Attorney-General v Dotcom
[2015] NZCA 309
•16 July 2015 at 10.30 am
| NOTE: THE ORDER AT [7]A[3] AND THE PROHIBITION ON PUBLICATION OF THAT ORDER AT [10]3 OF THIS COURT’S JUDGMENT OF 8 SEPTEMBER 2014 ([2014] NZCA 444) REMAIN IN FORCE. |
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA420/2013 [2015] NZCA 309 |
| BETWEEN | ATTORNEY-GENERAL |
| AND | KIM DOTCOM |
| FINN BATATO Second Respondent | |
| MATHIAS ORTMANN Third Respondent | |
| BRAM VAN DER KOLK Fourth Respondent |
| Hearing: | 9 July 2015 |
Court: | Randerson, Stevens and White JJ |
Counsel: | M H Cooke and F Sinclair for Appellant |
Judgment: | 16 July 2015 at 10.30 am |
JUDGMENT OF THE COURT
ASubject to order B and the orders noted at [14] of this judgment, the orders made in the sealed judgment of the High Court on 31 May 2013 ([2013] NZHC 1269) at 2.1 and 2.2, as subsequently modified by this Court in its judgment of 8 September 2014 ([2014] NZCA 444) at [7]A, are set aside.
BThe direction made in the judgment of the High Court dated 2 July 2014 ([2014] NZHC 1505) at [29], as subsequently modified by this Court in its judgment of 8 September 2014 ([2014] NZCA 444) at [7]A[6], is remitted to the High Court for review.
CThere is no order as to costs.
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REASONS OF THE COURT
(Given by White J)
Pursuant to leave reserved in the judgment of this Court delivered on 8 September 2014,[1] the Attorney-General has applied for orders:
(a)quashing paragraphs 2.1 and 2.2 of the High Court’s remedial orders (as they applied to the original devices seized and any clones of those devices),[2] as modified in this Court’s interim orders of 8 September 2014;[3] and
(b)releasing the New Zealand police from their confidentiality undertakings in relation to the passwords to the encrypted devices.[4]
[1]Attorney-General v Dotcom [2014] NZCA 444 at [7]B and [10].
[2]Dotcom v Attorney-General [2013] NZHC 1269 at [65].
[3]Attorney-General v Dotcom, above n 1, at [7]A.
[4]Dotcom v Attorney-General [2014] NZHC 1505 at [29] and Attorney-General v Dotcom, above n 1, at [7]A[6].
The Attorney seeks these orders following the decision of the Supreme Court upholding the decision of this Court as to the validity of the search warrants executed at the properties of Mr Dotcom and Mr van der Kolk.[5] The Attorney wishes to issue new directions to the New Zealand police under s 49 of the Mutual Assistance in Criminal Matters Act 1992 (MACMA) so that all original relevant electronic devices seized under the search warrants may be sent to the United States authorities. New s 49 directions are required because this Court upheld the High Court decision that the Attorney’s original direction did not authorise the removal of clones of the devices from New Zealand.[6]
[5]Dotcom v Attorney-General [2014] NZSC 199 aff’d Attorney-General v Dotcom [2014] NZCA 19, [2014] 2 NZLR 629.
[6]Attorney-General v Dotcom, above n 5, at [113]–[114]. There was no application for leave to appeal to the Supreme Court against this aspect of this Court’s judgment.
The High Court’s original remedial orders were necessary because the devices seized by the police contained personal information to which they were not entitled under the search warrants and because clones of some of the devices (the 2012 clones) had already been taken and sent to the United States. The original remedial orders were as follows:
2. In respect of items that have not yet been cloned:
2.1An order that none of the items seized, nor copies or clones thereof, remaining in New Zealand be permitted to leave New Zealand or be accessed in any way other than in accordance with the processes set out in paragraph 2.2 below, subject to any further order of the Court;
2.2An order providing for the following process to be undertaken at the cost of the Police:
2.2.1The review of all items seized, including the contents of digital storage devices, for the purpose of identifying irrelevant material;
2.2.2Items containing only irrelevant material are to be returned to the plaintiffs;
2.2.3In respect of items identified as mixed content devices, two different clones must be prepared – one complete clone to be provided to the plaintiffs and one “disclosable” clone, with any personal photographs or film deleted, to be provided to United States authorities after the plaintiffs have received their clone;
2.2.4In respect of items containing only relevant material, clones must be provided to the plaintiffs before a clone is provided to the United States;
3. In respect of items which have already been cloned:
3.1An order that those clones created by the FBI and currently held by the Police (the existing clones) will be provided to the plaintiffs upon receipt of encryption passwords;
3.2In respect of clones that have already been sent to the United States and the original devices that were cloned:
3.2.1An order by way of declaration that the removal of clones from New Zealand was contrary to the Solicitor-General’s direction to the Commissioner of Police dated 16 February 2012, was not authorised in accordance with s 49 of the MACMA, and was accordingly unlawful;
3.2.2An order requiring the Police to provide confirmation in writing to the plaintiffs identifying those items the clones of which have been removed from New Zealand, and confirming whether or not the existing clones are effectively duplicates of the clones removed from New Zealand;
3.2.3An order requiring the examination of the original devices that were cloned. If any of these devices are found to contain no relevant material, they are to be returned to the plaintiffs and the Police are to request the United States authorities to destroy clones of that device, and all material derived from that clone. The Police are to provide a copy of this judgment to the FBI so that they are aware of this possibility.
