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.

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