Police 'struggle with data laws', says expert after Dotcom spying report

KATIE KENNY, KEVIN NORQUAY AND LAURA WALTERS
Last updated 17:41 17/07/2014
Kim Dotcom
Lawrence Smith
Kim Dotcom
RUSSEL NORMAN
PETER DRURY
RUSSEL NORMAN: "The GCSB have got away with acting illegally. At the end of the day that's what this means. It's a big deal."
P Bust
MALCOLM BURGESS: Police "now consider this matter closed".

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The police decision not to prosecute the GCSB for snooping on Kim Dotcom and 88 New Zealanders did not reflect an "unconstitutional attitude", a legal expert says.

University of Auckland associate law professor Bill Hodge said the police watchdog was right to back the decision.

The Independent Police Conduct Authority (IPCA) this morning released its findings on the police investigation of the Government Communications Security Bureau's (GCSB) activities.

The IPCA found the police decision not to prosecute the GCSB justified.

Hodge said police and the GCSB were still struggling to understand the law when it came to new types of data, seizure and criminal behaviour.

IPCA chairman Sir David Carruthers said the authority found police were justified in not pressing charges for lack of criminal intent.

Police found the illegality of the spying came about due to the GCSB's incorrect interpretation of the law not through intent to break the law.

Hodge said the case was a "pretty unique" situation. The law had been largely untested when it came to listening devices and the interception of metadata. This included materials such as direct dials or the number of times someone called rather than the contents of a communication.

"I don't want to turn our legal system upside down because of this one case," Hodge said.

New Zealand was on the "frontier of the data age" and it was not surprising the authorities were struggling to apply "relatively new law on relatively new types of alleged offending".

This was not a case of police refusing to hold those in power to account, he said, adding that police had to have the option not to prosecute every piece of law breaking.

New Zealanders in top spots were often punished civilly by resigning or being fired, which was sufficient, Hodge said.

"You can't devote full resources, if they're doing this then they're probably not doing something else.

"I'd rather have them go after the burglars."

Dotcom said this afternoon he was considering taking on the GCSB in a private prosecution after the release of the report.

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"I'm seriously considering a private prosecution against GCSB spies because of illegal surveillance," Dotcom said. "My legal team is now in preparation mode." 

Green Party co-leader Russel Norman said today Dotcom and the 88 New Zealanders found to be illegally spied on by the GCSB were unlikely to receive justice under the current government. The only remaining route was a private prosecution.

Dotcom also called the solicitor-general's legal advice to police "inappropriate".

"The Solicitor-General gave Police an opinion on criminal intent which they adopted. INAPPROPRIATE. His office was representing the GCSB," Dotcom tweeted this afternoon.

Dotcom was referring to the advice from the solicitor-general to the police that to bring a prosecution the GCSB needed to intend to intercept communications and intend to break the law.

The IPCA report said the agency's role was not to assess the legal advice provided to the police by the solicitor-general. The IPCA was "solely concerned with whether there has been any misconduct or neglect of duty by the police".

Norman asked police in 2012 to investigate whether any GCSB agents had committed a criminal offence. He later complained to the IPCA alleging neglect of duty by police in relation to their investigation and the findings arising from it.

Norman said today the IPCA's backing of a police decision not to prosecute the GCSB for its snooping cleared the way for illegal spying.

"The message that's being sent is that if a citizen acts illegally they get in trouble, if the Government acts illegally they get off scot-free."

Police Assistant Commissioner Malcolm Burgess said the police "now consider this matter closed".

Laila Harre, leader of the Dotcom-founded Internet Party, said the report showed the day-to-day review and oversight processes were not up to dealing with the "serious situation" of spying that had evolved in the past few years.

Labour also called for a full independent review of New Zealand's spy agencies to restore public trust.

Labour's associate security and intelligence spokesman Grant Robertson said the IPCA decision meant there was still no accountability for unlawful activities against New Zealanders.


- Stuff

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