Dotcom Given Green Light to Sue Kiwi Spies, But Evidence to be Withheld

Andy
March 7, 2013
65
GCSB,
kim dotcom,
Mega
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Kim Dotcom and his associates have chalked up another win in their New Zealand extradition battle. Last year High Court judge Justice Helen Winkelmann gave Dotcom permission to sue GCSB, the Kiwi spy agency, for illegally spying on him on behalf of the FBI. The ruling was challenged by the Attorney-General but today the Court of Appeal announced that compensation can indeed be sought from GCSB. The downside is that access to evidence will again be restricted.

In June 2012 the police search and seizure raids against Kim Dotcom and other alleged members of the so-called ‘Mega Conspiracy’ were deemed to have been carried out illegally.

Two months later in August it came to light that a Kiwi spy agency, the Government Communications Security Bureau, had been spying on both Kim Dotcom and co-defendant Bram Van der Kolk. GCSB is not allowed to spy on New Zealand residents and was later forced to concede that it had unlawfully intercepted communications.

In December 2012 Justice Helen Winklemann ordered GCSB to be joined as a defendant to
Dotcom’s lawsuit against New Zealand’s Attorney-General over the illegal January raid and ordered GCSB to reveal details of their secret surveillance.

This High Court ruling was subsequently challenged by the Attorney-General and this morning the result of the appeal was made public. It’s a mixed bag, but with Dotcom and friends coming out on top.

The Court of Appeal said that although it is not usually appropriate for judicial reviews to include compensation claims, it would rubber stamp the request for GCSB to be added to the case. This means that Dotcom will be able to pursue compensation claims against the state during an upcoming hearing in April.

Going some way to balancing the success on both sides, the Court handed a win to the Attorney-General in respect of the earlier discovery ruling.

Previously the High Court said that GCSB must hand over all of the documents related to the secret surveillance operation carried out against Kim Dotcom and co-defendant Bram Van der Kolk. But the Court of Appeal ruled that discovery will now only stretch as far as revealing that information exists and where it was sent. Access to the actual content of the documents will not be permitted.

“We look forward to holding GCSB spy org accountable,” said Dotcom’s lawyer Ira Rothken this morning. “Doing so will not only protect @KimDotcom’s rights but the rights of all NZ residents.”

Following the Court of Appeal ruling, Kim Dotcom pondered whether the Kiwi government will continue to press the case against him.

“How much longer will the New Zealand government hurt its reputation on a global scale by supporting a malicious U.S. contract prosecution?” he said.

In closing the Court of Appeal urged all parties to “co-operate to ensure that the pleadings are brought into proper order and that the issues before the High Court are determined as expeditiously as possible,” but considering the complexity of the case, that won’t be anytime soon.

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js

Surly he needs to know what they gathered and gave to the USA so that evidace can be excluded from his trial
- icec0ld
  
  Any sane judge would take note of how the evidence used in the trial gathered but if the extradition goes ahead and the trial happens in the USA’s ball park, we safely throw out the notion of a fair trial, let alone a sane judge.
  
  You get more justice in a 3 ring circus than you’ll get out of the US when we start looking at copyright law rulings.
  - MadAsASnake
    
    I would hope that the NZ courts at the very least make it clear that any evidence not permissable in NZ can be used in the case. If such an undertaking is not forthcoming from the US authorities, along with a declaration of what that is, extradition should be denied immediately.
    - icec0ld
      
      The problem is I doubt US courts would heed an unlawful evidence ruling from NZ.
      
      As far as the US is concerned they have what they wanted and clearly intend to use it.
      
      I believe the only way US would heed such a ruling would be if such a term was included as part of his extradition from NZ to the US and even then I have sincere doubts they’d keep to such a bargain. It’s clear the entire US case is built around this unlawful evidence.
      
      It is also btw, still a complete mystery to Kim and NZ courts exactly what evidence has been sent to the US (Against court instructions too). If NZ has any sense it won’t follow through with this extradition since it’s so obvious the USA has contempt for NZ’s courts and cannot reasonably expect them to follow any rules they set.
    - bobmail
      
      Further, what is unlawful in one country may not be so in another. For spying, the US (as a sovereign nation) isn’t bound by NZ’s local laws in this regard. What might not be permissible in the NZ courts for criminal action in NZ may be perfectly fine in the US courts.
      
      If NZ fails to follow through on the extradition, you can bet that they will find themselves facing a lot of pressure from the US (and many other countries) in the future, including perhaps having other treaties removed or declined if the US feels they have been disrespected.
      
