Legal Beagle by Graeme Edgeler

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Legal Beagle: Kim Dotcom: Questions and Answers

114 Responses

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  • ubernaut, in reply to Hebe,

    Indeed. Mr "all radar, no compass" was always going to struggle when dislodged from the high ground..

    Wellington • Since Sep 2012 • 1 posts Report Reply

  • Euan Mason,

    It is fascinating that the law applies a different philosophical approach to spying on domestic residents than it does to similar offences like unauthorised access to a computer. In the former case not knowing about the illegality of your action is not a defence while in the latter case it is. So, in terms of practical reasoning, when does an agent have reason for _not_ taking an action?

    Canterbury • Since Jul 2008 • 172 posts Report Reply

  • Tristan, in reply to Paul Williams,

    I notice the prime minister was to scared to enter the house today....poor wee thing

    Auckland • Since Nov 2006 • 195 posts Report Reply

  • DexterX, in reply to Matthew Poole,

    What evidence do you have that the "NZ resident" was in reference to his immigration status rather than his principal domicile

    They OFCANZ, GCSB and the minister did not considering the matter of domicile perse - domicile does not determine residency or citizenship eligibility does. But this is not the issue. Citizenship was considered by OFCANZ.

    The request made by OFCANZ for STG - which is dated 19th Jan 2012 verifies that the intelligence is accurate as at 1900 hourrs on 16 Jan 2012 with supporting files attached - notes the following:

    KDC - European - Born Germany but has New Zealand Residency
    For Moan KDC's wife - Philippines but has New Zealand Residency

    The other people are described as .
    Kerry McKierney - European - New Zealander
    Wayne Tempero - European - New Zealander
    Andrew Bowden- European - New Zealander
    Marthias Ortmann - European - German Citizen
    Finn Batoto - European - German Citizen

    The confusion over residency is as Rich of Observantnz stated is disingenuous to put it mildly I would say it is bullshit. Did GCSB act outside the act and they did.

    So they then went back and fabricated a sufficient documentary trail to cover their arses that Neazor bought it? Fuck's sake, this isn't a movie!

    The answer to your question is NO - at the moment the Govt and FBI are objecting to disclosure - whether they are fabricating documents I can't say - but they are refusing to hand them over a wide range of documents on the basis of National Security interest - the warrant English signed on Keys behalf.

    The items they are likely refusing to disclose on the basis of National Security are the intelligance files on all parties from the time the FBI contacted the NZ Police/NZ Govt and this goes as far back as early 2011. These files are mentioned in the OFCANZ request and the summary of the perosal information on these are in the OFCANZ request to STG..

    Crown Law/The Police also released the uplifted records from teh raid to the FBI when they had no authority to - this is covered in one of the earlier judgments..

    I would say rather than fabricating things OFCANZ, GCSB and The minister in charge will be looking to make them be gone or missing.

    I trust this governent less than any other - it will be intereseting to see who from outside of the Govt (Crown Law, the Police) Key is looking for advice.

    Failing to attend to disclosure or objecting to disclousre is a mechanism where one affects the ability of the other party to run an adequate case or challenge ones position and mor eimportantly prevents decision makers from make a decision based on all the facts of the matter.

    IMHO it is likely that Key will look to do a deal with DotCom to prevent the matter going much further - pretty much how the teapot tapes saga was wrapped up - however - in the Dot Com situation - Key is at a a very real and apparent disadvantage.

    Dot com shoudl tell him to piss off if Key comes knocking.

    Govt phuck around with people all the time and exhaust them even when the Govt know they are in the wrong - in this siuation KDC has the resources to see his rights at law are considered and as a result we are where we are at now.

    Key is an embarrasment - eventually he may be forced to resign.

    Auckland • Since Nov 2006 • 1186 posts Report Reply

  • Islander, in reply to DexterX,

    Key is an embarrasment – eventually he may be forced to resign

    Sooner rather than later is my fervent hope- which, given the numbers, could result in a very interesting situation…

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

  • DexterX,

    If you look at Key - The Teapot Tapes, Casino Con Centre deal, Banks Donation Saga, his attitude - no tiolets on Planet Key, and also the KDC saga - I feel Key has set a new high watermark for dishonesty and incompetence.

    Auckland • Since Nov 2006 • 1186 posts Report Reply

  • Graeme Edgeler,

    Re: PM not attending House today - basically never do on Thursdays. Clark before him too.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Steve Withers, in reply to Thomas Beagle,

    It's highly debatable a file sharing site: 1. with Ts & Cs prohibiting copyright violation 2: with take-down procedures and 3. giving rights holders direct access to perform takedowns - can be described accurately as committing "commercial copyright violation". There may well have been offending and the site was definitely commercial...but the offending that did occur wasn't committed by the site itself.

