Technology columnist for the NZ Herald

Chris Barton: Chilling privacy call from our Supreme Court

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Pictured is the Kim Dotcom Mansion in Coatesville Auckland after a raid by the NZ police. Charges were laid by American authorities in relation to copyright laws. 19 January 2012 Herald on Sunday phot
Pictured is the Kim Dotcom Mansion in Coatesville Auckland after a raid by the NZ police. Charges were laid by American authorities in relation to copyright laws. 19 January 2012 Herald on Sunday phot

Our Supreme Court has handed down a chilling ruling about the state's right to invade individual privacy - particularly when it's contained, as it is so often these days, on computers or mobile phones.

It was a ruling that undermines the fundamental tenet that every person's home (or computer or mobile phone) is their castle and that they are protected by law against any illegal intrusion onto their property or their person. It's a ruling that rides roughshod over our right to be left alone, our right to privacy - a key democratic freedom enshrined in common law, here in our Bill of Rights and in the Unites States Constitution's Fourth Amendment.

The principle was established in England in 1765 in the case of Entick v Carrington after the King's chief messenger, Nathan Carrington, and others broke into the home of the Grub-street writer, John Entick, ransacking his place and taking away 100 charts and 100 pamphlets and causing 2000 pounds of damage.

Chief Justice of the Common Pleas, Lord Camden, quite rightly said that's not on: "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him."

http://en.wikipedia.org/wiki/Entick_v_Carrington

The case was at the heart of our Supreme Court ruling which found, four to one, that the authority to ransack Kim Dotcom's Coatesville home on 20 January 2012 was perfectly legal. It was a ruling that excused shoddy police work and shoddy court work - a ruling that said warrants sanctioned by the court can be scant and meaningless and they are still OK. It established everyone's home is not their castle, even if your home looks more like a castle than others.

The principle at stake here is that a search warrant is a document issued by a court making that which is illegal legal. As Chief Justice Dame Sian Elias, the dissenting voice in the Supreme Court judgement, put it: "Search warrants are judicial authority to take action that would otherwise be in breach of the law. It is critical that they are clear as to what is authorised and are tied to the offences properly identified which provide the justification for such action."

In other words that they can't be general in nature and worded to allow police to freely rummage about and seize whatever they like. Yet that's exactly what happened in the Coatesville raid when police took away a staggering 150 terabytes of data, accessed through more than 135 computers and electronic devices.

They even took away the system that opened and closed the mansion's doors. "It is now acknowledged that a substantial amount of this data, perhaps as much as 40 per cent, was irrelevant to the offences charged. Some of it was personal and private," says Elias in her judgement.

The deeply concerning issue here is that while elsewhere in the world Supreme Courts are recognising computers and mobile phones are containers of individual lives and souls, our Supreme Court seems oblivious to the fact. It found that the warrant allowing holus-bolus searching of Dotcom's vast collection of computers and other devices with no provision for sorting out what was irrelevant or private was perfectly OK.

The court saw no miscarriage of justice despite Dotcom being unable to get access his seized information for more than two years. Not to mention that if Dotcom's legal team hadn't initiated a judicial review, all of this material would have been whisked away to the United States never to be seen again.

In Dotcom's case the law that empowered or excused some 70 armed police, including members of the Special Tactics Group, AOS, plus police dogs and their handlers, deployed in two helicopters and several police vans, to descended on the Dotcom Mansion, bruise his grass and cause havoc, was kicked into gear by a letter on 17 January 2012.

It was written by deputy solicitor general Cameron Mander and authorised Detective Sergeant Nigel McMorran of the Organised and Financial Crime Agency New Zealand to apply for a search warrant under the Mutual Assistance in Criminal Matters Act. It was a detailed letter outlining a request for assistance from the United States related to an investigation into offences of copyright infringement and money laundering. It also set out the specific conspiracy offences - of racketeering, money laundering and copyright infringement - Dotcom and others are alleged to have committed under the law of the United States.

McMorran's affidavit to the court applying for the search warrant included Mander's letter and was even more detailed, describing all sorts of specifics about people, websites, bank accounts and so on. Oddly, Mander's letter mentioned something called "the Mega Conspiracy" without explaining what it was. We now know of course this was the term used in the United States Grand Jury indictment to describe the group of individuals involved in the alleged offences. McMorran's affidavit had meticulously removed all mention of the pejorative term, referring instead to the more neutral "Mega Media Group".


