Legal Beagle by Graeme Edgeler

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Legal Beagle: Kim Dotcom: Questions and Answers

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  • Rich of Observationz,

    Completely legal and above-board.

    If we were a colony of the US, maybe.

    But suppose some of the emails were between Kim Dotcom in Coatesville, and counterparties here or elsewhere. The US seized/intercepted them from internet traffic or an ISP. That act had elements located within NZ (sending the email) and in the US (the interception). I reckon that under s7 of the Crimes Act, that might bring it under NZ jurisdiction, and hence illegal.

    And before you say this is far fetched, consider that this is much the same doctrine by which the US claims jurisdiction in the substantive case against Dotcom.

    Back in Wellington • Since Nov 2006 • 4221 posts Report Reply

  • DexterX, in reply to FletcherB,

    So they had the email contents BEFORE they had (legal) physical access to the hardware?

    Likely, some of it anyway - and then consider the team gathering the evidence - made up of NZ Police/OFCANZ, GSCB and the FBI gathered the evidence largely in NZ - with the GSCB playing the larger part - seizxing the harddrives (and cloning them to provide to the FBI) are a part of cleansing that part of the evidence from the contamination of the "illegal activity".

    In any eventKDC legal team are going hard out for a full disclosure.

    Auckland • Since Nov 2006 • 1157 posts Report Reply

  • nzlemming, in reply to DexterX,

    There's enough craziness going on with this that you don't have to make up scenarios. Cockup is far more likely than deep, dark conspiracy.

    Waikanae • Since Nov 2006 • 1701 posts Report Reply

  • Sacha,

    ACLU notes increase in warrantless intercepts in US.

    Ak • Since May 2008 • 15752 posts Report Reply

  • mark taslov,

    Assuming the case against Dotcom eventually gets thrown out, would the government be liable for his legal expenses? (€2.6 million+)

    your taxed dollar • Since Mar 2008 • 1293 posts Report Reply

  • DexterX, in reply to nzlemming,

    Cockup is far more likely than deep, dark conspiracy

    The only cock up was they got found out.

    Auckland • Since Nov 2006 • 1157 posts Report Reply

  • Kyle Matthews,

    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.

    They do try and keep their identity secret however. Hager was able to identify them by looking... can't remember if it was an electoral roll or some sort phone book where they were all listed in a particular way.

    Cockup is far more likely than deep, dark conspiracy.

    Aye.

    Since Nov 2006 • 6145 posts Report Reply

  • FletcherB, in reply to mark taslov,

    Assuming the case against Dotcom eventually gets thrown out, would the government be liable for his legal expenses? (€2.6 million+)

    Legal Expenses schmegal expenses.... what about the death of a company (reputedly) valued around $1 billion. (Mega Uploads)

    West Auckland • Since Nov 2006 • 782 posts Report Reply

  • Rich of Observationz, in reply to Kyle Matthews,

    Yeah, there is a difference between public availability and throwing anyone who asks in jail. There isn't a page like this or even like this on the GCSB website as far as I can tell.

    Back in Wellington • Since Nov 2006 • 4221 posts Report Reply

  • mark taslov, in reply to FletcherB,

    Sad story that. The company was shut down by the US so... I'm interested as to a rough figure the New Zealand taxpayer would end up shouldering in case of settlement, (on top of legal, policing, spying, ministerial costs to date).

    How much are *the people of New Zealand* likely to end up pissing away on this thing?

    your taxed dollar • Since Mar 2008 • 1293 posts Report Reply

  • Lucy Telfar Barnard, in reply to Sacha,

    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.

    The only reason I didn't factor that into the privacy breach was that I think that would have happened regardless of whether the GCSB had spied on him - that was the police action, not the GCSB action.

    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.

    Okay, I can see how that would work (would it make a difference if their lawyer was in-house rather than external?), but in many ways that makes it worse, because it means that the "operative(s)" is arguably even less to blame. People can quite rightly argue that the GCSB should have known the correct interpretation of its own act and the Immigration Act, but I would have thought it reasonable for any employees who might have been involved in the actual intercepting to think they could rely on senior management to look after what was legal to do and what wasn't.

    I know that comes close to the "I was just obeying orders" argument, but I do think there are orders of degree involved. If Dotcom and his co-accused hadn't yet gained permanent residency, the interception would have been legal. There's quite a difference between that and the grosser abuses of human rights which apply to all regardless of citizenship, residency etc.

    And would it mean that if (not saying this is what happened, just if) senior management or their lawyer or whoever had decided it was convenient to interpret the acts so that Dotcom could be spied on, and were aware there was also a strong argument the other way (as can happen with the law), and told the lower-level employees that he was a safe target , that the senior management are then exempt from prosecution (because they didn't do the intercepting) but the lower-level employees who actually did the intercepting get prosecuted? That doesn't seem the slightest bit fair.

    Wellington • Since Nov 2006 • 227 posts Report Reply

  • Sacha, in reply to Lucy Telfar Barnard,

    that the senior management are then exempt from prosecution (because they didn't do the intercepting) but the lower-level employees who actually did the intercepting get prosecuted? That doesn't seem the slightest bit fair.

    Yet our honourable PM has been doing his best today to do exactly that by blaming the whole thing on a 'mistake' by one bad apple. His schultzy hands? Perfectly clean, of course.

