NEW ZEALAND – New Zealand’s Organised and Financial Crime Agency New Zealand (OFCANZ) seems to have forgotten or ignored Kim Dotcom’s Permanent Resident status when it asked local spooks to tap his phones, according to a document posted online detailing arguments in the case.
The document (PDF) uses the same format as other New Zealand court documents The Register has perused, but we cannot guarantee its authenticity.
But its content does seem consistent with the statement made last Monday by New Zealand Prime Minister John Key to the effect that the GCSB acted unlawfully in its efforts to find and arrest Megaupload founder Kim Dotcom.
The document explains the reason for the whole mess may boil down to fact that when OFCANZ asked the New Zealand Government Communications Security Bureau (GCSB) to investigate Kim Dotcom, it said it was fine to do so because Dotcom is not a New Zealand citizen or permanent resident.
The GCSB is allowed to intercept foreigners communications, but as Section 14 of the Act governing the agency points out:
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.
Dotcom falls into the latter category, but the GCSB seems not to have checked OFCANZ’s insistence that he was a foreigner.
The document says that if the certificate used to initiate interception of Dotcom’s communications needs to be set aside, “judicial direction” on what to do next will be required.