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Posts Tagged ‘Government Communications Security Bureau’

Dear Michael Cullen: the GCSB is not International Rescue!

18 March 2016 6 comments

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TB5

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When a spokesperson for the government tries to employ scare-tactics to persuade the public that increasing surveillance powers for various arms of the State – in this case the Government Communications Security Bureau (GCSB) – is warranted, then suspicions arise.

In the week following the release of the first review of intelligence organisations in New Zealand, Michael Cullen  offered no less than three scare-tactics, that on the face of it, should send children and the naive running into the arms of spymasters at the SIS and GCSB.

On 10 March, Kathryn Ryan interviewed Michael Cullen on Radio NZ’s ‘Nine to Noon‘ show. Cullen was  one of the reviewers of our spy agencies.  In reply to questioning why the GCSB needed increased powers, he said;

@ 10.04

“…Suppose, let’s take an example, you know that a Chinese agent is arriving on a plane at an airport, for whatever reason you also know that they’re only going to be here for a short time but you’ve no idea what it is they’re going to be up to, and you can’t find a judicial commissioner, you know you’re only half an hour out from a landing kind of thing…”

@ 10.34

“…In extreme circumstances where you can’t find the Attorney General, or the the Minister deputed [sic] by the Prime Minister [to] act on the Attorney General’s behalf, or the judicial commissioner, then the Director can issue a warrant, but that’s in the case of immediate threat to life or the fact that if it doesn’t happen quickly then the opportunity to gather that intelligence will have passed…”

Aside from a “Yellow Peril” hint to Cullen’s reference to “a Chinese agent”, one has to ask why he is suggesting that the imminent arrival of such a person would strike fear into the heart of our government and it’s agencies.

Did the announcement that we are at war with China miss the 6PM news bulletin on both TV1 and TV3?

If  such a mythical “Chinese agent” is a “threat” to our security and well-being, then a simple phone call to New Zealand Customs should be sufficient to  detain the person and return him/her home on the next available flight.  NZ Customs already has this power, as Mario Quintela learned to his misfortune last February;

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Portuguese tourist gifted free flight to NZ after immigration debacle

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Not only was Mr Quintela detained after disembarking his flight; he was held for ten hours, and promptly deported thereafter. (As the story reports, Customs then had to pay for Mr Quintela‘s flight back to New Zealand.)

So why the “imminent arrival” of a foreign agent should send the GCSB or other state agency into a tizzy is unclear. Our Customs department already ‘has our backs’ on such matters.

Cullen then painted a frightening picture where “in extreme circumstances where you can’t find the Attorney General, or the the Minister deputed  by the Prime Minister [to] act on the Attorney General’s behalf or the judicial commissioner”.

Really? In the 21st century, with mobile phones, smartphones, email, faxes, landlines – Cullen is deeply concerned “where you can’t find the Attorney General, or the the Minister deputed [sic] by the Prime Minister [to] act on the Attorney General’s behalf, or the judicial commissioner“?!

If such an unlikely scenario ever eventuated, my concern would not be for the GCSB unable to have a warrant-to-surveil signed   – but where the hell our Attorney General, or the the Minister deputed [sic] by the Prime Minister [to] act on the Attorney General’s behalf, or the judicial  commissioner” were, that they could not be easily located.

Perhaps the most disingenuous,  anxiety-laden scenario from Cullen was his implausible Lost At Sea fantasy.  On Radio NZ’s Focus on Politics, Cullen maintained that expanding the GCSB’s surveillance powers was a “safety” issue;

@ 2.30

“Let us suppose a New Zealander is in imminent danger, in terms of their life overseas. Maybe lost at sea or some other example. Under this legislation as the GCSB feels it has to interpret it, the GCSB’s capacity to trace an individual’s cellphone and to say exactly where it is, cannot be used.

We have no way of finding out where that person is, using that capacity, in order to take immediate and urgent action, in whatever way, to try to protect the safety of that New Zealander.”

I call total bollocks on Cullen’s example.

Aside from the fact that most yachties and other vessels now use modern emergency locator beacons, if a New Zealander is in “imminent danger”, a bunch of spooks sitting in Pipitea House, Thorndon, listening in on conversations and reading emails and txt-messages are hardly likely to be in a position to facilitate rescue operations to assist a person “ lost at sea “.

Checking Google, using the search parameters “spy agency locates lost person at sea” did not yield a single example of a spy agency finding anyone in such dire straits.

The GCSB is a spy agency. International Rescue, it is not.

If by some bizarre chance the GCSB did pick up an SOS call, or locator beacon, no person in their right mind would object if the information was passed on to rescue services. By definition,  SOS calls cannot be considered “private communications” since they are broadcast far and wide to anyone capable of picking up the transmissions.

Cullen is fear-mongering.

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In the report,  Intelligence and Security in a Free Society Report of the First Independent Review of Intelligence and Security in New Zealand, under a section headed “Key Issues Identified“, the authors write;

7. It quickly became apparent to us that there were a number of deficiencies in the Agencies’ current legislative frameworks. The legislation establishing the Agencies is not comprehensive, is inconsistent between the two agencies, can be difficult to interpret and has not kept pace with the changing technological environment. This has led to some significant problems.

8. First, lack of clarity in the legislation means the Agencies and their oversight bodies are at times uncertain about what the law does and does not permit, which makes it difficult to ensure compliance. Critical reviews in the past have led the Agencies, particularly the GCSB, to take a very conservative approach to interpreting their legislation. While we understand the reason for this, and it is certainly preferable to a disregard for the law, this overly cautious approach does mean that the GCSB is not as effective or as efficient as it could be. The legislation needs to set out clearly what the Agencies can do, in what circumstances and subject to what protections for individuals.

It appears that Cullen and his co-author, Dame Patsy Reddy, are repeating the very same justifications that Key and other National ministers spouted in 2013, when they implemented an expansion of GCSB’s powers to legalise Bureau surveillance of New Zealanders.

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Michael Cullen and Report co-author Patsy Reddy

Michael Cullen and Report co-author Patsy Reddy (Radio NZ)

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On  9 April 2013, our esteemed Dear Leader claimed that the GCSB – as it stood at the time – was not “fit for purpose”;

In addition, the Act governing the GCSB is not fit for purpose and probably never has been.  It was not until this review was undertaken that the extent of this inadequacy was known

[…]

The advice we have recently received from the Solicitor-General is that there are difficulties interpreting the legislation and there is a risk some longstanding practices of providing assistance to other agencies would not be found to be lawful.

[…]

It is absolutely critical the GCSB has a clear legal framework to operate within.”

Now it appears that Cullen and Reddy are parroting the same rationale for advancing the “need” to expand the Bureau’s surveillance powers.

This appears to be the stock-standard meme that will be trotted out every time the government pushes for further extensions to State surveillance powers.

Council for Civil Liberties, chairperson, Thomas Beagle, was correct when he pointed out the obvious “mission creep” of stealthily increasing State surveillance in this country;

“I think it’s part of a shift towards an overall surveillance society and I think it’s part of a wider shift towards a government which is not of the people but a government which is actually working on the people.”

Cullen and Reddy have played their part in this latest chapter of an on-going process.

What next in two, five, or ten years’ time?

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References

Parliament: Intelligence and Security in a Free Society Report of the First Independent Review of Intelligence and Security in New Zealand

Radio NZ: Nine To Noon – Spy law shake-up, heightened protection or erosion of privacy? (alt. link)

TVNZ News: Portuguese tourist gifted free flight to NZ after immigration debacle

Radio NZ: Focus on Politics – 11 March 2016  (alt. link)

Beehive: PM releases report into GCSB compliance

Radio NZ: Spy review aims to clarify powers

Additional

Radio NZ: Canada stops sharing Five Eyes data

The Guardian: Canada spy agency stops sharing intelligence with international partners

Other Blogs

Dim Post: Security and intelligence legislation: then and now

No Right Turn: As predicted

No Right Turn: The problem with the intelligence review

The Standard: New report on GCSB spying powers

Previous related blogposts

Audrey Young, Two Bains, old cars, and… cocoa?!?!

National Party president complains of covert filming – oh the rich irony!