Despite knowledge of all this detail and background information of the FBI investigation, when the search warrant was issued it was unbelievably devoid of detail and clear explanation. In terms of the alleged offences it said "an offence of Breach of Copy Right (sic) and Money Laundering." Bizarrely there is no mention of the United States or racketeering and the attached appendix listing what may be seized includes: "all records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including, but not limited to, Megaupload, Megavideo, and Megastuff Limited."

It was this sort of nonsense that caused Chief High Court Judge Justice Helen Winkelmann in June 2012 to declare the warrants were general warrants which authorised seizure of irrelevant material, and were therefore invalid. She noted also "without definition of the 'Mega Conspiracy' it is hard to imagine what falls within this category."

But when the case got to the Appeal Court in February 2014, her decision was overturned - the judges ruling the warrants weren't that bad, that the mistakes were mistakes of form, not substance and as such could be excused - especially if read in conjunction with the arrest warrants which were at least properly worded with the correct charges.

In the Supreme Court four of the judges take the same view. Elias was alone in saying a warrant should be right when it's issued and it was wrong to treat a fundamentally flawed warrant as valid on the basis of what happened after the event. This exchange between Paul Davison QC representing Dotcom and one of the Supreme Court judges Susan Glazebrook, gives a sense of the legal contortions necessary to arrive at the opposite point of view.

GLAZEBROOK J: Well in the warrant itself it does say, "Breach of copyright and money laundering," doesn't it? ...So, so it's clear what the crimes are isn't it, but just not the specifics of how they're operating or dates?

MR DAVISON QC: Well Your Honour there isn't [an] offence in breach of copyright with respect.

GLAZEBROOK J: Well no but there is an offence of criminal copyright infringement isn't there, apparently, according to the arrest warrant - there's conspiracy to commit money laundering and conspiracy to commit copyright infringement. Well breach and infringement do mean the same thing don't they?

MR DAVISON QC: I would say with respect, when one's talking about breach of copyright one is immediately looking at a much more likely scenario of civil liability for breaching a copyright than criminal...

GLAZEBROOK J: Well, and you certainly wouldn't be looking at a criminal offence in New Zealand so the fact it doesn't mention the United States might actually be a substantive defect.

See the transcript here.

A substantive defect - indeed. The mistakes and omissions on this warrant were so numerous and so serious it beggars belief that the judges could characterise them as no more than "want of form", mere slips of the pen. Especially when you consider all the background material available to both the police and the judge who issued the warrant - material that named 22 individuals, 30 companies, 18 mega websites, 10 linking sites, seven third parties, 32 number plates, 15 bank accounts and seven specific instances of copyright infringement. Davison recounted to the five judges the appalling scorecard. "So of the 22 individuals named in the material, none appear in the search warrant. And of the 30 companies, three - Megastuff, Megaupload, Megavideo but only those three. Of the 18 websites, two. Of the linking sites, none. Of the third parties, none. Of the number plates, none. Of the bank accounts, none. Of the specific instances of copyright infringement, none."

Ever since he arrived in New Zealand Dotcom has made a laughing stock of almost everyone who has had contact with him. It began with the immigration officials who gave him residency knowing he was the subject of an FBI investigation; then the GCSB who illegally spied on him, apparently unaware he was a New Zealand resident; then the police who raided him with guns and unprecedented force, apparently because they were convinced he had a doomsday device that would wipe all his data; then the PM who had to apologise for the spying bungle; then John Banks who came down river on a cabbage boat unaware who gave him what political donations; then Laila Harre and Hone Harawira who thought getting into bed with Dotcom to make a political party was a match made in heaven.

To that long list we can now add the Supreme Court for its Cirque du Soleil-like contortions to make an invalid warrant valid.

Given all this ongoing grief shouldn't somebody be asking: Who will rid me of this turbulent German? Dotcom has already expressed a willingness to go to the United States (on bail and with access to funds to mount a legal defence) to face the music. So why doesn't John Key talk to his golfing buddy Barack Obama and make it so? Surely it's time for the Dotcomedy to wreak havoc on American shores.

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Technology columnist for the NZ Herald

Chris Barton is a freelance writer with 28 years experience in newspapers and magazines. He's been writing about technology since 1986, was the founding editor of New Zealand PC World and has won numerous media awards, including, in 2009, journalism's top prize, the Wolfson Press Fellowship to Cambridge. He has a Master of Architecture, teaches part time at the Auckland School of Architecture and is an architecture critic, winning, in 2014, the Canon Media Awards Reviewer of the Year.

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