Pending the determination by the Supreme Court of the appeal relating to the validity of the search warrants, the High Court also gave further directions on 2 July 2014 relating to the implementation of the remedial orders, in particular the “passwords for clones” order at 3.1.[7] The directions required the police to provide written undertakings to keep the encryption codes (or passwords) provided by Mr Dotcom, Mr Ortmann and Mr van der Kolk confidential and not to disclose them to the United States authorities.
[7]Dotcom v Attorney-General, above n 4, at [29].
After the police gave the requisite undertakings in accordance with the High Court directions, Mr Ortmann and Mr van der Kolk provided their passwords.
The High Court remedial orders were subsequently modified by this Court as follows:[8]
[8]Attorney-General v Dotcom, above n 1, at [7].
AParagraph 2.2 of the orders made in the High Court is set aside and the following order is substituted in respect of any electronic devices seized from the respondents on 20 January 2012 which were not cloned in 2012:
[1]The New Zealand Police must as soon as reasonably practicable release a clone of any device which is free from encrypted material to the person from whom the device was seized.
[2]The New Zealand Police must release the clone of any device which contains encrypted material upon the receipt and verification of encryption codes. Verification includes ensuring the encryption codes work, and that they successfully lift all encryption.
[3]Paragraphs [1] and [2] of these orders do not apply if upon review by the New Zealand Police any device is found to contain material which is or may be objectionable pursuant to the Films, Videos and Publications Classification Act 1993. If such material is identified, no clone of that device may be released to any other person without the leave of this Court.
[4]If it will ensure they are released more quickly, the New Zealand Police may release clones in tranches.
[5]If any person to whom the clones are released under these orders finds that any clone is not operable or fully accessible, that person shall notify the New Zealand Police promptly and the New Zealand Police must provide whatever assistance they reasonably can to ensure the clone is operable and fully accessible.
[6]Any encryption code may only be provided to two nominated and named officers of the New Zealand Police who, prior to receipt of any encryption code, will provide a written undertaking in the following form:
I [name and rank] of the New Zealand Police will maintain the confidentiality of any and all encryption codes provided to me; will not transmit the encryption codes electronically; and will not disclose the encryption codes to any other person or any other party, and in particular to any representative of the Government of the United States of America.
After the police gave the requisite undertaking in accordance with the directions of the High Court as modified by this Court, Mr Dotcom provided his password.
At the hearing before us the parties were in agreement that:
(a)the Attorney is entitled to make new s 49 directions;
(b)there is no objection to the clones made in 2013 being sent to the United States authorities; and
(c)apart from the remedial orders relating to the passwords for the clones, there is no objection to this Court setting aside the High Court orders in 2.1 and 2.2 as subsequently modified by this Court.
We therefore propose to make orders setting aside the subsequently modified High Court orders in 2.1 and 2.2, other than the orders relating to the passwords for the clones. This will enable the Attorney to issue new s 49 directions which the respondents may then challenge, if they wish, in new judicial review proceedings in the High Court.
The issue raised by the respondents relating to the identification and return of personal material, such as photos and videos, contained in mixed content devices may be dealt with as part of any judicial review proceedings. In this context the High Court will be able to take into account the views of the Supreme Court relating to the practicability for information to be sorted or extracted in New Zealand.[9]
[9]Dotcom v Attorney-General, above n 5, at [200].
For the respondents, Mr Mansfield and Mr Foley submitted that the issue whether the New Zealand police should be released from their undertakings should be remitted to the High Court for further evidence and submissions. Mr Batato supported their submissions.
For the Attorney, Ms Cooke submitted that this Court should determine this issue as it has all the relevant material before it. She accepted, however, that the Attorney did not have power under s 49 of MACMA to direct the police to send the passwords to the United States because they were not “things” seized by the police on the execution of the search warrants. Ms Cooke said the Attorney would need to rely on s 5 of MACMA which provides that nothing in the Act limits the provision of other assistance. She acknowledged that s 5 had not been previously raised in this case.
In our view the preferable course is to remit this issue to the High Court for determination. The parties will then have the opportunity to adduce any further relevant evidence and to make submissions on the relevant issues, including the scope of s 5 of MACMA. The issue may be determined separately or in conjunction with any judicial review proceedings issued by the respondents challenging the Attorney’s new s 49 directions.
For completeness, we note that the confidentiality order made by this Court in its decision of 8 September 2014 remains in place, together with the order for non‑publication of that order.[10]
[10]Attorney-General v Dotcom, above n 1, at [7]A[3] and [10]3.
As none of the parties sought costs, they should lie where they fall.
Result
Accordingly, we make the following orders:
(a)Subject to order (b) and the orders noted at [14] of this judgment, the orders made in the sealed judgment of the High Court on 31 May 2013 ([2013] NZHC 1269) at 2.1 and 2.2, as subsequently modified by this Court in its judgment of 8 September 2014 ([2014] NZCA 444) at [7]A, are set aside.
(b)The direction made in the judgment of the High Court dated 2 July 2014 ([2014] NZHC 1505) at [29], as subsequently modified by this Court in its judgment of 8 September 2014 ([2014] NZCA 444) at [7]A[6], is remitted to the High Court for review.
(c)There is no order as to costs.
Solicitors:
Crown Law Office, Wellington for Appellant
Anderson Creagh Lai Ltd, Auckland for First Respondent
Keegan Alexander, Auckland for Third and Fourth Respondents
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