An Open Message to the GCSB, SIS, NSA, and Uncle Tom Cobbly

Dear Leader, GCSB, and Kiwis in Wonderland

One Dunedinite’s response to the passing of the GCSB Bill

The GCSB Act – Tracy Watkins gets it right

The GCSB Act – some history

The GCSB – when plain english simply won’t do

The GCSB law – vague or crystal clear?

The Mendacities of Mr Key #1: The GCSB Bill

Campbell Live on the GCSB – latest revelations – TV3 – 20 May 2014

The real reason for the GCSB Bill

Letter to the Editor: John Campbell expose on Key and GCSB

A letter to the Dominion Post on the GCSB

Big Bro’ is Watching You!

The GCSB law – Oh FFS!!!

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No more anarchy

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This blogpost was first published on The Daily Blog on 13 March 2016.

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Letter to the Editor: When is privacy not privacy?

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old-paper-with-quill-pen-vector_34-14879.

SIS

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When we break the law, the police come calling.

When National does it, they just change the law.

That’s how it’s done in New Zealand, circa 21st Century…

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FROM: "f.macskasy"
SUBJECT: Letters to the editor
DATE: Thu, 08 May 2014 11:32:27 +1200
TO: Listener  <letters@listener.co.nz>

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The Editor
The Listner


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John Key’s government passed legislation last year which
now legalises GCSB spying on New Zealanders, albeit with a
“warrant” and with Prime Ministerial “over-sight”.
Key says we now have legal protection to protect our
privacy.

Of course, that did not stop the GCSB from breaking the old
law, and spying on eightyeight New Zealanders. That’s
despite the old law being quite specific in it’s
prohibition on domestic spying;

Section 14 of the original Government Communications
Security Bureau Act 2003 was quite specific

“Neither the Director, nor an employee of the Bureau, nor
a person acting on behalf of the Bureau may authorise or
take any action for the purpose of intercepting the
communications of a person (not being a foreign organisation
or a foreign person) who is a New Zealand citizen or a
permanent resident.”

Which made a mockery of John Key’s mis-leading assertion
on  9 April last year;

“In addition, the Act governing the GCSB is not fit for
purpose and probably never has been. It was not until this
review was undertaken that the extent of this inadequacy was
known…”

Law-breaking and lies – the hallmark of National’s
behaviour on this issue.

But the supreme irony here?

John Key has allowed the GCSB to spy on New Zealanders or to
receive data on New Zealanders gathered by overseas spy
agencies - thereby circumventing the amended law.

But health-service providers are not allowed to share
information with family members, where necessary, because of
“privacy concerns”.

Monty Python couldn’t have scripted this farce any better.

-Frank Macskasy
[name & phone number supplied]

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References

Radio NZ: Hear more of Ian Fletcher on Morning Report  (audio)

Dominion Post:   Spy boss denies mass surveillance

John Key.co.nz: PM releases report into GCSB compliance

Legislation.co.nz: Government Communications Security Bureau Act 2003


 

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SIS GCSB John Key spying police_state surveillance

Above image acknowledgment: Francis Owen/Lurch Left Memes

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The Mendacities of Mr Key #1: The GCSB Bill

23 February 2014 9 comments

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I lied  get over it!

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In an on-going series, we will look at the half-truths; mis-representations; omissions; and outright lies, told by Dear Leader John Key.

1. The GCSB Bill

Background

Last year, upon revelations that the GCSB had illegally spied on 88 New Zealand citizens, Key  legitamised that law-breaking by passing the Government Communications Security Bureau and Related Legislation Amendment Bill into law.

The official governmdent narrative was that the GCSB law was badly flawed; vague; and confusing.

Either in ignorance, or another of his pathetic lies, John Key maintained this fiction,

In addition, the Act governing the GCSB is not fit for purpose and probably never has been.  It was not until this review was undertaken that the extent of this inadequacy was known

[…]

The advice we have recently received from the Solicitor-General is that there are difficulties interpreting the legislation and there is a risk some longstanding practices of providing assistance to other agencies would not be found to be lawful.

[…]

It is absolutely critical the GCSB has a clear legal framework to operate within.”

Acknowledgement:  John Key – PM releases report into GCSB compliance

The proposition that the  2003 GCSB Act was “ not fit for purpose and probably never has been” is not supported by reality. In fact, the law was  crystal clear with it’s wording and intent. Section 14 of said Act stated with unambiguous clarity;

14Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Source: legislation.govt.nz – Government Communications Security Bureau Act 2003

Conclusions:

  1. John Key wilfully mis-led the country, and in this blogger’s opinion, lied about the effectiveness of the law.
  2. The actual purpose of the Government Communications Security Bureau and Related Legislation Amendment Bill was to legalise the GCSB’s illegal spying activities.
  3. Not only did the Amendment head off potential court action, but it legitamised ongoing spying on all New Zealanders, despite the original intentions of the Act  that this would never happen.

Charge: broken promise/deflection/half-truth/hypocrisy/outright lie/mis-information?

Verdict: outright lie.

 

 

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References

NZ Legislation: Government Communications Security Bureau and Related Legislation Amendment Bill

Newstalk ZB: Govt data casts doubt on PM’s job comments

TV3: Key accused of spreading TPPA ‘mistruths’

NZ Herald: Toby Manhire – Chameleon Key delivers a masterstroke

Fairfax media:  Demystifying the GCSB bill: Spies and lies

Previous related blogposts

The real reason for the GCSB Bill

The GCSB Act – Tracy Watkins gets it right

The GCSB Act – some history…

The GCSB – when plain english simply won’t do

The GCSB law – vague or crystal clear?

A proposed Labour-Green-Mana(-NZ First?) agenda – part tahi

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John Key is really hoping that dudes like me don't vote

Above image acknowledgment: Francis Owen

This blogpost was first published on The Daily Blog on 17 February 2014.

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The GCSB law – Oh FFS!!!

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Continued from: The GCSB law – vague or crystal clear?

On TV3 News, this remarkable piece of “journalism”,

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GCSB

“The law is so opaque it’s open to interpretation.”

Acknowledgement: TV3 News

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The media in this country are asleep at the wheel. Or drugged. Something.

Their lazy interpretation of events  (when they even bother to cover stories of national importance – see:  Poisoned Legacy: Why is the News Media and the Left so bad at defending our freedoms?) has gone beyond incompetance – and is now firmly in the land of mis-information.

A prime example of various new media was Tova O’Brien on the evening of Wednesday 22 May 2013 on TV3 News. At about 6.5-6.10pm (and later that evening), she covered the on-going story of Paul Neazor’s report into the GCSB.

O’Brien stated matter of factly,

“The GCSB’s been cleared of breaking the law, but only just. The law ‘s so opaque it’s open to interpretation.The Prime Minister won’t won’t release the report into the spying on those eightyeight New Zealanders because it’s top secret, leaving the Opposition to continue to openly interpret it’s findings.”

Rubbish.

Has she or her news team actually read the f*****g Act?!?!

They can’t have. Otherwise they would know the following parts of the law,

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Section 14 of the Government Communications Security Bureau Act 2003 states,

Restrictions imposed on interceptions

14 Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Furthermore, the Act states in at least two parts, precisely who the GCSB may collect data on;

Part 2
7. Objective of Bureau
  • (1) The objective of the Bureau is to contribute to the national security of New Zealand by providing—

    • (a) foreign intelligence that the Government of New Zealand requires to protect and advance—
      • (i) the security or defence of New Zealand; or
      • (ii) the international relations of the Government of New Zealand; or
      • (iii) New Zealand’s international well-being or economic well-being; and
    • (b) foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and
    • (c) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—
      • (i) protect and enhance the security of their communications, information systems, and computer systems; or
      • (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.

    (2) For the purposes of subsection (1)(a)(iii), the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Part 3
13. Purpose of Part
  • The purpose of this Part is,—

    • (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and
    • (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.

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The law surrounding the GCSB is most certainly not “opaque”. It fairly strait forward to anyone with a Primary School grasp of the Queen’s English.

What part of  “Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident do journos not understand?!

FFS!! It’s there in black and white!

The only people who’ve been seriously promoting the meme that the Act is somehow “vague” or “unclear” are the Prime Minister – not exactly noted for being 100% honest with the public – and his appointed minion, GCSB Director, Ian Fletcher.