    Ak • Since May 2008 • 15752 posts Report Reply

  • Sacha, in reply to mark taslov,

    The company was shut down by the US

    and I'd expect them to pay, yes.

    Ak • Since May 2008 • 15752 posts Report Reply

  • mark taslov, in reply to Sacha,

    Right. Any ideas on how much Kim Dotcom might be awarded/ receive from the NZ Government for the ongoing local legal bungling?

    "I prefer not to sue the NZ Government," Mr Dotcom said through his official Twitter account. "We love it here & we don't want to burden tax payers."

    He added, more ambiguously, "But it's time for diplomacy. This is all wrong."

    your taxed dollar • Since Mar 2008 • 1293 posts Report Reply

  • DexterX,

    Attachment

    Connive, Obfuscate, Destroy - Connive, Obfuscate, Destroy

    Auckland • Since Nov 2006 • 1157 posts Report Reply

  • DexterX,

    From the herald this morning:

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10837316

    Sir Geoffrey Palmer

    Sir Geoffrey said Mr Key should have been told from the start.

    "I would have thought if the GCSB was using its sophisticated surveillance methods in a situation like this, it would be prudent to tell the minister. I don't understand that at all.

    "In my experience with them, they were meticulous in consulting ministers when they needed, and should have."

    Justice Neazor & John Key

    Justice Neazor told 3 News last night that the GCSB had "made a mistake".

    Asked about a further three instances relating to the GCSB's use of its powers that he referred to in his last annual report, Justice Neazor, a retired High Court judge, said he could not recall them.

    However, Mr Key said he had asked Justice Neazor about those instances and was assured they were minor and had been addressed..

    Auckland • Since Nov 2006 • 1157 posts Report Reply

  • nzlemming,

    I know Neazor personally, though not as well as I used to.(Went to school with his son etc). Mind like a steel trap and scrupulous to a fault. All in all, a man I trust to speak the truth. If he had discussed those instances with Key, he would not have said he could not recall them. Key lies any time he thinks he can get away with it.

    Waikanae • Since Nov 2006 • 1701 posts Report Reply

  • Stephen Judd, in reply to nzlemming,

    The thing about cockup vs conspiracy is that if there is a pattern of consistent cockup, I still want something done.

    And yeah, there may be no conspiracy to achieve a dastardly aim, but there can still be collusion to hide systemic incompetence.

    Wellington • Since Nov 2006 • 2906 posts Report Reply

  • Sacha, in reply to nzlemming,

    That's a relief, because he frankly came across like a tired old fool on TV3 News last night. Hardly reassuring, though I've never doubted if there's any lying or conniving for plausible deniability it's from senior Ministers.

    Ak • Since May 2008 • 15752 posts Report Reply

  • Sacha, in reply to Stephen Judd,

    The thing about cockup vs conspiracy is that if there is a pattern of consistent cockup, I still want something done.

    Same. And if any person who is entrusted with an oversight role doesn't, then I want them out of the way. This stuff is not some kind of game.

    Ak • Since May 2008 • 15752 posts Report Reply

  • Ds,

    The spies were told by the cops that DotCom was 'legal'
    The spies got an in house opinion that he was fair game, not legal. Game on.

    Then they got a suppression order from Bill while the boss was away cause they screwed had up.

    This was not a 'brain fade' by one person as Key tries to spin it.

    It was just another legal opinion as he tries to spin the Winkelman judgement. (except that was a judge!)

    wellington • Since Sep 2012 • 8 posts Report Reply

  • Rob Stowell,

    Early on, Key declared he had never heard of Mr Dotcom. Much of the subsequent confustication can be explained as the ‘facts’ being circled to protect this assertion. Pure speculation, but (even?) John Armstrong hints strongly that JK’s being so out of the loop is unlikely.

    if Mr Dotcom did not make it on to the agenda, just what was so big in the tiny world of New Zealand intelligence that it could shut out the attempt to extradite Dotcom to the United States?

    Therein lies a clue. Helping the Americans may have been deemed politically tricky. The fewer who knew the better.

    It still beggars belief that the Prime Minister was not told. It would have been more than somewhat embarrassing if he had learnt what the GCSB was up to from the Americans.

    If it is correct he was unaware of what was going on, there was a woeful failure of communication between the various intelligence units in the Prime Minister’s Department and the GCSB.

    But that seems most unlikely, given the seniority and experience of the bureaucrats in the department.

    The more you look at the shemozzle, the less things stack up.

    One small, rash statement- and then the ‘cover-up' that really does the damage?

    Whakaraupo • Since Nov 2006 • 1354 posts Report Reply

  • Sacha, in reply to Rob Stowell,

    JK’s being so out of the loop is unlikely

    Utterly implausible. Campbell Live's story five months ago about who knew what is still pertinent - detailing the many people and organisations who would have to have not told Key anything. Here's the PM responding 2 days later. Watch the clips and decide for yourself if it stacks up.

    Ak • Since May 2008 • 15752 posts Report Reply

  • Islander, in reply to Sacha,

    GOODNESS!
    I really should watch more televsion! Seriously!
    This crap has been out there - snd no official thingie has done ANYTHING!
    Fukx o dear -readies comment blowtorch and heavyduty sarcasm armoury- GOoooo!

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

  • Kyle Matthews,

    That’s a relief, because he frankly came across like a tired old fool on TV3 News last night.

    That was a concerning image wasn't it?

    Since Nov 2006 • 6145 posts Report Reply

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