Judiciary rolls over for government, US and Hollywood

The surveillance spreads its tentacles

Dotcom search warrant ruling overturned

Lawyers for Kim Dotcom say the internet businessman is likely to fight a Court of Appeal ruling that search warrants used to raid his house were lawful.

Radio NZ,

19 February, 2014

The decision made public on Wednesday overturns a ruling by Chief High Court judge Justice Winkelmann in June 2012 that the warrants were too broad and therefore unlawful.

Police carried out search warrants on the properties of Kim Dotcom and Bram van der Kolk on 20 January 2012 and seized some 135 electronic items. The warrants were executed under the Mutual Assistance in Criminal Matters Act 1992 at the request of the US Department of Justice.

The United States is is seeking the extradition of Mr Dotcom, Mr van der Kolk, Mathias Ortmann and Finn Batato on a number of charges, including breach of copyright and money laundering.

Crown lawyers argued at a hearing in November last year there was enough information in the application for the warrants to make it clear what police were looking for.

The Court of Appeal judges accepted that, saying the warrants were defective in some respects, but there was no miscarriage of justice.

It concluded that Mr Dotcom and the other respondents would have understood the nature and scope of the warrants - especially in light of their arrest warrants - which were not defective and explanations given to them by police when the properties were searched.

However, the appeal has been only partially successful. The court ruled that a decision to send copies of material seized to authorities was a breach of agreements.

On 16 February 2012, the Solicitor-General gave a direction to the Commissioner of Police under the Mutual Assistance in Criminal Matters Act 1992 that the items seized on the searches were to remain in the "custody and control" of the Commissioner until further direction.

In deciding that the removal of the clones (copies) of the electronic items from New Zealand to the US was not authorised, the court said it was satisfied the Solicitor-General's direction applied to the copies and that their removal was therefore in breach of the terms of the direction.

A lawyer for Kim Dotcom, William Akel, says it is disappointing that the warrants have been ruled lawful and any appeal has to be lodged within 20 working days.

"One always prefers to succeed in any appeal, but the important point now is that we have to consider and analyse the decision in some detail, and consider an application for leave to appeal to the Supreme Court."

Crown Law on Wednesday declined to comment on the ruling.

No quick decision - PM

Prime Minister John Key is not expecting any quick decision on the extradition Kim Dotcom despite the Court of Appeal ruling.

Mr Key said on Wednesday there are likely to be many twists and turns in the case and he is certain it will not be resolved before this year's election.

"It's a very long process. I mean, if somebody wants to appeal an extradition and take legal action at every nook and cranny, it can take a very long time."

Mr Key said he cannot say much more about the matter, given it is likely to be subject to further legal arguments.

Gehan Gunasekara: Dotcom case a warning on privacy

Politicians right to seek out internet tycoon because he is at the centre of issues that will feature at election

NZ Herald,

19 February, 2014

An editorial in the Herald argues that politicians including the Greens' Russel Norman and New Zealand First's Winston Peters somehow demean themselves by visiting internet tycoon Kim Dotcom's mansion in Coatesville.

Dotcom's foray into politics is depicted both as a popularity contest between the Prime Minister and himself and at the same time as a distraction that is bound to divert support from the opposition parties. The editorial further suggests the rule of law is being undermined by Norman's opposition to Dotcom's extradition to the United States.

These contentions are seriously flawed. All political leaders ought to visit Dotcom for the simple reason his case has revealed the New Zealand Government has not itself adhered to the rule of law. Leaving aside the merits of the criminal case against him the Government broke the law by having the Government Communications Security Bureau spy on his communications and those of around 80 other residents whose identity remains unknown.

Were it not for the Dotcom case this fact would have remained a secret.

The Government's response to this was to speedily pass legislation last year legitimising its own illegal conduct. This is tinpot banana republic territory. If Fiji or Zimbabwe had engaged in such conduct we would have been the first to condemn it. The GCSB Bill was opposed by a great majority of New Zealanders and passed only by the slenderest of margins, ironically, given his own entanglement with Dotcom, with the support of John Banks.

Opinion polls last year convincingly suggested this was the reason for National's slide in support, not personal support for Dotcom himself.

John Key now obviously hopes people's memory of the assault on their privacy has faded. That is unlikely to occur, especially now that the Prime Minister has reminded us he has been using his new powers to scrutinise, for instance, individuals' travel plans and follow this up by denying passports to those wishing to travel to Syria to fight the Assad regime.

Who knows, perhaps in time individuals will be prevented from travelling to concerts or conventions which are deemed to be a risk to public safety in the Prime Minister's eyes. This is precisely the Big Brother surveillance state that increased information collection and monitoring leads to.

Opinion polls continue to demonstrate New Zealanders care deeply about their privacy. The GCSB legislation allows the Prime Minister to authorise the collection of metadata - labelled "information infrastructure" - about New Zealanders and to share it with anyone he wishes here or overseas.

This includes the websites we visit and a list of all our contacts and phone calls meaning what we do and who we associate with are now the Government's business, not our own even when we are acting lawfully.

These issues will remain alive regardless of whether Dotcom succeeds or fails in his attempts to defeat extradition to the United States. It may be unwise for him to enter politics here in the meantime but he has every right to canvass politicians as to the serious issues his case has brought to light, especially those concerning privacy.

He ought certainly to fund a campaign reminding voters of the hypocrisy involving John Key's famous complaint over the intrusion into his "teapot" conversation with John Banks while at the same time being happy to snoop on the rest of us.

Privacy will be an election issue, you can bet on it.

Gehan Gunasekara is an associate professor in commercial law at the University of Auckland Business School who specialises in information privacy.