Last week, when various calls for further investigations into the GCSB investigation of Kim Dotcom were being made, I was asked what type of inquiry I thought was appropriate. I think they wondered whether it should be a Ministerial inquiry, a Commission of Inquiry, or something else like that. My immediate response was that it should be a police inquiry.
I understand Green Party Co-Leader Russel Norman made such a complaint on Friday. The complaint has been dismissed as a political stunt - Dr Norman released an extensive media statement directly invoking John Key's police complaint over the recording of the teapot tapes, calling for his support - but while there is certainly a political element to it, it does not follow that that is all it is.
Section 216B of the Crimes Act makes a certain type of "spying" criminal:
216B Prohibition on use of interception devices
(1) Subject to subsections (2) to (5), every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device.
Various exceptions are included, including where the interception is by one of the parties to the conversation, the monitoring of prisoners' phone-calls in accordance with the Corrections Act, and interception carried out solely for the maintenance of the Internet or other communications system. It also contains an exception for interception if the person who does it:
does so pursuant to, and in accordance with the terms of, any authority conferred on him or her by or under Part 11A [of the Crimes Act]; or the New Zealand Security Intelligence Service Act 1969; or the Government Communications Security Bureau Act 2003; or the Misuse of Drugs Amendment Act 1978; or the International Terrorism (Emergency Powers) Act 1987.
[Its form differs slightly now, following the Search and Surveillance Act replacing the powers of interception contained in the Crimes Act and the Misuse of Drugs Amendment Act.]
Importantly, should a police officer or GCSB agent(?) intercepting a private communication act other than in accordance with their legal authority as provided by those acts, this defence does not apply.
Dr Norman compared this case to the recording of Prime Minister John Key's "teatape" conversation with ACT Party leader John Banks. Both involved allegations of breaches of section 216B of the Crimes Act, and the teatape was something that the police took very seriously, including raiding a number of news organisations with search warrants.
But to see whether the analogy holds, we should assess what the offence mean. An offence is committed if someone:
intentionally intercepts any private communication by means of an interception device.
This contains a number of distinct elements, each of which must be proved:
- there must be an interception of a communication
- the communication intercepted must be a private communication
- that interception must be by means of an interception device
- the whole thing must be intentional
Missing any of these things, won't necessarily make an action legal (it might be a breach of privacy, for example), but it will mean it is not a breach of section 216B and therefore probably isn't criminal.
Was there an interception of a communication?
Intercept is defined in section 216A of the Crimes Act:
intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either—
(a) while it is taking place; or
(b) while it is in transit
We do not know exactly what happened. For example, had the involvement of the GCSB been limited to confirming that the mobile phones of Kim Dotcom and his colleagues were all using a particular cell tower, that would not be enough.
But we've been told enough to know that the involvement of the GCSB was not limited to that. Did someone within the GCSB intercept a communication? In its memorandum to the Court, the Crown advised that:
GCSB acquired communications involving the persons subject to arrest and forwarded any of those communications relevant to location to OFCANZ.
And it also refers to the actions of the GCSB as "interception operations".
And in his letter to Paul Neazor, the Inspector-General of Security and Intelligence, John Key states:
the GCSB has discovered that it acted unlawfully in intercepting the communications of certain individuals...
Looks like this element is met.
Was that communication a private communication?
Private communication is also defined in section 216A of the Crimes Act:
(a) means a communication (whether in oral or written form or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
Most people don't don't want people listening in on their telephone calls, reading text messages or emails, or using long-range listening devices to overhear their in person conversations. No details have been announced about what communications were acquired, but unless the information came from reading Dotcom's Facebook wall, I can't conceive of the communications not being private.
Was an interception device used?
Again we're not told what was used, except that it did not go so far as "installing or connecting interception devices". This was noted, because the GCSB only requires a warrant (from the Prime Minister) in circumstances involving "physically connect[ing] an interception device to any part of a network, or install[ing] an interception device in a place for the purpose of intercepting communications that occur in the place." Other uses of interception devices (for example, that pick up conversations at a distance, or which retrieve information from the airwaves don't need warrants, but may nonetheless involve interception devices.
Again, the term is defined in section 216A:
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept a private communication; but
(b) does not include—
(i) a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing; or
(ii) a device exempted from the provisions of this Part by the Governor-General by Order in Council, either generally or in such places or circumstances or subject to such other conditions as may be specified in the order
No additional devices appear to have been exempted, and this definition is pretty broad. Unless the GCSB were using ear trumpets, it looks like this is met as well.
Was it intentional?
Unlike offences around computer "hacking" this offence doesn't require the person alleged to have done it to know that their interception was unauthorised. So this element seems pretty clear cut too. The interception wasn't accidental, and those in the GCSB must have known that their actions would intercept private conversations.
What does this mean?
Four elements to the offence, and based on the information we know, four ticks. It seems highly likely, even with the limited information we currently have, that a criminal offence has been committed.
And how does this compare to the teapot interception?
There are superficial similarities, but the differences are stark. It was never clear that the teatape interception was intentional, nor that the conversation was a private communication.
In comparison, this one is open and shut.
The Prime Minister's suggestion that no further inquiry is needed as "at the end of the day there's a serious issue here and we addressed that issue yesterday and I think most New Zealanders would see that I am very unhappy about the way my ministry has performed" is an intriguing one. The Prime Minister's unhappiness wasn't enough to stave off a police investigation, but was its cause.
The report of the Inspector-General no more removes the need for consideration of criminal action than a Coroner's report declaring someone to have been responsible for a death means criminal charges are unnecessary.
Someone in the GCSB, and perhaps others in the police, has committed a crime. They may not have known they were committing an offence - but as anyone who has gotten a ticket for travelling 90km/h in an area they mistakenly thought had a speed limit of 100km/h knows - that's not much of a defence.
In many situations, Parliament allows that an honest mistake, sometimes even one made carelessly, or recklessly, isn't criminal. In respect of other offending, it effectively places an obligation on people to be sure, and holds them criminally responsible if they get it wrong.
Andrew Mears' imprisonment for manslaughter in the tragic death of Rosemary Ives is a more serious example of this legal principle in action. The law places an obligation on hunters to be certain what they are aiming at, and it places an obligation on those intercepting communications with interception devices, to be certain of their authority to do so.
I await the results of the police investigation with interest.