I’ll point out here and now, this isn’t directed at O’Brien. She simply happens to be the most recent case of sloppy journos who have obviously not bothered to look up the relevant act – because otherwise they would be fully aware that the Government Communications Security Bureau Act 2003 is actually fairly damned clear and unequivocal. I’ll print the relevant section again – In. Big. Red. Letters.

Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident” ?!

The most dangerous aspect of this sloppy journalism is that the public will take people like O’Brien, or at TVNZ, or the Dominion Post, or NZ Herald, or any number of radio stations at face value. The public will not be bothered to look up the relevant legislation.

And why should they? Aren’t we entitled to have a degree of faith in the media to know what the heck they’re talking about?

Evidently not.

Each time I catch some lazy journo pushing the government-orchestrated meme that the Government Communications Security Bureau Act 2003 is “unclear” or “vague” – I’ll be on their sad arses pointing out their laziness and sloppy journalism.

This is serious shit, people. National intends to pass laws allowing even more invasion of our privacy; more spying; and increased State power.

If it was Labour doing this, the MSM would be baying for blood and screaming “nanny state!”. But when it comes to National and it’s right wing agenda, all we get is mis-informed “news” that is not based in any reality I’m familiar with.

Jesus, all I’m asking is that the media get their story straight.

When did that ever become something we have to ask for?

It’s simple. Do your job.

For one last time,

Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident?!

This blogpost was first published on The Daily Blog on 23 May 2013.

 

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The GCSB – when plain english simply won’t do.

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spy vs politician

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Question: Is the GCSB staffed and managed by people for whom english is a second language?

The reason I ask is that I’ve been hearing over and over again that the Act covering the Government Communications Securitry Bureau (GCSB) is somehow, “vague”.

For example Deputy Prime Minister Bill English said,

It highlights the fact that the legislation for GCSB is probably legally flawed right from the start. The law is likely to need to change.”

This “vagueness” in the law – the Government Communications Security Bureau Act 2003 – is supposedly ‘unclear’ and ‘confusing’, which resulted in the Bureau illegally spying on 88  New Zealander permanent residents and/or citizens (see:  Legality of spy operations called into question).

So how vague is the Act? Specifically Part 3, Section 14,

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Government Communications Security Bureau Act 2003 - section 3-14

Acknowledgement:  Parliamentary Counsel Office: Government Communications Security Bureau Act 2003

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Section 14 states,

Restrictions imposed on interceptions

14 Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Let’s dissect that paragraph,
Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau …”

That’s fairly clear; we start of  by identifying who is covered by this paragraph,

  •  the Director
  •  employees,
  •  or anyone acting on behalf of the Bureau

“… may authorise or take any action for the purpose of intercepting the communications of a person…”

Again, fairly clear; the people mentioned above cannot “intercept[ing] the communications of a person…”

And the “punch-line”,

“…(not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident”.

So, if you’re a “a New Zealand citizen or a permanent resident”, you cannot have your commmunications intercepted by “the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau“.

That’s not only clear, but it’s not even written in ‘legalese’!?

The GCSB believed that they were allowed to spy on behalf of Police (or OFCANZ, to be specific).

But nowhere does the Act allow the GCSB to spy on behalf of the Police. In fact, the Act states in at least two parts, precisely who the GCSB may collect data on;

Part 2
7. Objective of Bureau
  • (1) The objective of the Bureau is to contribute to the national security of New Zealand by providing—

    • (a) foreign intelligence that the Government of New Zealand requires to protect and advance—
      • (i) the security or defence of New Zealand; or
      • (ii) the international relations of the Government of New Zealand; or
      • (iii) New Zealand’s international well-being or economic well-being; and
    • (b) foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and
    • (c) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—
      • (i) protect and enhance the security of their communications, information systems, and computer systems; or
      • (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.

    (2) For the purposes of subsection (1)(a)(iii), the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Part 3
13. Purpose of Part
  • The purpose of this Part is,—

    • (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and
    • (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.

Both paragraphs emphasise over and over again two words; foreign and international.
Coupled with Paragraph 14, it seems to this blogger (and I have zero legal training, except watching old ‘Perry Mason‘ tv programmes in my youth) that the law is fairly clear in,
  1. Meaning
  2. Intent
  3. Wording

Whatever possessed the GCSB to believe that they were allowed to spy on behalf of  OFCANZ?

For the GCSB to claim that they “believed they were allowed to spy on behalf of others such as the Police or SIS” is akin to saying they were allowed to spy on NZ citizens only on every other day, except Sunday. Ridiculous.

This is not about a “vague” or “unworkable” law.

This is about a government department that had minimal oversight and attempted to get away with flouting the law.

What  “oversight’ there was consisted of  an aging, retired judge who works part-time – and an even more apparently  feeble-minded Prime Minister who has severe memory-retention problems and seems to take little interest in what the GCSB is up to.

The GCSB has been caught out in a “matesy” relationship with OFCANZ – due in part to the ‘glamourous’ work being undertaken at the behest of the United States’ FBI, regarding Kim Dotcom. The GCSB simply didn’t want to be left out of the “action”.

This was a bunch of “boys” with high tech gear; truckloads of money; and no one watching what they were getting up to.

No wonder they broke the law in their spying.

They thought they could get away with it.

Why?

Why not. Because, after all,  who watches the Watchmen?

This blogpost was first published on The Daily Blog on 22 May 2013.

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National’s disdain for the law

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Prime Minister John Key on the phone to GCSB boss - and mate - Ian Fletcher

Prime Minister John Key on the phone to GCSB boss – and mate – Ian Fletcher

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 ’Fixing’ the Law when it’s ‘broken’…

As some folk are aware, I have a somewhat “colourful” past. As a young bloke I got carried away with stupid activities; bad driving habits (I saw the speed limit as a ‘recommendation’); heavy boozing; partying; and got on the wrong side of the law. One singular act of stupidity caught up with me over three decades later.

It was only in my mid-twenties and onwards that I started to grow up and – with the help of a few folk – managed to turn my wayward craziness into more productive activities. (Curiously, at the same time I found my political views  moving from centre-right to centre-left… Correlation? Dunno.)

Something I eventually  learned was that the law was there for a reason and the Universe did not revolve around my selfish desires. The law would not change for me – I had to make that change within myself.

Imagine my surprise then, that I have now discovered that the law can be changed for those committing illegal acts,

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Law change will mean GCSB can spy on Kiwis

Acknowledgement: Newstalk ZB:  Law change will mean GCSB can spy on Kiwis

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So let’s see if I have this right…

  • The GCSB acted illegally by spying on 88 New Zealanders/permanent residents,
  • John Key accepts that they acted outside the law
  • Instead of holding the Bureau accountable, the law will be changed to accomodate their illegality – in effect rewarding them, as Green co-leader, Russell Norman said?

My oh my… So that’s how the system works for those in power? They don’t have to be held accountable – the law can be  amended to sweep their wrong-doing under the carpet!?

I don’t know what the  1,058,638 voters who voted for National think of this. Especially when one of National’s main policy platforms during the 2011 election was the usual “tough on crime”  rhetoric,

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National Party staying strong on crime

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Not so “strong on crime” after all, I guess. Not when it involves a government agency for which  Dear Leader Key himself holds direct responsibility.

I know that New Zealanders have a fetishistic respect for Authority, but isn’t this going several steps too far?

Do we really want the entire GCSB apparatus (paid from our taxes) spying on us?

Do we really want to be taking a step closer to Big Brother watching our every move?

And if National Party supporters are comfortable reading this – before you shrug your shoulders dismissively, just consider for a moment  that the same increased powers of State surveillance will  also be wielded by the next Labour-led government.  How does that grab ya?

Break the law?

No problemo.

We’ll just change it.

John Key has stated,

I think GCSB should be able to provide agencies support for NZSIS, under the right conditions and with the right oversight.

Acknowledgement: IBID

Really?!?! Like… “the right oversight” that the  Prime Minister had over the GCSB since 2008? Is that the kind of  “right oversight” that he’s referring to?

Now why is it, I wonder, that his reassurances that the  “GCSB should be able to provide agencies support for NZSIS, under the right conditions and with the right oversight” – does not fill me with much confidence?

