of Observationz,

    I agree with you this is how it likely evolved

    I think the steps might be:
    a. GCSB provide data (in bulk, probably) to NSA
    b. NSA provide information on requested subjects to FBI
    c. FBI request NZ Police to lawfully "re-obtain" said information
    d. NZ Police request GCSB assistance

    To my mind it is also highly likely the GCSB were involved with the FBI dealing with Kim Dot Com and others much earlier than the period - 16 Dec 2011 through until 20 January 2012 - the official bit of the unlawful activity.

    The further disclosure that Dot Com is seeking from the FBI may reveal more and earlier NZ Involvement - if the FBI fail to disclose all they have - then they effectively limit what they can later present as evidence against Dot Com.

    If the situation is such that the FBI fail to attend to a full disclosure as they are protecting parties in the NZ Govt then it works to Kim Dot Com's advantage.

    The extent of the GSCB activity in the Megaupload is now suppressed as Bill English last month signed, as acting Prime Minister a ministerial certificate.

    I find it disingenuous that Key only knew about the wider issues last week, and following receipt of this knowledge we have an inquiry ordered by Key.

    What we really have is a well-planned and executed damage control plan, which involves Key getting off the hook.

    I feel it is likely the Kim Dot Com case will be dismissed or withdrawn as the FBI are not going to attend to a full disclosure when it is likely that evidence would likely damage the government and will also be most likely found to be in admissible on account of such evidence being gathered unlawfully.

    The full disclosure of the evidence is only in the interests of justice and as a result of no benefit to GCSB, The Police, the FBI and First Citizen John Key The First - he is so great he is more clever than any person anywhere.

    Auckland • Since Nov 2006 • 1199 posts Report Reply

  • Chris Waugh, in reply to Rich of Observationz,

    it’s hard to figure that their processes *wouldn’t* involve a check on the databases of Immigration and Internal Affairs.

    Well, yes, but considering all the documentation I had to supply to Internal Affairs to claim my daughter's citizenship, I'd be surprised if any such processes exist. And wouldn't that require an information matching programme under the Privacy Act? I don't see such a programme on this chart, although I do see Passports, Births and Citizenship have programmes with each other - which just adds to my annoyance with the amount of stuff I had to provide.

    Of course, the GCSB should be capable of just hacking into the DIA and Immigration databases, but we're supposed to have laws to limit the powers of government and allow maximum civil liberties, aren't we?

    Beijing • Since Jan 2007 • 2152 posts Report Reply

  • Chris Waugh,

    Guess I should've checked with the GCSB first..

    The GCSB is subject to all New Zealand law, although specific exemption provisions are contained in some legislation (for example the Privacy Act, the Public Finance Act, and the Radio Communications Act). Other more general exemptions are contained in the Human Rights Act and the Public Records Act.

    Now I guess I need a lawyer. Seems to me the Privacy Act and Public Records Act would be the laws deciding whether or not the GCSB can check somebody's citizenship or residency status without knocking on their door and politely asking. The Privacy Commissioner doesn't list the GCSB or SIS under their exemptions in their introduction, though I guess Principle 10:

    (c) that non-compliance is necessary -

    (i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or

    and Principle 11

    (e) that non-compliance is necessary -

    (i) to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or

    allow Immigration and DIA to disclose a person's citizenship or residence status if GCSB's assurance that the person is under investigation is enough for them to believe, on reasonable grounds...

    But I'm not a lawyer, just a pleb with an internet connection and spare time.

    Beijing • Since Jan 2007 • 2152 posts Report Reply

  • Lucy Telfar Barnard, in reply to Joe Wylie,

    I wasn't trying to be condescending, I was trying to inject a little lightness, so sorry if I toned it wrong.
    However, I do object to be told I'm swapping one bedtime story for another. Wellington is a small place, with its own communities. I know a number of people who work or have worked at GCSB. I went to university with some of them. I base my description of the people working there on that rather than on my imagination.

    Wellington • Since Nov 2006 • 373 posts Report Reply

  • mark taslov, in reply to Lucy Telfar Barnard,

    *Mulder

    your taxed dollar • Since Mar 2008 • 1691 posts Report Reply

  • Ross Mason,

    It struck me that the GCSB is an intelligence gathering agency. They don't seem to have enough.

    Upper Hutt • Since Jun 2007 • 1497 posts Report Reply

  • DexterX,

    Key attending his son’s baseball team’s overseas trip in preference to attending the soldiers’ funeral service falls nicely into place to allow English to sign the ministerial warrant that GCSB would have had Key sign.

    Key appears to me to have taken/created the opportunity to put daylight between himself and an issue that he, if he were competent, would have some knowledge of, being the minister in charge.

    I feel that Key and English are being substantially dishonest in this matter – the persecution of Kim Dot Com by the NZ Govt and all the surrounding behaviour is Nixonian in flavour.

    Auckland • Since Nov 2006 • 1199 posts Report Reply

  • Andre Alessi,

    Well, there’s Twitter’s Firehose for a start. I’m fairly sure the NSA would be one of their small number of paying customers. The CIA has a VC arm, In_Q-Tel who could possibly have invested in Facebook.

    At the other end of the scale, the big two telcos’s profits are heavily aligned to the level of regulation applied by government. It’s not hard to believe that voluntary compliance with GCSB demands might be linked with favourable outcomes in this area.

    (Then you’ve got a company that’s the largest email provider in the world and also runs a huge repository for multimedia. They don’t get raided, like Mr Dotcom. Part of the quid-pro-quo for that might be a measure of co-operation, too).

    It just doesn't happen that way. Requests from police and security services to telcos and other providers are routine-you just wouldn't get a situation where a person able to make a decision like this would say, "Oh well, I guess just this once..." Even a call from the telco's CEO to the Call Investigation Centre (or whoever) would be met with the same response, because everyone knows just how important it is to stick to the correct process for this kind of thing.

    Also, knowing the culture of most ISPs like I do, the people who do this stuff are significantly more sympathetic towards people like Dotcom than they are to intelligence services or law enforcement. I know of at least one telco whose call centre staff hid a torrent server running 24/7 in the ceiling of their office, connected to the corporate LAN. It stayed there for years because the people with the ability to locate and remove it were happier to benefit from the "free" movies and tv shows.

    ISPs, Twitter, Google, etc don't need the goodwill of governments, particularly not a piddly little entity like NZ's government. They're already seen as "agents of the enemy" by governments, and that's not going to change anytime soon.

    Devonport, New Zealand • Since Nov 2006 • 862 posts Report Reply

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