      I don’t think that NZ would want to get into that, and any decline of an extradition request would likely follow all the way up the NZ court system. The chance that Kim isn’t extradited is very low, IMHO.
      
      I suspect what may come in the long run is that Kim’s resident status gets revoked at some point, he gets booted out of the country, and the whole process starts again in the next place he tries to hide.
    - icec0ld
      
      “Further, what is unlawful in one country may not be so in another. For spying, the US (as a sovereign nation) isn’t bound by NZ’s local laws in this regard. What might not be permissible in the NZ courts for criminal action in NZ may be perfectly fine in the US courts.”
      
      This was not a US run spying agency dumb dumb. I’m sorry to be blunt but you are clearly not well read enough to speak on this.
      
      “If NZ fails to follow through on the extradition, you can bet that they will find themselves facing a lot of pressure from the US (and many other countries) in the future, including perhaps having other treaties removed or declined if the US feels they have been disrespected.”
      
      Watch NZ care? Most of NZs trading is with China and it’s related eastern markets and has existing treaties and agreements with the US.
      
      To decline mutual trade agreements and treaties over the refusal to extradite an innocent man, the US would likely end up looking like (even more of) a bully. Besides, at this stage, it’s the US that’s begging for trade, not NZ
      
      “I suspect what may come in the long run is that Kim’s resident status gets revoked at some point, he gets booted out of the country, and the whole process starts again in the next place he tries to hide”
      
      Keep dreaming. Residency in NZ can only be revoked on existing convictions, not impending ones and is extremely extremely unlikely and unusual.
      
      This whole incident has been a giant embarrassment for NZ government. It would be political suicide at this stage to call for the deporting of Kim now. No one in NZ would support or propose such idiocy.
    - Zebra52
      
      You lost your point with your childish name calling. Grow up.
    - icec0ld
      
      Post was made 11 days ago. Who needs to grow up again now?
      
      Hardly invalidates any argument set forth. The poster replied to is an idiot, calling a clearly NZ government run organization an arm of the US (as per labeled in the motherfucking headline) with no grasp of the context beyond what he can twist to his perverse view If you think it’s defensible I suggest you put into words what you disagree with so I can tear it apart :)
anonymous

‘considering the complexity of the case, that won’t be anytime soon.’

even more so, considering the lies that have been/are being told by the USA DoJ on behalf of and for the USA entertainment industries, it’s going to take more than time. as much evidence as possible has now been removed from examination and from being presented,so, yet again, the defense is difficult, to say the least. add in the fact that atm the extradition has been approved, without having to provide definitive evidence of what crimes have been committed, it’s getting more ridiculous. the thing being shown the most is, however, how far NZ law enforcement and the govt will bend over to do what the USA orders, rather than having to balls to stand against it and follow it’s own course of action. this is a typical situation where the USA bullies others to get what it wants, regardless of whether right or legal or not. this ‘i want so-and-so and i want you do to this so i can get it or suffer the consequences’ attitude of the USA needs to be put in it’s place before the world is led down a path over something it cant go back on
- bobmail
  
  As mentioned, the problem is that for purposes of extradition, there is no real decision as to the admissibility of evidence, that is something that is argued at a preliminary hearing in the US, and not in the extradition court in NZ. The Superior Court in NZ has pretty much ruled that provided the US can show that they have a case, one that is answerable in a US court, then the requirements for extradition will be met. The NZ court doesn’t get to try to the case, they don’t get to decide if the evidence is valid or not, they just get to say “yes, there is a case, this person would be arrested the moment they reach the US, and yes, the charges are significant enough to meet up with our treaty obligations”.
  
  What happens in the US is AFTER all of that, not now. Kim’s defense against extradition has been to try to get the case and all of the evidence tried in NZ, and that is just not going to happen any longer.
PirateSoldier

The only thing that will happen is another delay tactic. Just like mega lets be honest nobody is getting any data back and mega will never resurface online.
- Violated0
  
  That has yet to be determined. The wheels of Justice grand very slowly but you are at least right that these Judges have failed to hold these troublemakers (the Government) to account,
- Ted
  
  I dont know how much of a win it is. “no you cant see the evidence, yes you can sue the NZ spy agency, and take however many millions from the NZ govt. and taxpayers – the suckers who got caught in the middle of this”. I can hear the US laughing from here at anyone who thinks its a win.
dondilly

Nothing has been said of the data the fbi took out of the country. While there were disk images resultant from the illegal raid which may have been a result of the illegal spying.

