Dotcom v Attorney-General - [2014] NZHC 1505

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1928 [2014] NZHC 1505

IN THE MATTER of the Judicature Amendment Act 1972

AND

IN THE MATTER

of an application for judicial review and application for interim relief pursuant to section 8

BETWEEN

KIM DOTCOM First Plaintiff

FINN BATATO Second Plaintiff

MATHIAS ORTMANN Third Plaintiff

BRAM VAN DER KOLK Fourth Plaintiff

AND

ATTORNEY-GENERAL First Defendant

THE DISTRICT COURT AT NORTH SHORE

Second Defendant

Hearing: 19 June 2014

Appearances:

P J Davison QC, W Akel, H Steele for First Plaintiff
A F Pilditch, L F Stringer for Second Plaintiff
GJSR Foley for Third and Fourth Plaintiffs

K P McDonald QC, F Sinclair, A Boadita-Cormican for First and Third Defendants

Judgment:

2 July 2014

JUDGMENT OF WINKELMANN J

KIM DOTCOM v ATTORNEY-GENERAL [2014] NZHC 1505 [2 July 2014]

This judgment was delivered by me on 2 July 2014 at 10.15 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Simpson Grierson, Auckland
Crown Law, Wellington

Counsel: P J Davison QC, Auckland
A F Pilditch, Auckland
G J Foley, Auckland
K P McDonald QC, Wellington

[1] The plaintiffs seek directions as to the implementation of orders I have made in this proceeding. In June 2012 I issued a judgment upholding challenges by the plaintiffs to the validity of search warrants and related searches (the warrants judgment).1 The warrants had been executed by police in January 2012, at addresses associated with the first plaintiff, Mr Dotcom, and the fourth plaintiff, Mr Van Der Kolk. My findings were:

(a) That the warrants pursuant to which the items were seized were invalid;

(b)That even if the warrants were valid, the Police in executing the warrants had exceeded what they could lawfully be authorised to do. That was because they continued to hold irrelevant material along with the relevant, having made little or no effort to identify and return the irrelevant. I held that they had no authority to seize and hold irrelevant material; and

(c) The release of cloned hard drives to the Federal Bureau of Investigation (FBI) for shipping to the United States of America (USA) was contrary to a direction given by the Solicitor-General under s 49(2) of the Mutual Assistance in Criminal Matters Act 1992 (the MACMA) that the items seized were to remain in the custody and control of the Commissioner of Police. That release was
therefore in contravention of s 49(3) of the MACMA.

1 Dotcom v Attorney-General [2021] NZHC 1494, [2012] 3 NZLR 115.

[2] The background to this last finding was that the FBI had created two clones each of nine hard drives seized from the plaintiff, shipping one clone to the USA, and leaving one clone for each of the nine hard drives with Police.

[3] In May 2013 I issued a further judgment (the remedies judgment), granting relief to the plaintiffs in light of my findings set out above and reserving leave to the parties to apply for further directions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dotcom v Attorney-General

Details

AGLC: Dotcom v Attorney-General [2014] NZHC 1505
Case: [2014] NZHC 1505
Decision Date: 2 July 2014

CaseChat Overview and Summary

The plaintiffs in Dotcom v Attorney-General sought directions from the Court regarding the implementation of orders made in a previous proceeding. The plaintiffs, including Kim Dotcom, sought access to cloned hard drives that had been unlawfully shipped to the United States by the Police. The Police argued that the Federal Bureau of Investigation (FBI) should be given access to the encryption passwords to unlock the drives, while the plaintiffs opposed this, arguing that it would enable the FBI to access encrypted material that had been unlawfully obtained. The Court held that the orders did not contemplate that the Police would pass the encryption passwords to the FBI, as this would be inconsistent with the Court's directions to conduct a sorting exercise onshore and the reasons for the Mutual Assistance in Criminal Matters Act regime. The Court also held that there were good policy reasons not to allow the plaintiffs access to encrypted material prior to its inspection by the Police, but this did not require that the FBI must also have access to the passwords. The Court granted directions that the Police would provide an undertaking that the encryption codes would remain confidential and not be disclosed to any representative of the government of the United States of America.

The plaintiffs in Dotcom v Attorney-General sought directions from the Court regarding the implementation of orders made in a previous proceeding. The Court had previously found that the search warrants used by the Police to seize the plaintiffs' property were invalid, and that the Police had exceeded their lawful authority by continuing to hold irrelevant material seized along with the relevant. The Court had also found that the release of cloned hard drives to the FBI for shipping to the United States was contrary to a direction given by the Solicitor-General under the Mutual Assistance in Criminal Matters Act 1992. The plaintiffs now sought directions in connection with an aspect of the relief granted in connection with the unlawful shipping of the clones. The Court had directed that the clones created by the FBI and currently held by the Police would be provided to the plaintiffs upon receipt of encryption passwords. The parties had been unable to resolve the basis upon which that direction could be implemented, and the plaintiffs had made this application. The principal sticking point was the undertaking included in the proposed protocol by which the Police recipients of the password would undertake not to disclose the encryption code to any representative of the government of the United States. The Police argued that they should be able to give the passwords to the FBI, as they required the password for legitimate investigative purposes and needed FBI technical assistance to ensure that the material had been fully decrypted before it was released to the plaintiffs. The plaintiffs opposed this, arguing that it would enable the FBI to access encrypted material that had been unlawfully obtained.

The Court held that the orders did not contemplate that the Police would pass the encryption passwords to the FBI, as this would be inconsistent with the Court's directions to conduct a sorting exercise onshore and the reasons for the Mutual Assistance in Criminal Matters Act regime. The Court noted that the particular order now at issue was part of a group of orders and declarations, and could not sensibly be understood in isolation from the other relief, or from the findings in the warrants and remedies judgment, to which that relief responded. The Court had previously held that the sorting exercise which the Police were obliged to do was to be undertaken onshore and the FBI not provided with the categories of personal material identified. Some of the encrypted material on the clones in the FBI's custody may fall within the categories of personal material identified by the Court. It would be meaningless to direct this sorting onshore, if the FBI were also to be provided with the encryption codes. Those codes would enable them to access all of the material, effectively delivering it to them.

The Court also held that there were good policy reasons not to allow the plaintiffs access to encrypted material prior to its inspection by the Police, but this did not require that the FBI must also have access to the passwords. The Police must be permitted adequate time to check for any further encrypted material concealed within the material, and they may seek the assistance of the FBI but in New Zealand. However, this did not require that the FBI must also have access to the passwords. The Police or Police expert can utilise the password to unlock the material. It is not suggested by the Police that the FBI have unique skills in this regard.

The Court granted directions that the Police would provide an undertaking that the encryption codes would remain confidential and not be disclosed to any other party either within or outside the New Zealand Police, and in particular to any representative of the government of the United States of America; and would at no time be stored or transmitted electronically. The Court reserved leave for the parties to seek any further directions necessary to give effect to the orders above.

Orders