Who watches the watchmen? Kim Dotcom and the GCSB

Joel Cosgrove

The Kim Dotcom affair is an intriguing one. As interesting as Dotcom might be as an individual (see Mega Conspiracy: Kim Dotcom, SOPA and Capitalism in the Feburary 2012 issue of The Spark or online) the issues swirling around him and the wider ramifications of the behaviour of the police are even more important.

The arrest of Dotcom on January the 20th of this year was as much media stunt as anything else. More than 70 police (including the Armed Offenders Squad) with helicopters swarmed Dotcoms mansion. Much was made of his fleeing into his electronically locked safe room with a loaded shotgun. It was only later on in the piece that it was revealed that unidentified plain clothes police scared him into retreating into his safe room and that there was a shotgun within a gun safe on hand (technically close to him though).

Dotcom stands accused by the US government of using the MegaUpload site to engage in the largest series of copyright infringements in history. He was denied bail soon after due to fears from the crown that he would flee to Germany (which currently has no extradition treaty with the US, as opposed to New Zealand, which does).

It was after this point that police incompetence began to be revealed on a steady basis. High Court Justice Helen Winkleman ruled that the police raid had been illegal on the basis that the search warrants used did not adequately describe the offences to which they were related. “These categories of items were defined in such a way that they would inevitably capture within them both relevant and irrelevant material. The police acted on this authorisation. The warrants could not authorise seizure of irrelevant material, and are therefore invalid.” He said.

It soon came out that this was done knowingly by the police. On top of that, Police allowed Dotcom’s hard drives to be copied and sent back to the US by FBI officials on hand, who were later revealed to be directing the police operation. Once again Winkleman ruled that providing this data to the FBI was in breach of extradition law.

Repeatedly throughout this debacle, it has been clear that the intelligence agencies have been taking a stronger lead from foreign intelligence agencies than the minister responsible, John Key.

The latest element to this scandal has been the revelations that the GCSB were approached by the police to spy on Dotcom and confirm his location and of those associated with him, who the police were interested in arrested/questioning. Unsurprisingly this is illegal; with the GCSB claiming that the police misinformed them of Dotcoms residency status (he is a permanent resident and so legally should not have been spied on by the GCSB).

This only came to light when Dotcom’s defence team identified an unnamed and un-associated person as being referenced by the prosecution as the GCSB. The role of the GCSB is meant to be the spying on foreign powers or individuals. It is the role of the SIS to spy on NZ citizens or companies.

Gordon Campbell in his analysis of the situation has said the following:

“What we saw in the 2000s under the Clark government was a covert effort by the NZ Defence Force to pursue a special relationship with the United States in its wars in Afghanistan and Iraq, regardless of the avowed independent foreign policy stance of the government of the day. That was the main thrust of the evidence collected by Nicky Hager in his book Other People’s Wars.”

The use of the GCSB in the surveillance of Dotcom is interesting in the fact that as soon as the GCSB found out that Dotcom was a permanent resident they should have handed the case over to the SIS (if it is even true that the GCSB didn’t know of Dotcom’s legal status), but that would have required the SIS to get John Key to sign a surveillance warrant. It is rather handy in this instance that what weak ‘safeguards’ existed were able to be so easily bypassed.

As well as this, the official statements on when the (illegal) surveillance began are also being called into question. Leading the life of some bizarre super-rich playboy, Dotcom had set out to be the top Modern Warfare 3 (a popular computer game series) player in the world. He had his internet connection connected directly into the international network hub situated in the Skytower, so as to gain the quickest speed possible (30mbps), at some point he noticed that this had increased to 180 mbps, with his connection being diverted within New Zealand.

Dotcom himself is an unsavoury character and the squabble over the role that his MegaUpload site allegedly plays in pirating copyright material is not the biggest issue from the perspective of most New Zealanders. The big issue is the role that this incident plays within a wider context of the systematic abuse of our rights to privacy and other civil liberties. The cases of Ahmed Zaoui, the spinning of New Zealand’s role in Iraq and Afghanistan as well as the Urewera 17 case paints a clear picture of a police and intelligence sphere which prioritises cooperation with overseas intelligence services and sees legal frameworks merely as things to bypass.