In fact, why is it that nothing Key sez or does gives me any confidence whatsoever?

Because I’ll share this with the reader for free; if Key couldn’t provide the  ” right oversight ” for the GCSB at it is now – why should we trust it with further enhancing their powers?!?!

The reality appears that National’s plan to legitamise the Bureau’s spying on New Zealanders shows a disdain for the law that, up till now, has only been evident in despotic regimes such as Zimbabwe. This is a dangerous road for any goverment to take.

When an arm of the State breaks the law, the correct response is not to pass laws which legitamises that law-breaking.

It frightens the hell out of me that, in the year 2013AD, this is where New Zealand has arrived. And isn’t it scary when bloggers have to point this out to all and sundry?!

All the previous assurances in the last forty years, from successive governments, that the power of the State will be firmly controlled and monitored – has ultimately proved to be futile. And now the minister for revenue and hairstyling, Peter Dunne, wants to extend information sharing between the IRD and other government agencies, promising us,

Client privacy and confidentiality is paramount in this process.

Acknowledgement: Law Society – IRD and MSD information sharing to be expanded

By the way. Whoever writes these Press Releases should changed the wording,

“Protecting people’s rights to privacy and confidentiality are critical,” Ms Collins says.”

Acknowledgement: The Beehive – Tax info-sharing may help fight crime

So if John Key gets his way, and the GCSB is allowed to spy on New Zealand citizens and permanent residents, what’s next? (Because in a few year’s time, the government will want more power for XYZ reasons. Governments are never content with the powers they are given.)

What will follow next? A  “special police force” attached to a more powerful SIS/GCSB entity?

Laws to detain dissidents who might oppose corporate investors or protest at visiting ‘dignitaries’ from other countries where human rights is an arcane, alien concept?

Or even laws which threaten to impose hefty fines and/or jail terms for those who dare protest corporate power?

Like this…

 

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Addendum

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NZ First offers support for spy law changes

Acknowledgement:  Radio NZ – NZ First offers support for spy law changes (16 April 2013)

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Trust NZ First to prop up National’s anti-democratic laws. Wouldn’t it be  exquisite irony if the GCSB and SIS have both spied on Winston Peters and recorded some of his shenanigans…

Continued at: National’s disdain for democracy and dissent

This blogpost was first published on The Daily Blog on 17 April 2013.

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Previous related blogposts

The GCSB – when plain english simply won’t do.

The Fletcher Affair – a warning for Labour

References

Beehive:  Tax info-sharing may help fight crime (9 April 2013)

Radio NZ: Govt proposes IRD share info with police (9 April 2013)

Newstalk ZB:  Law change will mean GCSB can spy on Kiwis (10 April 2013)

NZ Herald: GCSB needs more oversight – Key (10 April 2013)

NZ Herald:  John Armstrong: GCSB trickery and deception revealed (11 April 2013)

NZ Herald:  PM out to turn tables on rivals over GCSB (13 April 2013)

Other Blogs

The Daily Blog: The Conspirators

The Daily Blog: The Guts and the Authority: Curbing the Powers of the GCSB

The Daily Blog: Worse Than We Thought: Rebecca Kitteridge and the New “Community” of Spooks

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A letter to the Dominion Post on the GCSB…

 
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from:     Frank Macskasy <fmacskasy@gmail.com>
to:     Dominion Post <letters@dompost.co.nz>
date:     Wed, May 22, 2013 at 12:36 PM
subject:     Letters to the editor
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The Editor
DOMINION POST
 
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The Prime Minister and his appointee, Ian Fletcher, keep insisting that the Government Communications Security Bureau Act 2003 is “unclear” and “vague”.

How much clearer does a law have to be when section 14 of the Act states,

“Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.”

And Part 3, section 13, states clearly,

“The purpose of this Part is,—            (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and             (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.”

It doesn’t get any clearer that that.

So, really, what is Key up to?

Why extend the powers of the GCSB when the law is already fairly clear on the issue?
And if Paul Neazor’s report supposedly clears the government – why will Key not release it publicly? What is he hiding?

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-Frank Macskasy

(address and phone number supplied)

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The GCSB – when plain english simply won’t do.

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spy vs politician

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Question: Is the GCSB staffed and managed by people for whom english is a second language?

The reason I ask is that I’ve been hearing over and over again that the Act covering the Government Communications Securitry Bureau (GCSB) is somehow, “vague”.

For example Deputy Prime Minister Bill English said,

It highlights the fact that the legislation for GCSB is probably legally flawed right from the start. The law is likely to need to change.”

This “vagueness” in the law – the Government Communications Security Bureau Act 2003 – is supposedly ‘unclear’ and ‘confusing’, which resulted in the Bureau illegally spying on 88  New Zealander permanent residents and/or citizens (see:  Legality of spy operations called into question).

So how vague is the Act? Specifically Part 3, Section 14,

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Government Communications Security Bureau Act 2003 - section 3-14

Acknowledgement:  Parliamentary Counsel Office: Government Communications Security Bureau Act 2003

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Section 14 states,

Restrictions imposed on interceptions

14 Interceptions not to target domestic communications
  • Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau may authorise or take any action for the purpose of intercepting the communications of a person (not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident.

Let’s dissect that paragraph,
Neither the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau …”

That’s fairly clear; we start of  by identifying who is covered by this paragraph,

  •  the Director
  •  employees,
  •  or anyone acting on behalf of the Bureau

“… may authorise or take any action for the purpose of intercepting the communications of a person…”

Again, fairly clear; the people mentioned above cannot “intercept[ing] the communications of a person…”

And the “punch-line”,

“…(not being a foreign organisation or a foreign person) who is a New Zealand citizen or a permanent resident”.

So, if you’re a “a New Zealand citizen or a permanent resident”, you cannot have your commmunications intercepted by “the Director, nor an employee of the Bureau, nor a person acting on behalf of the Bureau“.

That’s not only clear, but it’s not even written in ‘legalese’!?

The GCSB believed that they were allowed to spy on behalf of Police (or OFCANZ, to be specific).

But nowhere does the Act allow the GCSB to spy on behalf of the Police. In fact, the Act states in at least two parts, precisely who the GCSB may collect data on;

Part 2
7. Objective of Bureau
  • (1) The objective of the Bureau is to contribute to the national security of New Zealand by providing—

    • (a) foreign intelligence that the Government of New Zealand requires to protect and advance—
      • (i) the security or defence of New Zealand; or
      • (ii) the international relations of the Government of New Zealand; or
      • (iii) New Zealand’s international well-being or economic well-being; and
    • (b) foreign intelligence to meet international obligations and commitments of the Government of New Zealand; and
    • (c) advice, assistance, and protection to departments of State and other instruments of the Executive Government of New Zealand in order to—
      • (i) protect and enhance the security of their communications, information systems, and computer systems; or
      • (ii) protect their environments from electronic or other forms of technical surveillance by foreign organisations or foreign persons.

    (2) For the purposes of subsection (1)(a)(iii), the interests of New Zealand’s international well-being or economic well-being are relevant only to the extent that they are affected by the actions or intentions of foreign organisations or foreign persons.

Part 3
13. Purpose of Part
  • The purpose of this Part is,—

    • (a) subject to the restrictions imposed by this Part, to enable the Bureau to obtain foreign intelligence; and
    • (b) to authorise the interception of communications (whether under section 16 or under an interception warrant or a computer access authorisation) only if the purpose of the interception is to obtain foreign intelligence.

Both paragraphs emphasise over and over again two words; foreign and international.
Coupled with Paragraph 14, it seems to this blogger (and I have zero legal training, except watching old ‘Perry Mason‘ tv programmes in my youth) that the law is fairly clear in,
  1. Meaning
  2. Intent
  3. Wording

Whatever possessed the GCSB to believe that they were allowed to spy on behalf of  OFCANZ?

For the GCSB to claim that they “believed they were allowed to spy on behalf of others such as the Police or SIS” is akin to saying they were allowed to spy on NZ citizens only on every other day, except Sunday. Ridiculous.

This is not about a “vague” or “unworkable” law.

This is about a government department that had minimal oversight and attempted to get away with flouting the law.