    Auckland • Since Mar 2008 • 280 posts Report Reply

  • nzlemming, in reply to Steve Withers,

    That would need to be determined by the actual trial. The accusation is enough to warrant extradition if an indictment for such a crime is committed.

    Waikanae • Since Nov 2006 • 1881 posts Report Reply

  • DexterX,

    This Stuff Article 27 Sep 2012 - Kirsty Johnston & Ian Steward - provides an outline of the next chapter .

    http://www.stuff.co.nz/technology/7734184/Dotcoms-lawyers-question-police-statements

    The extent of the GCSB surveillance of Dotcom, and what was passed to the United States, is not yet known.

    Mr Davison said in court it was "likely" there was more material despite police assurances the GCSB only helped to locate the internet mogul and his co-accused.

    Mr Davison said the litany of errors and "inconsistencies" by the Crown showed the authorities could not be relied on to provide disclosure for his client. He instead called for all of the information held by the Crown to be handed over without interference.

    Justice Winkelmann said the court would appoint a legal specialist to determine whether the information gathered illegally on Kim Dotcom can be given to him.

    A hearing would then take place in a closed court between the lawyers involved.

    Auckland • Since Nov 2006 • 1186 posts Report Reply

  • Ian Dalziel,

    I Sir Veil...
    I see that PM Key has apologised to Dotcom
    "I misspooked..." ?

    Christchurch • Since Dec 2006 • 4679 posts Report Reply

  • Lucy Telfar Barnard,

    Graeme, if what the GCSB did was criminal as well as illegal, what does that mean for individual GCSB employees? You note that what they did may be criminal even if they are blameless.

    Basically, I'm thinking of whoever the poor legal person was at GCSB who made the wrong call, and wondering what will happen to them.

    Of course I'm thinking of Dotcom too, who was wronged, but in the end I think this wrong will only help him. If GCSB reports were limited to where he was, and whether he knew the police were about to arrest him, they would have made little difference to whether he was arrested, or the manner of his arrest. Because of this illegality, I would guess his likelihood of extradition has just reduced further. And given the PM's apology for it, I can't see him being extradited at all now. So the illegality of the GCSB interception is more to his benefit than his detriment (of course, he may feel that the invasion of his privacy is worse than being extradited to the US, but somehow I doubt it, or at least I know which I'd prefer, if it were me.)

    So the way I see it is: on balance, Dotcom is better off for the illegal intercept; Key is better off for it too (because now there's a better excuse for not making the unpopular move of extraditing Dotcom, which the govt would get the flak for despite it being a court decision, and he gets to blame it on that popular bogey, the spooks, rather than admit the police went too far). The GCSB as an organisation deserves some consequences for acting illegally, but I'm not sure that individual employees do if they acted in good faith, which is why I'm curious as to who if anyone would be charged with any offence?

    Wellington • Since Nov 2006 • 323 posts Report Reply

  • Rich of Observationz,

    I'm suspecting a bit of collusion here. What may have happened is that, knowing that GCSB couldn't target NZ residents, the police, when requesting GCSB assistance provided a deliberately ambiguous statement of Dotcom's immigration status. GCSB came to the party by taking a generous interpretation of this and not enquiring further.

    I'd like to see disclosed:
    - the timeline of Mr Dotcom's various visa changes
    - the memo from the police to GCSB requesting assistance

    My suspicion is that Key/Neasor decided to lay the blame on GCSB, because they are less vulnerable to scrutiny than police. I suspect the backstop is that Ian Fletcher or a subordinate official* will resign. What Key doesn't want is an IPCA investigation in which individual police officers might well kick back and defend their corner, causing more general embarrassment.

    * GCSB staff other than the Director are, I think, anonymous. They could announce an un-named manager has resigned without us knowing if that person even existed.

    Back in Wellington • Since Nov 2006 • 4421 posts Report Reply

  • Sacha, in reply to Steve Withers,

    the offending that did occur wasn't committed by the site itself

    At the time of the raid there was mention of evidence to the contrary to be presented in (US) court, including emails between the arrestees. Now wondering how those were obtained..

    Ak • Since May 2008 • 16491 posts Report Reply

  • Sacha, in reply to Lucy Telfar Barnard,

    of course, he may feel that the invasion of his privacy is worse than being extradited to the US, but somehow I doubt it, or at least I know which I'd prefer, if it were me.