The elephant in the room is the outstanding court order on the fbi to return all data taken out of the country, are they appealing the order or in contempt of it?
Any data obtained through illegal spying is inadmissable in court as is any data seized during the illegal raid.

As much of the data is digital, it is easy to duplicate so even if the fbi finallhy comply with the order, there is no guarantee the data wont resurface in US court laundered into legitimacy via the lower standards of the US justice system. The NZ courts have a duty of care not to extradite a person to a country where he is unlikely to get a fair trial.
- utuxia
  
  I think the US is simply saying, we order you to do things, not the other way around.
- MadAsASnake
  
  I suspect that the NZ courts will be careful not to close the process prioir to a hearing – any less would be challenged by the NZ Govt and US authorities. The fact that the prosecution is totally without basis and chock full of government inteference has not been lost to the courts, who have actually shown a good deal on independence and sense. I still think we have to wait till August.
- bobmail
  
  The US courts MAY at some point in the future look at the sources of the material, but at the same time, there is plenty of case law that shows that material obtained incorrectly in other justification may still be admissible in the US. The data, once made available, cannot be unseen, as it were. The actions were not that of US law enforcement, they are only using what was provided by a third party outside of the US.
  
  It’s unlikely in my mind to be enough to block extradition, and certainly not enough to get the case “tried in NZ” as Kim is working hard to have happen (and failing). It might be an issue later in the US, but admissibility of evidence is something to be argued by the defendant in front of a judge, not by long distance proxy.
  - Colin Carr
    
    It’s unlikely in my mind to be enough to block extradition,
    
    But your, for want of a better word, ‘opinion’ invariably just parrots the views of the MAFIAA and is therefore of no value in a reasoned debate.
  - icec0ld
    
    “failing”? Heh, sadly mistaken.
    
    The extradition court itself has demanded to see the full disclosure of evidence (not to be handed to Kim at this point any more) has still not happened and the US prosecution is (yet again) seeking an extension.
    
    Do you have any case law regarding unlawful evidence being allowed to be used? US law specifically deals with such circumstances with the term “Fruit of the poisonous tree”. Under US law unless evidence can be proved to meet certain conditions it wouldn’t be allowed to be presented in court. I doubt they’d manage since the warrants they issued were invalid, the NZ police conducted spying operations with no jurisdiction and to top it off, obtained and removed evidence against the courts explicit instructions.
    - bobmail
      
      “The extradition court itself has demanded to see the full disclosure of evidence”
      
      yes, the the superior court in NZ ruled that this is NOT going to happen, and is not required for an extradition case. It’s a huge loss (and a failure) for Kim, as it pretty much kills all of his objections to the extradition. The judgement says that a basic presentation is all that will be required, not a full disclosure of evidence and all of the arguments that you know would come about admissibility – again which is not relevant to the NZ court.
      
      The “fruit of the poisonous tree” may only apply to the actions of US authorities in the US, and may not extend to actions of other law enforcement officials in other places. Further, that is still not a reason for NZ to deny extradition, as the question of excluding evidence in the US court is part of the US process that will happen if and when Kim is in the US in front of the courts, and not before. What the NZ police did or did not do may not be relevant in the US court, as it is third party sourced information. It’s nowhere near as simple as you try to make it sound. Kim tried to hide his apparently criminal enterprise by playing between jurisdictions, and now it looks like it is going to bite him in his (large) ass.
      
      The ruling by the superior court was a significant blow against Fat Kim and his attempt to get the case tried in NZ, and unless the Supreme Court agrees to hear his arguments (not a given at all), then he will face an extradition hearing with the rules as set now.
    - icec0ld
      
      “The “fruit of the poisonous tree” may only apply to the actions of US authorities in the US, and may not extend to actions of other law enforcement officials in other places. Further, that is still not a reason for NZ to deny extradition, as the question of excluding evidence in the US court is part of the US process that will happen if and when Kim is in the US in front of the courts, and not before. What the NZ police did or did not do may not be relevant in the US court, as it is third party sourced information. It’s nowhere near as simple as you try to make it sound. Kim tried to hide his apparently criminal enterprise by playing between jurisdictions, and now it looks like it is going to bite him in his (large) ass.”
      
      If the US with US issued warrants executed arrests and raids overseas, since the paper work for legality is in the US, I’d say that “fruit of the poisonous tree” applies.
      
      Regardless, if the US wants to enforce it’s laws outside it’s jurisdiction it is expected that they’d have follow their own rules, not that I expect them to any way.
      