What  “oversight’ there was consisted of  an aging, retired judge who works part-time – and an even more apparently  feeble-minded Prime Minister who has severe memory-retention problems and seems to take little interest in what the GCSB is up to.

The GCSB has been caught out in a “matesy” relationship with OFCANZ – due in part to the ‘glamourous’ work being undertaken at the behest of the United States’ FBI, regarding Kim Dotcom. The GCSB simply didn’t want to be left out of the “action”.

This was a bunch of “boys” with high tech gear; truckloads of money; and no one watching what they were getting up to.

No wonder they broke the law in their spying.

They thought they could get away with it.

Why?

Why not. Because, after all,  who watches the Watchmen?

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Citizen A – 20 October 2012 – Online now!

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Citizen A

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– 20 October 2012 –

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– Chris Trotter & Selwyn Manning –

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Issue 1: Is a WINZ kiosk less leaky than a GCSB staff meeting? What to make of the security lapse at the Ministry of Social Development?

Issue 2: Where does the Kim Dotcom case end?

and Issue 3: Government tells Maoridom to get lost over the sale of Mighty River Power – what now for the Maori Party and asset sales?

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Acknowledgement (republished with kind permission)

Tumeke

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Teapots and Tearooms – a tale of two tapes

22 October 2012 9 comments

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Hark back to 11 November 2011; two men met at a cafe for a chat over a cuppa tea.

Nothing unusual about that,  you might think?

Except that the men were John Banks and John Key;  leaders of two political parties;  campaigning for an upcoming election; and about 40 journalists were present to  record the event and report it for their respective media outlets.

The publicity stunt went awry when a recording device was discovered on their table, and Dear Leader was not impressed,

John Key remains intractable today about the teapot-tape fiasco, maintaining and repeating his line that he is a victim of a deliberate attempt by the Herald on Sunday to covertly record his conversation with John Banks. .

Continuing on from his defiance yesterday, the Prime Minister reiterated on Firstline his stance against “News of the World tactics” and said he went to the police because it was “a matter of principle”. 

Firstline host Rachel Smalley, who has seen part of a transcript of the conversation, told Mr Key that hacking into the phone of a family whose child has been murdered, like the News of the World did, is very different to mistakenly leaving a microphone on a table.

“No it’s not,” Mr Key replied, “it’s an illegal attempt to get information and that’s the principle”.

“I have a totally clear conscience about what I’ve done, I think it’s the Herald on Sunday and the cameraman that may not have a clear conscience and in the end, they will have to answer to the police,” he said.

“There are many times where I am in a public place but that doesn’t mean I can be taped…I don’t care about the tape, I haven’t heard the tape but my recollection of the conversation was that it was pretty bland”. ” – Source

John Key was fairly adamant; he was outraged that he had been recorded without his knowledge and point-blank refused to permit the contents of the tape to be made public.  On 30 November he made his Royal Displeasure further known when the coercive arm of State authority – the NZ Police – raided the offices of Radio New Zealand, searching for copies of the “teapot tape”.

Further raids on other media followed.

Contrast Key’s wrath with his attitude toward the alleged video-taping of  his meeting with the GCSB on 29 January, this year.  In response to allegations made by David Shearer, Key responded on 16 October,

There was no tape, to say the GCSB erased it is a very serious allegation and he should put up or shut up, he should apologise.” – Source

Indeed, Key challenged Shearer to present the tape on more than one occassion.

Does such a tape or any other form of recording exist?

We don’t know. The GCSB says it has searched and “found nothing”.

But most pointed is that a spokesperson for the Prime Minister said on 12 October,

We are checking that there is no recording that GCSB made. ” – Source

Let’s re-cap;

On 29 January, Key visits the GCSB for a briefing. He makes some sort of speech in the GCSB cafetaria.

On 11 October, Key is interviewed by TV3 where he stated point-blank that he was unaware of any recording made of his visit to GCSB HQ on 29 January. (See: Secret GCSB recording catches Key out – Labour)

On the same day, GCSB boss, Ian Fletcher, states categorically,

The department has made exhaustive enquiries of its records and its IT systems, and can find no audio-visual recording of the Prime Minister’s visit to GCSB on 29 February 2012.” – Source

On 12 October, Key’s office announces that they are “checking that there is no recording that GCSB made“.

On 16 October, Key invites  the Labour leader to present any recording,  “and he should put up or shut up“.

This seems a remarkable turnaround for our Prime Minister?!

He obviously wasn’t aware that he was being recorded – and yet, after checking with the GCSB – is agreeable to Shearer releasing any recording that might be in his possession?!

This seems in stark contrast to Key’s anger at being recorded last year, in Epson – also unknowingly –  when he not only refused to release the tape – but called in the police to enforce his diktat.

Key was obviously having none of it.

So why the sudden change of heart at being unknowingly recorded in the GCSB’s cafetaria?

What happened between 12 October and 16 October that allowed Key to comfortably challenge Shearer to “ put up or shut up“?

Fairly bloody obvious, I would think.

The GCSB found the recording before copies could be made (otherwise it would have leaked by now); deleted it; and then advised the Prime Minister “that no recording existed”.

There is simply no other way to explain Key’s inexplicably contradictory responses on being unknowingly recorded on two separate occassions, only 110 days apart.

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Sources

NZ Herald: Bugged in the Act

NZ Herald: PM blocks release of chat tape

TV3:  Key reiterates that he is ‘teapot-tape’ victim

Dominion Post: Radio NZ hands over ‘tea tape’ interview

TV3: Key to take staffer to GCSB meetings

Scoop: GCSB in the House on Wednesday

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Dear Leader, GCSB, and Kiwis in Wonderland (Part Toru)

12 October 2012 3 comments

As predicted a week ago,

The Prime Minister has not been upfront with the people of New Zealand. This blogger believes there is more to come out, and furthermore that we will see some damning revelations disclosed to the public.

See previous blogpost:  Dear Leader, GCSB, and Kiwis in Wonderland (Part Rua)

Now, a week later, it appears that further damning revelations are indeed starting to seep through the cracks, into the full glare of public attention,

John Key has contradicted himself – David Shearer

The Labour Party is claiming the Prime Minister addressed GCSB staff on February 29, and referred to the spy agency’s work on the Dotcom case.

That’s six and a half months earlier than when the Prime Minister has previously said he knew anything about the GCSB’s illegal spying on Dotcom.

Leader of the Labour Party, David Shearer says John Key has contradicted himself.

What we understand is at that John Key made a direct reference to Dotcom and GCSB’s involvement with Dotcom. That completely contradicts… that he had no recollection of being briefed.”

Mr Shearer says he is not making accusations, he is asking questions and wants to see a video taken by a staff member at the event. However he doesn’t know if the video exists and wants someone from the GCSB to come forward and give some answers.

If it exists, he says John Key should release the video to clear up what has happened once and for all.

“This cuts directly to John Key’s credibility, he keeps forgetting things.”

Source: TV3

It seems unlikely that allegations of a video recording would be falsified – it would be of little value to Labour to make such allegations knowing it could never be backed up.

And as Duncan Garner himself commented earlier today (10 Oct) – why would the GCSB conduct a seizure and search for a video on a hard-drive, if, as they claim such a video did not exist?

This issue has now cast serious doubts on the Prime Minister and the GCSB hierarchy. Something is definitely rotten here.

If that video surfaces – it will mean the resignation of John Key as Prime Minister and this government will fall.

National is Dead Party Walking.

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Dear Leader, GCSB, and Kiwis in Wonderland…

1 October 2012 12 comments

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I

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As the Dotcom-GCSB Affair drifts further into ‘The Twilight Zone‘ (or Wonderland),  we learn the latest anouncement that Secretary of Cabinet, Rebecca Kitteridge, will be seconded to the GCSB to oversee a review of the Bureau.

The NZ Herald reports,

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Full story

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The Herald lists Ms Kitteridge’s responsibilities to include:

  • Review the systems, processes and capabilities underpinning the GCSB’s collection and reporting,
  • Build capability and provide assurance to the GCSB director that the compliance framework has been reviewed, improved and is fit for purpose.
  • She will establish new, specific approval processes for activity in support of police and other law enforcement agencies.

