Book Reviews | Gordon Campbell | News Flashes | Scoop Features | Scoop Video | Strange & Bizarre | Search

 


MegaUpload Court Memo: GCSB On Kim Dotcom Spying

MegaUpload Court Memo: GCSB On Kim Dotcom Spying

The GCSB has blamed its illegal interception of Kim Dotcom's communications (and those of his co-accused Bram Van Der Kolk) on assurances supplied by the police that they were 'foreign nationals'.

The memorandum filed by the Crown says "GCSB sought assurance that all the persons of interest were foreign nationals. OFCANZ [Organised and Financial Crime Agency New Zealand] gave that assurance".

Dotcom is German and Ver Der Kolk is Dutch but both are New Zealand residents. The GCSB is forbidden from spying NZ residents or citizens. Although both could be called "foreign nationals", the filing accepts "the advice as to immigration status" was incorrect.

The information the GCSB provided to police related "solely to the intended movements of the persons subject to the arrest phase of the OFCANZ operation" and did not involve installing interception devices.

The Government Communications Security Bureau monitors foreign communications (including Internet traffic). It does not require a warrant for non-invasive interceptions such as those at its listening stations at Waihopai and Tangimoana.

Other matters relating to the GCSB's involvement in the MegaUpload case remain secret.

Following the filing of the document, Prime Minister John Key yesterday announced an inquiry into the GCSB's actions.

A text-recognition version of the court memorandum [PDF] follows (Transcription may contain errors and paragraph numbering is inconsistent. Please refer to the original PDF.):

Original version of the document from Stuff.co.nz: Spies given wrong information on Kim Dotcom: court... | Stuff.co.nz

***

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CIV-2012-404 1928

UNDER THE Judicature Amendment Act 1972

IN THE MATTER OF An application for judicial review and
application for order for interim relief
pursuant to section 8

BETWEEN KIM DOTCOM
First Plaintiff
FINN BATATO
Second Plaintiff
MATHIAS ORTMANN
Third Plaintiff
BRAM VAN DER KOLK
Fourth Plaintiff

AND ATTORNEY-GENERAL
First Defendant

AND THE DISTRICT COURT AT NORTH
SHORE
Second Defendant


MEMORANDUM FOR DIRECTIONS HEARING
ON 26 SEPTEMBER 2012
24 September 2012

CROWN LAW
TE TARI TURE O TE KARAUNA


Background

During the evidential phase of the remedies hearing Inspector Wormald, pursuant to s 70 of the Evidence Act 2006, declined to answer a question as to the identity of the entity or entities attending a planning meeting at Police National Headquarters.

The question of the disclosure of that entity and any further information about its role in the Police operation known as “Operation Debut” was subsequently the subject of a Miriisterial Certificate issued pursuant to the Crown Proceedings Act 1950.

Following the evidential motions to continue the suppression sought at the hearing and in the course of ex parte proceedings it became clear that the entity subject to the s 70 application had, in part, due to mistakes of fact and law, acted without statutory authority.

Accordingly the application in relation to the identity of the entity could not, consistently with the rule of law, be maintained.

The entity and its role

In its consideration of the USA request for the execution of arrest warrants directed to the applicants, OFCANZ determined that for law enforcement reasons already heavily traversed in this proceeding there should be simultaneous arrests.

To assist it in determining the location, or likely location at any relevant time of the persons subject to arrest warrants it sought the assistance of the Government Communications Security Bureau.

Under the Government Communications Security Bureau Act 2003 the GCSB is able, in the performance of its functions, to assist a public authoiity by supporting it (in this case NZ Police) to prevent or detect serious crime. Accordingly GCSB acquired communications involving the persons subject to arrest and forwarded any of those communications relevant to location to OFCANZ.

The unlawfulness

9. The GCSB may without warrant intercept the communications of foreign organisations or persons. Following the OFCANZ request for information relevant to location, awareness on the part of the wanted persons of law enforcement interest in them, or any information indicating risk factors in effecting any arrest, GCSB sought assurance that all the persons of interest were foreign nationals. OFCANZ gave that assurance.