      “yes, the the superior court in NZ ruled that this is NOT going to happen, and is not required for an extradition case. It’s a huge loss (and a failure) for Kim, as it pretty much kills all of his objections to the extradition. The judgement says that a basic presentation is all that will be required, not a full disclosure of evidence and all of the arguments that you know would come about admissibility – again which is not relevant to the NZ court.”
      
      That is not what has happened.
      
      Evidence has still been taken without court approval and the extradition court is still going to require that it see the evidence before the extradition happens. This evidence won’t be disclosed to Kim though.
      
      Lastly, the extradition is unlikely to go ahead. The USA has still not satisfied the biggest requirement to actually bring someone to court, let alone drag them overseas. They still haven’t served Kim or provided a valid warrant for his arrest.
TheyAreCorrupt

This whole fiasco gets even more ridiculous by the minute. So his lawyers have take a case to court where they’re not entitled to see any evidence that may actually help them, some justice system.

I do hope the governments and DoJ’s around the world are looking at this and cringing at how corrupt the whole system has become in the name of the mighty dollar.
- smallpeeps
  
  Yep, U get deep truth here, but hopefully they (FatKim, he is big) can keep fight up several years so then if USA copytrols are victorious they have lost case in public cause another service is still running.
  
  Fight is expensive and need vultures (lawyers ) so even if I dislike all this stuff I will kiwi my 10 buck to new service for fight against USA. (I cant don more than that)…. :(
  - http://twitter.com/TonyAdam16 TonyAdam
    
    as Eric implied I didnt even know that you able to profit $5739 in 1 month on the network.
  - http://twitter.com/TonyAdam16 TonyAdam
    
    …..—-goo.gl/gI6hR (Home more information)
  - One-Eyed Willie
    
    The whole thing is just a farce. The system is rigged and he won’t win anything.
- ScrewEwe2
  
  TheyAreCorrupt. YesTheyAre.
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utuxia

He wins the case, without seeing any evidence. Brilliant.
Orwell Was A Prophet

The New Zealand courts are standing up to the US (thankfully!). If they continue I don’t see how they can allow one of their citizens to be sent to a country which has secret prisons, tortures prisoners, can kill its own citizens abroad or in country, has Patriot Acted away Habeas Corpus and is contempt of many countries’ courts.
- utuxia
  
  This is why i vote libertarian.
- okok
  
  dont forget tehey was using white fosfor in thy wasrs.nd thats just hilarious
KIMDOTTY

100M USD, KTHXBYE.
JordanKratz

Good Luck KD ! We hope you will Triumph in the End.My US Government is a corrupt piece of shit.I have a feeling the day is coming when they will get what they deserve.
- The Voice of the People
  
  Yes, The world would be a much nicer place if the Americans hadn’t won the war of Independence. If only they had stayed under British rule.
  
  The U.S is making so many enemies worldwide with their bully tactics, as the old saying “What goes around, comes around” all in good time ;)
  - Who
    
    what you are failing to realize is that it was Americans that won the war NOT the fucking US government.
    - JordanKratz
      
      But then after We fought the battle and formed a Government we were all Americans…………and little by little it falls apart just like every other Empire that was ever created in the History of this Planet.
      You and I both know the Founding Fathers would probably be rolling in their Graves right now.
  - JordanKratz
    
    Karma ! Is Proper Response………..Yup, what goes around comes around.
Guest

The illegal spying by GSCB will not stop Dotcom from being extradited. Even the illegal raid on Dotcom’s home and the illegal seizure of property taken from Dotcom’s home will not stop extradition.

The Appeal Court has already ruled that the US does not have to give fuller disclosure of evidence of its case against Dotcom and that they will only have to provide a summery of evidence and this summery they already have provided in the extradition request.

Anything stated in the summery and provided with that summery will not in any way be affected by any action by the NZ police or evidence gathered as the summery with evidence was already provided before the involvement of the NZ police.

To prevent extradition Dotcom will have to prove that the charges and evidence in the summery is untrue which will prove rather difficult being as this is the evidence already gathered by the US authorities and before the involvement of NZ police and as the US has not provided fuller disclosure of that evidence to either the NZ court and to Dotcom himself and dosen’t have to now that they are only required to provide a summery which they already have done so then Dotcom faces an uphill struggle with avoiding extradition.
- MadAsASnake
  
  The US will actually have to provide evidence of a prima facie case if they want extradition. It looks doubtful that the US can do that.
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DanxRanx

I suspect fatboy will celebrate with a plethora of cheeseburgers!