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II

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Meanwhile, NZ First Leader, Winston Peters, managed to extract this gem from Dear Leader during Question Time in Parliament,

Government Communications Security Bureau—Briefings Since November 2008

3. Rt Hon WINSTON PETERS (Leader—NZ First) to the Prime Minister: How many times has he been formally briefed by the Government Communications Security Bureau, by year, since November 2008?

Rt Hon JOHN KEY (Prime Minister) : My diary indicates that I have been formally briefed by the Government Communications Security Bureau the following number of times, by year, since 2008: twice in 2008, 15 times in 2009, 11 times in 2010, 10 times in 2011, and 15 times in 2012.

Source: Parliamentary Hansards, 25 September 2012

Key’s response is extraordinary for two reasons,

  1. He gave a serious answer and not the flippant, juvenile wise-cracks he normally indulges in (which, we, the taxpayer, have to pay for as he wastes Parliamentary time)
  2. The answer he gave revealed that Key had met with the Government Communications Security Bureau (GCSB) fifteen times this year alone – and the subject of GCSB surveillance on Kim Dotcom – possibly one of the most colourful, controversial, and contentious people in the country – was never raised once?!?!

John Key. Met. With. The. GCSB. Fifteen. times.

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III

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It is worthy to note that Ms Kitteridge’s  three areas of responsibilities,

  • Review the systems, processes and capabilities underpinning the GCSB’s collection and reporting,
  • Build capability and provide assurance to the GCSB director that the compliance framework has been reviewed, improved and is fit for purpose.
  • She will establish new, specific approval processes for activity in support of police and other law enforcement agencies.

… and nowhere is it written that she should ask the question on all our minds: how can the Prime Minister – the one man who has oversight  over the SIS and GCSB – not have discussed Kim Dotcom with either of the Security Agencies?

There can be only two possibilities;

#1.

Key lied – and the matter of Dotcom was discussed.

#2.

The GCSB deliberately witheld this matter from the Minister in charge of the GCSB.

Either way,

Why are there no resignations/sackings?

Why is Ms Kitteridge not charged with finding out the truth of this issue?

Why is John Key refusing a full inquiry on this issue?

Why did Bill English sign off on a warrant to suppress the GCSB’s wrongdoing?

Who lied?

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Sources

Parliamentary Hansards, 25 September 2012 (25 Sept 2012)

Inspector-General’s report released by PM (27 Sept 2012)

Dotcom case: GCSB review ordered (1 Oct 2012)

Cabinet Secretary to head review of spy agency (1 Oct 2012)

Other Blogs

5AA Australia: Across The Ditch With Sean Perry & Selwyn Manning – The Illegal GCSB Spying Scandal

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Citizen A: Kim Dotcom/GCSB special with Chris Trotter & Phoebe Fletcher

29 September 2012 2 comments

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– Citizen A – Kim Dotcom/GCSB special –

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– 27 September 2012 –

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– Chris Trotter & Phoebe Fletcher –

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Issue 1: How does the GCSB miss a $500 000 firework display by the person they are supposedly spying on? How incompetent can the case against Kim Dotcom get?

Issue 2: Why do so many NZers blame the parents for child poverty?

and Issue 3: 600 job losses in a week equals 600 families without an income – when does unemployment start impacting politically?

Acknowledgement (republished with kind permission)

Tumeke

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Spy VS Politician

29 September 2012 23 comments

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You have reached the office of Planet Key. All our agents are busy undermining your rights and selling your assets. Goodbye.” – Kim Dotcom on Twitter, 24 September 2012

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1. Firstly, some relevant background;

A. Office of Financial Crime Agency New Zealand (OFCANZ)

What is OFCANZ? 
OFCANZ is the Organised and Financial Crime Agency New Zealand. It was established on 1 July 2008 to combat serious organised crime. 
 
Is OFCANZ part of New Zealand Police? 
OFCANZ is a discrete agency that is hosted within New Zealand Police. It takes a whole-of-government approach, working with information and resources from a range of agencies.
 
Is the Serious Fraud Office part of OFCANZ? 
No. The Serious Fraud Office investigates serious and complex fraud, especially commercial fraud.  OFCANZ will concentrate on fraud that relates to organised crime. The two agencies will continue to collaborate where appropriate as sometimes these two types of financial crime can overlap.
 
Who will do OFCANZ work? 
Staff for operational activities will be drawn from OFCANZ, Police and other agencies through secondments and taskforces. 
 
How will OFCANZ work be prioritised and assigned? 
OFCANZ activity is ultimately the responsibility of the Commissioner of Police; the Commissioner will seek advice on OFCANZ focus areas (priorities) from the Officials’ Committee for Domestic and External Security Co-ordination (ODESC)
Once the Commissioner tasks OFCANZ to work on the focus areas, the intelligence process will identify targets within those focus areas. Taskforces will operate against the targets, and use a variety of methods to investigate and disrupt the targets’ activities.

Source: OFCANZ

B. Officials’ Committee for Domestic and External Security Co-ordination (ODESC)

When the GCSB was established in 1977, oversight in the sense of both operational supervision and policy guidance, in addition to a general overview of the Bureau’s management was provided by a Committee of Controlling Officials (CCO) chaired by the Head of the Prime Minister’s Department. In December 1983 the existence of this Committee was published in the Directory of Official Information. In 1989 the CCO was disestablished and the responsibility for oversight and policy guidance of the Bureau was assumed by the new Officials Committee for Domestic and External Security Coordination (ODESC).

Source: GCSB – Oversight

Points A and B explain the connection between the Officials Committee for Domestic and External Security Coordination (ODESC) and the Office of Financial Crime Agency New Zealand (OFCANZ).

OFCANZ was  in charge of the Dotcom case and subsequent raid on the Coatsville Mansion.

‘Oversight and policy guidance‘ of the GCSB is the responsibility of ODESC,

“The Police Commissioner will seek advice on OFCANZ focus areas (priorities) from the Officials’ Committee for Domestic and External Security Co-ordination (ODESC).”

ODESC is chaired by the Head of the Prime Minister’s Department.

C. Key’s letter To Judge Paul Neazor

Prime Minister

17 September 2012

Hon Paul Neazor CNZM, QC
Inspector-General of Intelligence and Security

Dear Inspector-General,

KIM DOTCOM AND ORS V ATTORNEY-GENERAL – RESIDENCY STATUS ISSUE

As I have been briefed today by the Director of GCSB, and as I understand you have now been made aware, the GCSB has discovered that it acted unlawfully in intercepting the communications of certain individuals connected with the above case, apparently acting in the erroneous belief that they were foreign persons when in fact they held New Zealand residency status.

I would be grateful if you would undertake without delay an inquiry into the circumstances of this matter and provide me with a report which identifies:

The facts of the case;

An assessment ofthe circumstances including any errors by the Bureau and its officers; and

Any measures which you consider necessary in order to prevent a recurrence.

I look forward to receiving your report as soon as possible.

Yoursrs sincerely
Rt Hon John Key
Prime Minister

D. To which Judge Neazor replied with this report,  ten days later,

INSPECTOR-GENERAL OF INTELLIGENCE AND SECURITY
THE HON D.P. NEAZOR CNZM

27 September 2012

The Rt Hon John Key
Prime Minister
Parliament Building
WELLINGTON

Dear Prime Minister

KIM DOTCOM AND OTHERS v ATTORNEY-GENERAL – RESIDENCY STATUS

This report relates to your request on 17 September that I should enquire into action by the GCSB affecting Kim Dotcom and others including making an assessment of errors. The Bureau has reported to you that there appears to have been a breach of statutory restrictions applicable to the collection work of the GCSB.

Background:

Kim Dotcom is in dispute with United States authorities about the accumulation of sums of money, the gathering of which may have given rise to allegations of criminal activity in the United States which the authorities there wish to pursue. That pursuit may well involve an attempt by Court proceedings to extradite Kim Dotcom and others to the United States, involving questions of discovery of documents and arrest of persons, Kim Dotcom and others.