10. It is accepted that the advice as to immigration status in relation to K Dotcom and B Van der Kolk and their respective families was incorrect. Those persons held residence visas under the Immigration Act 2009 and under the GCSB Act are deemed to hold the status of permanent resident. As a consequence of the determination by GCSI3 that it has acted unlawfully the Prime Minister, to whom the Bureau reported that finding, has referred the incident to the Inspector-General of Intelligence and Security for investigation and report.

11. Section 14 of the GCSB Act precludes the Bureau from exercising any of its interception powers or functions for the purpose of intercepting the communications of a person who is a New Zealand citizen or permanent resident of New Zealand.

12. The interception operations did not include any activity described in s 15 of the GCSB Act (Installing or Connecting Interception Devices). The GCSB activity commenced on 16 December 2011 and extended until 20 ]anua_ry 2012.

13. The information transferred to OFCANZ related solely to the intended movements of the persons subject to the arrest phase of the OFCANZ operation. No other class of information was provided. The section 70 issue

14. As is evident, the reliance on s 70 as to the identity of the entity present at the Police planning meeting is discontinued.

15. However, aside from the summary of GCSB activity in this memorandum, any further information as to the Bureau’s operational activities remains subject to the s 70 application as supported by the Ministerial Certificate.

Accordingly on Wednesday directions will be sought having regard to any applications or further applications from the applicants as to the further disclosure requirements they have made in applications to the Court. If this necessitates proceedings to set aside the Minister’s Certificate the nature and scope of that proceeding will require judicial directions.

********

© Scoop Media

 
 
 
 
 
Top Scoops Headlines

 

New HiveMind Project: What Should We Do About Sugar?

While most people agree that increased sugar consumption is a major cause of too many New Zealanders being overweight and obese, what we should do about this remains a matter of debate and argument. More>>

ALSO:


Gordon Campbell: On Vladimir Putin’s Wonderful, Fabulous, Very Good Year

Safe to say that no-one, but no-one has had a better 2016 than Vladimir Putin. What an annus mirabilis it has been for him. Somehow, Russia got away with directly interfering in the US election process, such that a friendly oligarch is about to take up residence in the White House, rather than a genuine rival. More>>

ALSO:


Gordon Campbell: On The Media Normalisation Of Trump

We all supposedly agree that the media is going to hell in a tabloid handbasket, but the trends to the contrary can be a bit harder to spot. In his 1970s book The Right Stuff, Tom Wolfe had mocked the way the media instinctively acts as what he called The Victorian Gentleman. More>>

ALSO:

Binoy Kampmark: The Reality Of Fake News

Fake news as reality; the inability to navigate the waters in which it swims; a weakness in succumbing to material best treated with a huge pinch of salt. That, we are told, is the new condition of the global information environment. More>>

Alastair Thompson: Helen Kelly And The Compassionless People
I wasn't a close friend of Helen Kelly's. But her passing has moved me to tears more than once in the past two weeks. I feel honoured to be one of the many who worked with her and was helped by her. More>>

Postnatal Depression: 'The Thief That Steals Motherhood' - Alison McCulloch

Post-natal depression is a sly and cruel illness, described by one expert as ‘the thief that steals motherhood’, it creeps up on its victims, hiding behind the stress and exhaustion of being a new parent, catching many women unaware and unprepared. More>>

ALSO:

Gordon Campbell: On News From The US Election Eve

Here’s a somewhat scary headline from October 30 on Nate Silver’s 538 site, which summed up the statistical factors in play at that point: “The Cubs Have A Smaller Chance Of Winning Than Trump Does” More>>

ALSO:

Get More From Scoop

 
 
 
 
 
 
 
Top Scoops
Search Scoop  
 
 
Powered by Vodafone
NZ independent news