Kim Dotcom’s lawyers have accused the government’s electronic spy agency and police of deliberately withholding information crucial to their court case.
The internet mogul’s legal team say they are now prepared to go as far as summonsing the spies to court to give evidence in a top-secret, closed-door hearing if the Crown refuse to hand over the documents.
These files raise questions over whether the United States’ National Security Agency spied on Dotcom while the German millionaire was resident in New Zealand.
The Crown say they are being transparent. However Dotcom’s lawyer, Paul Davison, said in a hearing at the High Court in Auckland today that his team had not been provided with a copy of the crucial police investigation into illegal spying by the Government Communications Security Bureau – despite it being given to media.
“It gives the plaintiffs real concern for the reason that it’s not a document we have been provided with, but yet the media get it,” Davison said.
“There is anything but a transparent approach taken.”
Dotcom, the founder of Megaupload, is currently fighting an extradition charge to the United States. He has already won several victories against the Crown, including a ruling that found the GCSB had spied on his home and the following police raid was illegal.
Today’s case was part of his $6m compensation case against the Government for those breaches of law.
Davison said the new document, released to Fairfax Media yesterday, had information important to their case. However, it noted that at least three GSCB staff had refused to be interviewed over their activities. Davison said those staff had a right to silence, but that his client was entitled to a full account.
He said he was prepared to use “lawful processes” – for example summonsing the spies as witnesses – to get that information.
The Crown took exception to Davison’s allegations, with police lawyer Kristy McDonald QC saying “Operation Grey” – the police investigation into the GCSB – was not relevant.
GCSB lawyer David Boldt said they had supplied adequate information to the special advocate, Stuart Grieve, including all interviews with the GCSB.
Grieve was employed to assess the sensitive GCSB information and ensure its release to Dotcom’s team would not breach national security.
Boldt was nervous about media attending the chambers hearing, which is normally closed to the public, because of the security concerns.
He said if GCSB staff were to be interviewed as part of the compensation case, the hearing would have to be held in secret, with only the advocate, himself, the judge and the witness present. There would have to be IT restrictions and no media in the court.
Boldt also tried to get an in-court discussion with Grieve about the spy documents suppressed, but Justice Helen Winkelmann declined. She only suppressed speculation about which New Zealand-based spy resources may have been used to spy on Dotcom.
The Crown lawyers said they believed the court needed to intervene to solve the arguments around discovery. Another hearing has been set for two weeks time to resolve the issue.
The compensation hearing has been set for March. Dotcom’s extradition hearing will be in April, but may be pushed out further to give the lawyers time to “have a breather” following the compensation case.
The newly released police files have raised fresh questions about whether the United States' National Security Agency (NSA) spied on Kim Dotcom.
Police had asked GCSB for help in December 2011 as they gathered evidence for a joint police-FBI raid on Dotcom's rural Auckland home.
However, the surveillance was illegal as the German was a New Zealand resident which protected him from the GCSB's activities, that were meant to exclude New Zealand citizens or residents.
The police summary makes a passing reference to "data supplied to the GCSB" in the leadup to the raid, Operation Debut. The US is attempting to extradite Dotcom on internet piracy charges.
The file says: "Because of the origin of the data supplied to GCSB it could not be established to an evidential standard whether the data was gathered at rest or in transit."
Later in the document it again refers to data obtained by the GCSB: "the investigation could not establish whether it was gathered at rest or in transit when it was acquired. GCSB could not provide the investigation with this information as they did not have it".
Dotcom's legal team are taking the documents to a case-management hearing at the High Court in Auckland this morning.
New Zealand is a member of the Five Eyes intelligence alliance and the new documents raise questions about whether the data was supplied to GCSB by the NSA.
It is unlikely to have been obtained by the domestic Security and Intelligence Service (SIS) as this would have negated the need for help from the GCSB in the Dotcom operation.
Green Party co-leader Russel Norman believes this suggests the NSA was conducting mass surveillance within New Zealand.
"The question is whether this information was collected while [Dotcom] was in New Zealand or on one of his overseas trips," Norman said.
He has criticised police for not investigating the GCSB properly and has laid a complaint with the Independent Police Conduct Authority.
The file also shows three GCSB agents refused to be interviewed by the police and that the agency was forced the "soften" its story after a conflict with evidence supplied by a senior police officer, Detective Inspector Grant Wormald.
Mass surveillance by the US security agencies was revealed by former NSA contractor Edward Snowden, who revealed the existence of programmes such as PRISM and X Keyscore.
In August, the whistleblower released documents in which New Zealand was listed as a collection site for an NSA database of phone-call, email and internet search data. However, the New Zealand Government has consistently refused to confirm what co-operation is given to the NSA.
Prime Minister John Key has previously said he would resign if the GCSB was found to be conducting mass surveillance on New Zealanders.
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