New Zealand Police involvement in the event:

A specialist group of New Zealand Police Officers has been involved in assisting the United States authorities and investigating a couple of related New Zealand matters. As part of the New Zealand Police assistance, communications passed between the Police group and GCSB. Those communications were related to a proposal to arrest Kim Dotcom and associated persons. lt was believed by Police Officers that these persons could present potential danger to officers and others involved if the attempted arrest was made. With that belief it was important for the Police to know what action Dotcom and associated people might plan to take and where; i.e. they sought intelligence about possible events. The documents show that information was collected about Dotcom and his associates by the Bureau (largely about their movements or possible movements at relevant times) and passed on to the Police. In my view, considered on its own, the passing on as such could have been lawful but the collection in the circumstances was not. The documents I have seen which record the events do not disclose any interest or inquiry by GCSB about the facts or events of Dotcom’s disputed activity; just where he might be and who might be with him.

Involvement of the GCSB Mechanism:

Like other countries, New Zealand has Government agencies whose task is, covertly if necessary, to collect and report on information which is relevant to security. information is obtained by various appropriate techniques which it is unnecessary to set out. The relevant New Zealand agencies are the New Zealand Security Intelligence Service and the Government Communications Security Bureau. Only the latter is involved in this event. The mandate of each agency is set out in an Act of Parliament which is designed to control the range of the agency’s enquiry and how it works, Each agency’s work is not at large; it is limited by its controlling Act.

GCSB Gathering and Retaining Information and Dealing with Crime: For present purposes GCSB has the specific functions of gathering foreign intelligence, in accordance with the foreign intelligence requirements of the Government of New Zealand:

(i) by intercepting communications under the authority of the GCSB Act 2003;

(ii) by collecting information in any other lawful manner.

Another of the Bureau’s functions is to provide advice and assistance to any public authority in New Zealand on any matter that is relevant to the functions of the public authority or other entity and to a purpose specified in the Act e.g. to pursue the GCSB’s objective of the provision of foreign intelligence that the Government in New Zealand requires, to protect the safety of any person, and in support of the prevention or detection of serious crime. The Bureau has other specified functions, but these are what is presently relevant.

The Bureau is specifically empowered to retain any intercepted communication if its content relates to the Bureaus’ objective or functions.

lt may for the purpose of preventing or detecting serious crime in New Zealand or in any other country, retain information that comes into its possession and may communicate that information to members of the New Zealand Police. Hence my view that passing information to the Police could be lawful.

Foreign Element:

This is the significant factor in the present case.

The Bureau is intended to collect foreign intelligence only. That theme runs through the whole Act. All of the provisions authorising collection of intelligence and communications are related to what is “foreign” – “foreign inte//igence” (s.7 (i) (a) and (b)), (s.8 (i) (a)) “foreign communications” (s.8) and prohibition against targeting domestic communications (ss. 13, 14, 16 and 19).

A descriptive process is used in the GCSB Act. Examples are-

“foreign communications means communications that contain, or may reasonably be expected to contain, foreign intelligence”.

“foreign intelligence means information about the capabilities, intentions, or activities of a foreign organisation or a foreign person “.

”foreign person means an individual who is neither a New Zealand Citizen nor a permanent resident…”.

“permanent resident means a person who is, or who is deemed to be, the holder of a residence class visa under the Immigration Act 2009. “

The first inquiry as to whether a person is to be regarded as “foreign” under this Act is related to citizenship or permanent residence. lf the person concerned does not have one of those statuses, he or she is foreign for the purpose of the GCSB Act and his or her communications are not protected. If the person is a citizen of New Zealand or a permanent resident his or her communications are protected. People in the permanent residence category were originally described in the GCSB Act as the holder of a residence permit but are now described by a concept called a “residence class visa”.

The Immigration material I have seen in respect of Dotcom shows that he was granted a residence visa offshore under the Immigration Act 1987, Investor Plus category, in November 2010. At that point in time he did not meet the deinition of ‘permanent residence’ under the GCSB Act as it then was.

However, before he arrived in New Zealand the new Immigration Act 2009 came into force on 29 November 2010 and deemed him to hold a residence class visa from that point in time. He met the definition of ‘permanent resident’ for the purposes of the GCSB Act accordingly.

Although Dotcom’s status is subject to monetary and residential conditions for a period of three years short of actually being deported l\/lr Dotcom retains his immigration residence status and remains a permanent resident for the purposes of the GCSB Act.

It was on my understanding not recognised that Dotcom as the holder of a resident visa under a particular category provided for by the Immigration Act was therefore a ‘permanent resident’ (and thus a protected person) under the GCSB Act.

Potential for confusion:

Dotcom is not on my understanding a New Zealand citizen – he is Finnish or German. He is however one of a category of people who is treated in New Zealand as if he ought to have protection against collection of his information. This result has come about by reference to and application of the Immigration Act. That he (and others) has protection of their communications under the GCSB Act is simply an effect of what has happened under the Immigration Act, so long as the relevant words apply to him.

As this matter went along what was discovered in the case of Dotcom and associated people was that resident status had been obtained on their behalf under the Immigration Act 1987 and carried forward under the later 2009 Act. It was understood incorrectly by the GCSB that a further step in the immigration process would have to be taken before Dotcom and associates had protection against interception of communications.

Leaving aside possible confusion arising from the effect of the permit to be in New Zealand Dotcom and party had, the application made by the Police to GCSB was a proper one: the request was made on the basis that the information sought was foreign intelligence contributing to the function of the New Zealand Police and supporting the prevention or detection of crime. The GCSB acting on it was proper.

Enquiry was made during the activity in an attempt to ensure that the Bureau acted within its legal mandate as to what it can collect. The illegality arose because of changes in the Immigration Act wording and some confusion about which category Dotcom was in thereafter.

Complete avoidance of a recurrence will only come about if the system is such that those requesting assistance from the Bureau about non citizens check with Immigration the immigration status of people who may become targets to be sure of what their immigration status in fact is (not may be) in terms of the GCSB Act definitions and tell the Bureau what they have ascertained. It is important to realise that what the GCSB may do is governed finally by the GCSB Act, not the Immigration Act. Because the law allows the covert collection of information about only some people in New Zealand, the events demonstrate that it is important to be sure at all times of the proposed target’s legal status in the country.

Summary:

– In my view the only issue of illegality arises in this matter from confusion in this instance between the case of a person transferring funds and the general category of residents .

– The GCSB is controlled by its governing Act in what it may do. That Act makes it clear that the Bureau is intended to collect foreign intelligence only, but that includes the function of assisting the Police by gathering foreign intelligence for the purpose of preventing or detecting serious crime.

– A foreign person for the purpose of the GCSB Act is someone who is neither a New Zealand citizen nor (now) the holder of a residence class visa under the Immigration Act.

– People who hold a residence class visa under the Immigration Act have protection against the collection of information under the GCSB Act even if they are not classified as a citizen.

– In this case it was recognised that Dotcom was not a New Zealand citizen. He was classed as the holder of a residence class visa in a particular category but it was not apparent to the Police or GCSB that he thereby fell into a protected category. Because he should have been regarded as in such a category, collection was not allowed under the GCSB Act and in that way illegal.

– Collection had in fact stopped before it was recognised that he did fall within a protected category..

– The information sought to be collected did not relate to the details or merits of his dispute in the US. It was about where he was or might be expected to be in New Zealand at a particular time.

Recommendation to prevent recurrence:

16. Since occasions for the Police to seek assistance from GCSB in matters of safety or security will assuredly arise again under the GCSB Act as it stands, what is needed is assurance available to GCSB that the subject of the information sought is not protected by the terms of the GCSB Act, i.e.

that the person concerned is not a New Zealand citizen, that he or she is not a permanent resident and is not the holder of a residence class visa under the Immigration Act. There will need to be alertness that:

(i) the wording of the provisions of the GCSB Act are controlling;

(ii) since the relevant wording of either Act may change it would be useful for the applicant for assistance to advise what factors as to status they rely on, and what words in the GCSB Act they rely on for their application.

Yours sincerely
D P Nealzor
Inspector-General

(Source: Scoop.co.nz)

2. Three Subsequent Questions;

A. Evidence given under oath by Detective Inspector Grant Wormald, head of the Office of Financial Crime Agency New Zealand

It has been established that,

Dotcom’s lawyer Paul Davison told the High Court at Auckland yesterday that Mr Wormald had said in evidence on August 9 there was no surveillance of Dotcom undertaken by anyone other than New Zealand police to his knowledge.

