Another month, another GCSB lie and more illegal behaviour

It just keeps getting worse doesn’t it?

GCSB found to have illegally spied on others in new Megaupload twist

The GCSB has been found to have acted unlawfully when it spied on foreigners in the FBI-led Megaupload investigation.

In doing so, it has raised the possibility the entire operation was illegal.

The new finding comes out of the High Court damages case taken against the GCSB by the Megaupload-accused and has seen the bureau refuse to put up a defence to claims its surveillance of two foreigners was unlawful.

The finding is significant because it was always assumed Megaupload-accused Finn Batato and Mathias Ortmann were valid surveillance targets because they were not New Zealand citizens or residents.

Batato and Ortmann were among those targeted by the GCSB ahead of the January 2012 raid on Kim Dotcom’s mansion and part of a damages claim taken against the spy agency.

The GCSB was drawn into the police assistance for the FBI operation against Megaupload a month before the raid to provide intelligence for the police who were tasked with arresting those involved in the filesharing website.

When the GCSB’s role was discovered, it led to admissions it had broken its own law because the spying included Dotcom and Bram van der Kolk who were both New Zealand residents at the time.

The admission led to an intensive review of the GCSB and a finding it didn’t understand its own law. The GCSB was found to have unlawfully spied on 88 people, resulting in a change in the law under which it operated and an overhaul of the entire agency.

The damages claim against the GCSB over its surveillance pushed the bureau to prove its surveillance of Batato and Ortmann matched up with its duty to the law.

But it collapsed, its defence claiming explaining its actions would betray “Top Secret” information that would endanger New Zealand.

Lawyer Peter Spring – acting for van der Kolk and Ortmann – released the court documents saying it showed “the whole surveillance operation fell outside the authorisation of the GCSB legislation as it was at the relevant time”.

He said “the GCSB has now admitted that its illegal conduct went far further than was previously revealed”.

The documents show the GCSB stating “the circumstances of the interceptions of Messrs Ortmann and Batato’s communications are Top Secret and it has not proved possible to plead to the allegations the plaintiffs have made without revealing information which would jeopardise the national security of New Zealand”.

It meant “the GCSB is deemed to have admitted the allegations” around how the communications of Batato and Ortmann were carried out.

Barrister Grant Illingworth, QC, who has represented van der Kolk and Ortmann in court, said it was the end of the damages case for Ortmann and van der Kolk.

He would not comment on whether a settlement was reached with money paid to those subject to unlawful surveillance.

Illingworth said the legal team had studied the GCSB law at the time and attempted to match up the rules the spy agency had to follow with the action it took against those under surveillance.

It was difficult to do so and so the GCSB had been challenged to provide information showing it had not broken the law.

“The Crown could have denied these allegations and disputed them but they have been admitted.

“So what has been admitted is a deeper form of illegality than what has been admitted previously. The fact there had been illegality irrespective of the residency issue has never before been identified.”

Illingworth said it raised the question as to whether Parliament had a full understanding of the GCSB’s unlawful actions when the law was changed in 2013.

He said the admission by the GCSB had relevance to the drawn out extradition of Batato, Dotcom, Ortmann and van der Kolk. The possibility had been raised at earlier hearings but had been ruled out by the judge hearing the case.

“If there was illegality in the arrest and search phase and that illegality has not previously been made known in the extradition context then it could be relevant to the extradition.”

A spokeswoman for the GCSB said “it was not possible for GCSB to plead to the allegations … without revealing information which would jeopardise the national security of New Zealand”.

She said van der Kolk and Ortmann “settled their claims earlier this year”.

The long-running extradition case is in its fifth year with no end in sight. The initial district court ruling that the Megaupload-accused should be extradited was upheld in the High Court and was then appealed to the Court of Appeal.

The four men were targeted by the FBI for their involvement in Megaupload, a filesharing website which consumed 4 per cent of internet traffic at its peak.

The FBI alleged it was the centre of a massive copyright breach with the business earning millions of dollars by allowing the download or streaming of popular movies and music.

The four accused, who deny the claims, face decades in a US prison if extradited and convicted.

This follows admissions that spying went on longer than the GCSB had sworn to and revelations that the Americans simply reactivated the surveillance equipment remotely without even informing us of that meaning the entire NZ surveillance network is open to the NSA anytime they want???

If the outright injustice, hypocrisy and threat to our democracy doesn’t move you at all, perhaps knowing we might get sued if Kim wins might concern you…

New twist in Kim Dotcom case
The managers of the nation’s finances were kept at arm’s length when the Kim Dotcom case required Kiwi taxpayers to underwrite a potential future legal suit from the internet entrepreneur, a new document shows.

Instead, then-police commissioner Peter Marshall signed the “undertaking in respect to costs and damages” – the agreement which would allow Dotcom to sue New Zealand if it emerged the FBI case against him was unfair and unfounded.

It was the first time that the Crown was required to give an “undertaking” in a case where the property of someone facing charges was seized and was because the charges were brought by a foreign agency.

The need to provide an “undertaking of liability” emerged after police seized the tycoon’s cash and property without notice. The law required Dotcom have the chance to challenge the seizure and be given formal notice of his right to sue the Crown.

The need to provide an undertaking in March and April 2012 surprised the Crown and the Herald sought details of the debate and consideration over the risk to which NZ was exposed through the Official Information Act in July 2012. Treasury refused to supply the information sought so the Ombudsman was called on to investigate.

After three years of deliberation, Chief Ombudsman Dame Beverley Wakeham found there was a “public interest” which would be met by releasing a summary, which Treasury sent to the Herald this month.

The summary showed there were meetings “to discuss the case and how to inform ministers” were held Crown Law, police, the Ministry of Foreign Affairs, Ministry of Justice and Treasury.

On March 22 2012 Finance minister Bill English was told he “did not have a role in approving or signing off this kind of undertaking”. Instead, it was the Commissioner of Police’s role under the Criminal Proceeds (Recovery) Act.

While Mr English was kept briefed – including a briefing from Mr Marshall and Attorney General Chris Finlayson – there was no process established through which he was able to be formally involved in the undertaking.

Under the Public Finance Act, Mr English is responsible for matters which might impact on Crown accounts. Dotcom has claimed the loss of Megaupload cost him more than $2 billion although others have argued the impact is far less.

The summary provided to the Herald said there had been a review of the mutual legal assistance framework of which Treasury was a part. It “intended to use the forum to recommend the establishment of a consultation process and set out criteria for issuing undertakings”.

The requirement to give an undertaking to the court to meet any damages was a factor which put Sony off joining a civil case seeking to claim Dotcom’s assets, emailed hacked and released last year revealed. Sony’s top copyright lawyer, Aimee Wolfson, said it was “not at all unimaginable” Dotcom would avoid extradition or even successfully defend himself in the United States.

The studio is not a participant in a case in NZ courts with discussion in the emails showing potential exposure to a legal suit from Dotcom concerning executives.

The risk to which New Zealand is exposed was underscored by a legal opinion released today from Harvard University’s professor of law Lawrence Lessig, one of the world’s leading experts on copyright law. He said the FBI charges would not stand up in US courts and there was no basis in law for Dotcom to be extradited.

…Sony decided not to sign up to the case against Dotcom because they believed there was a chance he would get off these trumped up charges and in turn sue everyone involved in taking him down to the tune of $2billion???

This case is not even close to being resolved and I don’t think NZers comprehend how much we could be up for if Kim Dotcom wins.

This politically motivated prosecution so America could stamp their jurisdiction into cyberspace while protecting Corporate Hollwywood’s profit margin isn’t just an injustice, it could be a very expensive injustice.