WorldAnon.da.bz
- HovisPresley
  
  The proper group collective noun for cheeseburgers is ‘an Elvis’ – an Elvis of cheeseburgers. ;)
Asashii

know one cares about this over eating fat @$$ hypocrite!
- IHaveNoBalls
  
  News is News
- Scary_Devil_Monastery
  
  Do you care about due diligence and common jurisprudence?
  
  Or will you just wait until the US has established how to nail innocent bastards no one really cares about until you start to dimly realize that also means they can reach innocent people who a lot of people care about?
  
  Either you want Dotcom to have a fair trial…or you don’t care and stand there looking like an idiot when the same method is applied to what you DO care about. It’s that simple.
- overloader
  
  Evidently they do. The same evidential state cannot be claimed for you though.
Bastard

Dotcom is a prepotent fat bastard
- IHaveNoBalls
  
  His website now has a global rank of 1,971. Its climbing every day.. I bet you hate that :D i think its funny, fuck the DO”J”
  - downloader
    
    well the word on the cyber street is that the DOJ is monitoring fat boy and his new service. so you better grow some.
    - overloader
      
      Most women don’t have balls – but you’ve likely never had any intimate experience of the lady variety have you?
    - Guest
      
      FUCK the DOJ
- overloader
  
  That’s a cunning way of calling his children fat. What do you have against them in particular?
Dewsh Baggins

It’s like being granted the secret documents on the kennedy assassination, and seeing that every line has been blacked out.
- MadAsASnake
  
  Not a lot of use, but I suspect that the number and routing of these documents may prove interesting. There is a rat in there somewhere.
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Who

um…wasn’t he already given the green lite to a wile back?
Whatever

So for which country is the “the Kiwi spy agency” exactly working ?

In the eyes of New Zealand citizens they should be considered traitors for spying on their own country on behalf of a foreign country.

Those involved in this spying scandal should be tried for treason like it is done with other captured double spies.
RIAAtarded

I have a question how is it disclosure work in the USA and New Zealand. Where I’m from they can’t refuse the request as it violate ones rights to a fair trial and proper representation based on the facts of the case. Just based on the refusal the court would throw it out and might even sanction the prosecution for not providing it. How can MegaUploads prepare a proper defense when the facts of the case as DOJ sees them hidden? This whole ‘because I said so’ as a answer is appalling and at the levels this is being handled at I expect more from law enforcement and government officials. It puts us all on notice that as voter justice and your right will continue to be suspended at their pleasure. You expect a certain amount of shady stuff to go one behind close doors but it is rarely so flagrant or public as this.
bobmail

It’s not really a win, Kim still has a fairly big mountain to climb to get a favorable verdict, and you can imagine that considering how much of a pain in the ass he has been in the rest of his cases in NZ, don’t be shocked if this one is appealed all the way to the surpreme court, many, many years from now.

Kim’s vapid question about “How much longer will the New Zealand government hurt its reputation on a global scale by supporting a malicious U.S. contract prosecution?” is classic Kim. He just wants you to ignore all the wrongdoing, and the fact that charges have been filed in the US against him. He’s still trying to effectively get the case tried in NZ, and he will fail going down that road.

Kim is pretty clever, but he also seems to be good at flogging a dead horse.
- Whatever
  
  You and your inmates are flogging a dead horse.
  
  Kim is just the enemy of the enemy so he is not really a loss in the long run to many here. The longer he keeps the US busy the better and as long as the US determined to get him he will fight.
  
  The US could have granted amnesty and kept or wiped the servers and probably get away with it. If it is to his advantage (enough profit and no prosecution) Kim will turn and sign such an agreement. This would have been a win (guilt admission and MU gone) for you trolls. It would set the stage for other illegal take downs. The continuation and finally a win for Kim will have a devastating effect on the imaginary property industry in the public opinion and courts. Good thing the US DOJ is too blind or stupid.
  
  Secondly everyone already moved on from Mega Upload so there is nothing to salvage there. Your are fighting windmills now.
  
  Not many here (except you) have any illusions about Kim’s goals.
  - bobmail
    
    Call the pirate party, one of their inmates escaped.
bobmaill

They have had people extradited for less and with less evidence. At least the NZ gov/courts aren’t appearing to be bending over quite so easily as the UK gov.
http://www.facebook.com/james.h.hoffman James H. Hoffman

fbi need to stay on u.s. soil.
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Dotcom Given Green Light to Sue Kiwi Spies, But Evidence to be Withheld

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