However, the GCSB were engaged by police to monitor Dotcom for at least a month before his arrest in January and attended a meeting with police and Crown Law before the raids. “

See: Dotcom’s lawyers question police statements

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During the exchange between QC Paul Davison and Detective Inspector  Wormald, in the video clip above, the latter stated,

DAVISON: was there any other surveillance being undertaken here in New Zealand, to your knowledge?

WORMALD: No there wasn’t.”

Detective Inspector  Wormald,  head of  the Office of Financial Crime Agency New Zealand (OFCANZ),  and planner and over-seer of the Coatsville mansion raid,   would have been privy to all matters relating to the Dotcom Case, and would most certainly have known the source of  ‘intelligence’ – the GCSB.

See: Raid planner continues Dotcom evidence

GCSB agents even attended a December meeting about the raid.

(See:  Dotcom saga rebounds on Key Government)

It is inconceivable that Detective Inspector  Wormald had no idea where information was coming from. (Because quite simply, if he didn’t know – wouldn’t he have asked, to ensure the information was valid?)

As outlined above, Detective Inspector  Wormald is head of OFCANZ, which is linked to ODESC, which has  oversight and policy guidance of the GCSB.

Kim Dotcom’s lawyer, Paul Davison said,

There are very grave and significant implications arising from this recent discovery. We had evidence from an officer on oath and we have some other material which makes it look to be inconsistent with that.”

No wonder Mr Davison was concerned.

Which means that Detective Inspector  Wormald perjured  himself whilst in the Witness Stand.

Which raises the first question: How much of the Dotcom case is similarly ‘tainted’, and have police officers perjured or hidden any other evidence?

B. Oversight of GCSB

The Prime Minister has stated that he was overseas at the time  GCSB requested a Ministerial Certificate from Bill English to block  information about the Bureau’s involvement in the Dotcom case (to cover up their actions from Court and media scrutiny).

The certificate was signed by Deputy PM Bill English,  acting Prime Minister, whilst John Key was overseas. The certificate was requested by the GCSB after Mr Dotcom’s lawyer requested from Crown Law all information relating to the case that was intercepted by the GCSB and provided to police.

However, the GCSB monitoring of  Dotcom took place from 16 December 2011 to 20 Jan 2012.

See: Memorandum for Directions Hearing (para 12)

Key was definitely in the country – in part –  whilst the GCSB was spying on Dotcom. (See: Prime Minister John Key’s Address in Reply Debate – 21st December, 2011)

At some point between 21 December and 27 January, Key holidayed in Hawaii. (See:  John Key Video Journal No.50)

On 27 January 2012, Key attended the annual Australia-New Zealand Leaders’ Meeting and  joint meeting of senior Cabinet Ministers. (See: PM to visit Australia with Ministers)

Second question: Was surveillance of Dotcom discussed at any meeting around that time period by the Officials Committee for Domestic and External Security Coordination (ODESC)? If not, why not? Considering that ODESC is responsible for “oversight and policy guidance of the Bureau, if the Dotcom cases and cross-organisational liaison did not merit discussion – what then,  is ODESC overseeing?

C. Reason for GCSB involvement

The last question, and perhaps one that has only briefly been touched upon: why did the  Office of Financial Crime Agency New Zealand (OFCANZ) feel the need to request assistance from the GCSB in the first place?

According to documents, the rationale given was that the GCSB monitored Kim Dotcom’s communications  for the purposes of establishing his location for the impending raid,

“The information sought to be collected did not relate to the details or merits of his dispute in the US. It was about where he was or might be expected to be in New Zealand at a particular time.”

See: Neazor Report on GCSB and Kim Dotcom

It seems incredible that NZ Police are unable to keep track of suspects they are surveilling without requesting assistance from a spy organisation such as the GCSB (or SIS?). It beggars belief that Police required surveillance assistance when,

  • Dotcom and his entourage lived in one of the biggest mansions in Auckland
  • Dotcom drove bright, flashy, very expensive cars
  • Dotcom was quite a big bloke himself and would’ve stuck out like an Afro-American at a White Supremacists tea-party
  • Dotcom made no effort to evade authorities
  • The raid was executed at 6.47am in the morning – more than likely that the occupants of the Coatsville mansion were still indoors – if not still in bed.

There appears to be no rational reason for a spy agency to have been involved – at least not for the stated purpose  of “where he was or might be expected to be in New Zealand at a particular time“.

It was pretty bloody obvious where Kim Dotcom; his wife; his employees; and probably the family pets were, on that early morning on 20 January 2012,

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If the NZ Police are unable to locate and keep track of  a businessman who makes no effort to conceal himself; where no efforts are being made to evade anyone (indeed, he probably wasn’t even aware of being under surveillance);  then that raises serious concerns at the ability of the New Zealand police force.

Third question:  Why was the GCSB involved?

None of these questions are answered – nor even raised – in Judge Neazor’s report on this matter. In fact, reading his four page report offers very little insights as to how and why this incident came about. Neazor confirms that,

Enquiry was made during the activity in an attempt to ensure that the Bureau acted within its legal mandate as to what it can collect. The illegality arose because of changes in the Immigration Act wording and some confusion about which category Dotcom was in thereafter.”

See: Neazor Report on GCSB and Kim Dotcom

So there we have it: “confusion“.

Neazor’s “report” is so poor in facts and explanations that a further wider ranging investigation is warranted. In fact, his “report” cries out for further inquiries to be made.

What the public have been given is superficial, meaningless, pap.

Key’s apology is pointless if questions remain unanswered and suspicions abound that  Neazor’s report is essentially  a “white wash”. As Key himself said,

I’ve asked the Bureau [GCSB]  about why they failed  at that point to identify  the problem. I’m not entirely sure I’ve had a completely satisfactory answer…”

See: PM apologises to Kim Dotcom

Indeed, Prime Minister.

The public is also ” not entirely sure we’ve had a completely satisfactory answer “.

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Other Blogs

The Standard: What does Key have to gain by lying?

Tumeke: Was our new Governor-General involved in authorizing illegal spying of Kim Dotcom?

Tumeke: 4 Kim Dotcom questions: How could the GCSB miss a half million dollar fireworks display?

Tumeke: Citizen A: Kim Dotcom/GCSB special with Chris Trotter & Phoebe Fletcher

Tumeke: No one believes you John Key – The GCSB knew spying on Dotcom was illegal

Gordon Campbell: On the failures of the Neazor report

Past Prime-Ministerial-I-Don’t-Knows

NZ Herald: Key admits mistake over shares (23 Sept 2008)

Fairfax Media: PM signed papers relating to BMWs (22 February 2011)

NZ Herald: Key changes tack over meeting with broadcaster (9 April 2011)

TV3: PM’s credit downgrade claim under fire (10 October 2011)

TV3: Who knew what about Kim Dotcom (2 May 2012)

Fairfax Media: Master of Keyvasive action (18 September 2012)

TV3: Who kept GCSB’s Dotcom spying secret from Key? (25 Sept 2012)

Additional

Time: WATCH: The Hollywood-Style Police Raid on Kim Dotcom’s Mansion (9 August 2012)

NZ Herald: Key on illegal spying on Dotcom (24 Sept 2012)

TV3: Who kept GCSB’s Dotcom spying secret from Key? (25 Sept 2012)

Fairfax Media:  Kim Dotcom hints at suing Govt (25 Sept 2012)

Fairfax Media:  Dotcom case makes world headlines (25 Sept 2012)

Radio NZ: Minister stonewalls over police Dotcom evidence (26 Sept 2012)

Parliamentary Hansards: Questions for Oral Answer (26 Sept 2012)

NZ Herald: Key on the back foot as Opposition leaders twist knife (27 Sept 2012)

NZ Herald: PM apologises to Dotcom over ‘basic errors‘ (27 Sept 2012)

Scoop.co.nz:  Neazor Report on GCSB and Kim Dotcom (27 Sept 2012)

NZ Herald: Greens ask police to investigate GCSB (28 Sept 2012)

TV3: No need for GCSB inquiry – Key (28 Sept 2012)

Fairfax Media: Police had queried if spying was illegal (29 Sept 2012)

Fairfax Media: Dotcom saga rebounds on Key Government (29 Sept 2012)

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