Not only were the MPAA and RIAA amassing information, the governments of the United States and New Zealand were neck-deep in the investigation too, using the FBI and local police to gather information. What soon became evident, however, is that the authorities in New Zealand did so while breaking the rules.
Between 16 December 2011 to 22 March 2012, New Zealand used the Government Communications Security Bureau (GCSB) agency to spy on the private communications of Kim and Mona Dotcom, plus Megaupload co-defendant Bram van der Kolk. This was hugely problematic.
GCSB is an intelligence agency of the New Zealand government responsible for spying on external entities. It is forbidden by law from conducting surveillance on its own citizens or permanent residents in the country. His standing in the country meant that Dotcom should not have been spied on.
“Of course I apologize to Mr Dotcom, and I apologize to New Zealanders,” then New Zealand Prime Minister John Key later said.
Since it was established that New Zealand illegally spied on Dotcom, the Megaupload founder has been trying to find out what information the GCSB gathered about him, then wife Mona, and former colleague Bram van der Kolk. According to Dotcom, there was a total of 87 breaches, all of which the government wants to keep secret.
Since then, Dotcom has been fighting to gain access to the information GCSB illegally obtained, while seeking compensation for the damages caused.
In a ruling handed down this morning, the High Court details its findings in respect of a three-day hearing that took place early April 2017, during which GCSB said the raw, unredacted information should be withheld from Dotcom on national security grounds.
GCSB and the government argued that the public interest in the disclosure of the material is outweighed by the public interest in withholding it, adding that the security and defense of New Zealand would be compromised on the world stage.
For their part, the Dotcoms said that nondisclosure of the unredacted documents breaches their rights under the New Zealand Bill of Rights Act 1990. Given that any damages award is directly linked to the extent and nature of the illegal intrusions into their private lives, access to the documents is paramount.
That being the case, they argued that the public interest in disclosure outweighs any public interest in the information being withheld.
This morning, citing a 2013 Court of Appeal verdict that ruled the GCSB didn’t have to release the raw communications, Justice Murray Gilbert insisted that the recordings will not be released.
“A number of the redactions in the discovered documents are to protect the identity or contact details of personnel who were involved in or associated with the operation or copied into email communications concerning it,” Justice Gilbert wrote.
“It is hard to see how any of this information could be relevant to the relief that should be granted in this proceeding. Again, the public interest in withholding disclosure of this information far outweighs any public interest in its disclosure.”
In a statement, Kim Dotcom expressed his frustrations, noting that the government is doing everything it can to suppress details of the illegal surveillance.
“After being caught, the GCSB has fought to keep what it did, and how, a secret from me and from you, the New Zealand public. Worse, it seeks to hide behind ‘national security’ to keep the truth from us,” Dotcom said.
“To keep this secret, the GCSB applied to the High Court. It filed secret evidence and secret submissions. The GCSB’s lawyers were heard in a ‘closed’ court with the Judge, where they made secret submissions and secret witnesses gave secret evidence.”
Dotcom said neither his lawyers nor the public was allowed to be present during the hearing. And when his legal team could be heard, they were significantly hampered in their work.
“When my lawyers were heard, after that hearing, they had to make submissions as to why information they were not allowed to see, for reasons they were not allowed to know, should be disclosed. They were effectively shooting at a moving target, in the dark, with one hand tied behind their backs,” Dotcom said.
The Megaupload founder suggests there is there is a clear double-standard when he has to be tried in public for his alleged crimes, but when it comes to offenses carried out by the government, the process takes place behind closed doors.
“I will appeal this judgment and ask the Court of Appeal to shine some cleansing sunlight on what happened here. If there is transparency, there is accountability, and we can prevent this happening again,” he concludes.
Update July 21, 2017: NZHerald is reporting that the spying on Kim Dotcom appears to have gone on for two months longer than previously admitted.
“The revelation – if accurate – would open a can of worms over sworn admissions the GCSB has made in the High Court and the Court of Appeal over assistance given to police ahead of the FBI-inspired 2012 raid which saw Dotcom and three others arrested,” the publication said.
“It would mean the unlawful spying carried on after the GCSB knew that it was illegal. If the spying continued a month after the GCSB knew it had broken the law, it would likely compel a fresh investigation.”