    You do need to factor in a heavily-armed raid on your family and home by a few dozen men in black and some helicopters landing in your yard unannounced. Bonus points for wife in late stages of pregnancy.

    Ak • Since May 2008 • 16491 posts Report Reply

  • Sacha,

    Juha Saarinen has a story in Wired examining the Police planning documents for the raid.

    According to the documents, the preferred option for the police was to drop a “primary arrest team proximate to the dwelling” with STG and AOS officers in “lower standard of dress” following in vehicles on ground.

    However, police were concerned that their actions could be seen as “heavy handed” and the use of helicopter as “possibly seen as over the top use of resources”.

    Furthermore, police also questioned the scale of the operation, as Dotcom and associates faced only fraud offences and asked “why a tactical intervention?” in the planning documents.

    Due to “the international interest this warrant execution may bring” police officers were to dress and interact “in as lower [sic] key manner as possible” the planning documents dictated.

    Police classified the entire operation as “Low Risk” even though the documents said there would be firearms on the premises.

    Ak • Since May 2008 • 16491 posts Report Reply

  • Paul Williams, in reply to Tristan,

    I notice the prime minister was to scared to enter the house today….poor wee thing

    Yeah. Although I entirely accept the PM may have other competing commitments, I expect attendance of Parliament to be close to the top in terms of priorities. More so, when you’re the Minister responsible for a public fiasco. Same goes for the Leader of the Opposition too.

    Re: PM not attending House today – basically never do on Thursdays. Clark before him too.

    Graeme, you'll have done a check I'm sure, however I think the PM should have been there yesterday, regardless of what else he had on, to front on his Ministerial performance. This was not an everyday sitting.

    Sydney • Since Nov 2006 • 2210 posts Report Reply

  • Matthew Poole, in reply to Sacha,

    including emails between the arrestees. Now wondering how those were obtained

    Seizure warrants in the US. It's well-known how that evidence was gathered, and there's nothing dodgy about it. The Feds got warrants, seized computers, gathered evidence. Completely legal and above-board.

    The pit from whence crawl… • Since Mar 2007 • 3898 posts Report Reply

  • DexterX, in reply to Sacha,

    Now wondering how those were obtained..

    The seized hardrives that were later cloned and copies inadvertently given to the FBI.

    The purpose of the raid being the arrest, and search for and seizure of evidence.

    Auckland • Since Nov 2006 • 1186 posts Report Reply

  • Sacha, in reply to Matthew Poole,

    The Feds got warrants, seized computers, gathered evidence

    So the emails were intercepted in the US?

    Ak • Since May 2008 • 16491 posts Report Reply

  • Sacha, in reply to DexterX,

    Not sure. There were also US-based seizures.

    Ak • Since May 2008 • 16491 posts Report Reply

  • FletcherB,

    Yes, but I thought the emails were presented in support of the seizure warrants no? (according to the way news reports were presented)
    So they had the email contents BEFORE they had (legal) physical access to the hardware?

    West Auckland • Since Nov 2006 • 791 posts Report Reply

  • Kyle Matthews,

    Basically, I’m thinking of whoever the poor legal person was at GCSB who made the wrong call, and wondering what will happen to them.

    I think that's just an employment issue. The illegality was not stuffing up the call as to what GCSB could do, the illegality was doing it - that will be one or more of the GCSB operatives, not their lawyer.

    Key is better off for it too (because now there’s a better excuse for not making the unpopular move of extraditing Dotcom, which the govt would get the flak for despite it being a court decision, and he gets to blame it on that popular bogey, the spooks, rather than admit the police went too far).

    I'm quite hopeful that the decision to extradite him or not, is based on lawyers arguing in front of a judge, based on law and international agreements, not the PM seeking political advantage either way.

    Since Nov 2006 • 6162 posts Report Reply

  • Sacha, in reply to FletcherB,

    I thought the emails were presented in support of the seizure warrants

    Me too. I presumed from intercepts in US - but maybe NZ in light of GCSB and SIS involvement?

    Ak • Since May 2008 • 16491 posts Report Reply

  • nzlemming, in reply to Rich of Observationz,

    GCSB staff other than the Director are, I think, anonymous. They could announce an un-named manager has resigned without us knowing if that person even existed

    That's the NZSIS you're thinking of, where it is illegal to name staff publicly other than the Director. No such requirement for anonymity applies to the GCSB.

    Waikanae • Since Nov 2006 • 1881 posts Report Reply

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