News came out today that the surveillance on Kim Dotcom has been ruled illegal by the High Court. There are a couple of points of interest in this.
One is that the decision was made in December of 2016 and has been delayed until now. This is sparking speculation that the decision was the cause of John Key’s resignation on December the 5th of 2016.
Another is that the GCSB has said that,
“….it has not proved possible to to please to the allegations the plaintiffs have made without revealing information which would jeopardise the national security of New Zealand.”
This, in my view, would point to the methods of intercepting the information involving another country and its surveillance systems. Last month the Herald reported,“The GCSB documents do contain an admission of NSA involvement, although it was not made outright.“ which would seem to agree with that viewpoint.
A third point of interest is that in the High Court judgement the GCSB seems to contradict the outcomes of the Kitteridge report of 2013.
That report was the result of an investigation into the legal compliance of the GCSB between 2003 and 2012. The report states that during that period the GCSB was confused as to the illegality of spying because of the multiple laws it was operating under.
“The fact that the issue had not been identified during the preceding ten years (except for the question raised by the Inspector-General of Intelligence and Security in May 2012) reinforces the point that the interplay between the two Acts is not straightforward.”
This was the get out of jail free card for the intelligence services. In response to Russel Normans request for a criminal investigation over illegally spying on Kim Dotcom and Ban Van der Kolk the police responded with,
“As for the issue of criminal intent, it cannot be established that any GCSB staff had the necessary criminal intent to illegally intercept private communications in this case and the GCSB staff cannot be criminally liable”
Or in other words, they believed they spied legally on Kim Dotcom and Ban Van der Kolk. Thus there was no intent.
But there were 85 other cases identified in the Kitteridge report.
“During that period GCSB provided 55 instances of assistance to NZSIS, which potentially involved 85 New Zealand citizens or permanent residents.”
And the High Court decision released today clearly shows that there was widespread knowledge amongst GCSB staff that they were not allowed to spy on New Zealanders. In the words of the judgement, in 2011,
“Foreigners were highlighted in green, indicating they could be tasked. Those who might be New Zealanders (and other protected persons), were highlighted in red, indicating the could not be tasked.”
This means that in the 85 cases of New Zealand citizens or permanent residents, GCSB staff did have criminal intent and should be prosecuted by the New Zealand Police.