Legal Beagle by Graeme Edgeler


Kim Dotcom and the GCSB

John Key, the Prime Minister, has written the Inspector-General of Intelligence and Security, Hon. Paul Neazor (a retired Justice of the High Court, and former Solicitor-General) to ask him to investigate some unlawful actions undertaken by the Government Communications Security Bureau (the GCSB).

The existence of the activity was confirmed following the Crown Law Office filing in a memorandum in the High Court challenge that New Zealand permanent resident Kim Dotcom has filed in respect of the search of his Coatesville property.

When allegations of illegal behaviour are made, it is usual for lawyers like me to pontificate on whether laws have been broken, and by whom. But we appear to have a different situation here. The conclusion of illegality appears to be agreed by everyone with any of the facts. Ian Fletcher, the Director of the GCSB, the PM, Crown Law and others seem to be in general agreement - someone in the GCSB did something illegal. Who and what is not publicly clear, but may become moreso following the investigation.

There are not a great many details about what exactly the GCSB were doing. At the media conference at which the Prime Minister announced this, he would not even confirm that any interception had occurred, leaving open the possibility that some illegal action short of illegal interceptions had taken place. (Although subsequent media reports carrying statements by one of Kim Dotcom's lawyers appear to indicate the the Crown memorandum filed in the High Court accepts that there were unlawful interceptions.)

The question of exactly how these any interception might be illegal is dealt with by two principle laws: the Government Communication Security Beareau Act 2003, and the Crimes Act 1961.

The role and powers of the GCSB are admirably clear from its statute. Its roles involve obtaining foreign intelligence, and helping to protect the Government's communications and information systems, including from electronic surveillance.

The GCSB is prohibited in all circumstances from targetting domestic communications.

The Bureau has powers to intercept communications via:

  • interception warrants (e.g. to bug telephones) granted by the GCSB Minister (who is always the PM); or
  • computer access authorisations granted by the GCSB Minister

They also have a general power to do these things without warrant if that interception does not involve:

  • physically connecting an interception device to a network
  • installing an interception device to intercept communications taking place there (e.g. bugging a house)
  • or if the computer access is limited to access to 1 or more communication links between computers or to remote terminals.

For example, the GCSB probably do not need a warrant to see what someone is sending over an unsecured wireless connection (or secured, for that matter, if they can break it). In this respect, they are different from the Police, who would.

Again, I make clear that interceptions related to domestic communications (which include those of New Zealand citizens and permanent residents), cannot be intercepted by the GCSB for any purpose.

At yesterday's media conference (thanks, Scoop!), John Key pointed out that his permission was needed to intercept the communications of New Zealand Citizens. This is correct. Key is also the Minister in charge of the Security Intelligence Service (the SIS), which operates under different legislation - the New Zealand Security Intelligence Service Act 1969. That Act does permit surveillance of New Zealand citizens and permanent residents. It sets up a similar process by which the Minister (again always the PM) can issue intelligence warrants to allow the SIS to surveil.

As an additional precaution, where the SIS seeks to conduct surveillance of a New Zealand citizen or permanent resident, not only is the permission of the Minister needed, but the permission of the Commissioner of Security Warrants (another retired Justice of the High Court, Sir John Jeffries). The SIS can obtain intelligence warrants in respect of other people with the agreement of the Prime Minister alone.

Because the GCSB cannot in any circumstance lawfully intercept the communications of New Zealanders, the additional precaution of the Commissioner of Security Warrants is not in place for the GCSB.

This much is largely indisputable. I do not know what the members of the GCSB have actually done, but if it involved intercepting the communications of the Mr Dotcom, it will not have been permitted. This is the case whether it was the type of interception that would have required a warrant signed by the PM had it been in respect of non-New Zealanders, or not.

The other aspect of the case may be something the Inspector-General will look into or it may instead be for the Police to look into, although I'm not really sure how that would work. That is the question of whether any interception was criminal. What appears to have been conceded is that what happened was that the GCSB (or someone in it) did something that they were not permitted by the GCSB law to do. But just because something is not authorised, does not mean it is criminal.

The Government Communications Security Bureau Act does not make it an offence for someone in the GCSB to intercept the communications of a New Zealand permanent resident, like Kim Dotcom. That is left to the ordinary criminal law, and the criminal law standard of proof is required.

Numerous comments on the so-called teapot tapes have gone to some lengths to explain the law around the illegal interception of private communications. Without know what is even alleged, let alone what has happened, or can be proved beyond reasonable doubt, it is impossible to say what will happen, but the questions of law are likely to be relatively simple.

Section 216B(1) of the Crimes Act provides that "... every one is liable to imprisonment for a term not exceeding 2 years who intentionally intercepts any private communication by means of an interception device." Section 216B(2) provides a defence for those acting in accordance with specified lawful powers, including powers under the GCSB Act, the NZSIS Act and others.

The factual scenario surrounding the conversation between John Banks and John Key that raised so many thorny questions, seems unlikely to arise here. It was not clear whether Bradley Ambrose intended to record the conversation; nor was it clear whether the conversation was a private communication. I am having some difficulty constructing a scenario in which either of these questions is likely to arise here.

It will be slightly more complicated if what is alleged here involves access to a computer system, rather than interception of a communication. Section 252 of the Crimes Act provides "Every one is liable to imprisonment for a term not exceeding 2 years who intentionally accesses, directly or indirectly, any computer system without authorisation, knowing that he or she is not authorised to access that computer system, or being reckless as to whether or not he or she is authorised to access that computer system." I can quite easily construct scenarios in which the requirement for knowledge or recklessness as to the lack of authorisation may be difficult to establish beyond reasonable doubt.

Feel free to speculation wildly. But, you know, don't be a dick :-)

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