Dotcom v Attorney-General
[2014] NZHC 1505
•2 July 2014
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 PlaintiffsK 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 if required to give effect to the orders.2
[4] The plaintiffs now seek directions in connection with an aspect of the relief I granted in connection with the findings set out at (c) above, the unlawful shipping of the clones. I directed:
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.
[5] This relief was shaped in part by an exchange with counsel during the hearing. Counsel for the Police said that although there was no legal obligation on them to do so, the Police were prepared to give their existing clones of these nine hard drives to the plaintiffs on receipt of passwords which would enable investigators to look at the encrypted parts of hard drives seized by the Police. The plaintiffs in turn said they were prepared to provide the encryption passwords.
[6] Perhaps unsurprisingly, given the history of these and related proceedings, the parties have been unable to resolve the basis upon which that direction can be implemented and the plaintiffs have made this application. Although there is some difference between the positions of the first, third and fourth plaintiffs, in broad
brush, it can be stated that the plaintiffs and the defendants are now agreed upon a
2 Dotcom v Attorney-General [2013] NZHC 1269.
protocol for access, essentially in the terms set out in schedule A to this judgment.3
There is one principal sticking point the parties have asked me to resolve by direction. It is the undertaking included in the proposed protocol by which the Police recipients of the password undertake not to disclose the encryption code to any representative of the government of the United States. The Police say that they should be able to give the passwords to the FBI. They say that was the intention of the orders made by me, and the FBI require the password for legitimate investigative purposes. The Police also say they need FBI technical assistance to ensure that the material has been fully decrypted before it is released to the plaintiffs.
[7] The plaintiffs respond that if the FBI had those passwords, that would enable them to access the encrypted parts of the clones, even though they only have those clones by reason of the illegal action of the Police in shipping them offshore to the FBI. Moreover, the scheme of the direction I gave was that there would be an initial sorting prior to the FBI gaining access to the content of the hard drives now in Police control, and the provision of passwords is inconsistent with this scheme.
[8] This application is urgent so far as the plaintiffs are concerned, as they say they require access to the content of the hard drives to assist them in their preparation for the hearing of the United States’ application to extradite them to the United States to stand trial for criminal copyright infringement and related charges. Up to this point delay in implementation has been caused principally by the difficulty Mr Dotcom has had in recalling his encryption passwords. I am told by the
plaintiffs that this is not unusual as encryption software often requires lengthy, alpha-
3 The second plaintiff already has access to the clone of the hard drive of his computer seized in the search, because there was no encryption on the hard drive, and so is not concerned with these issues.
numeric passwords. In Mr Dotcom’s case, he does not have a password written down but rather depends upon access to a hint file on his computer hard drive to give him a series of prompts which will enable him to reconstruct the password on each occasion he needs to have resort to it. The parties initially struggled over the basis upon which Mr Dotcom could gain sufficient access to the hint files on his hard drives. The Police were concerned that allowing access might imperil the security of the information on the hard drives and jeopardise the investigation. That difficulty has now been resolved, at least for now, as the parties have agreed access for Mr Dotcom to the hint file.
[9] There was also initially an issue as to how long the Police were to have to access the material, once unencrypted, before being obliged to deliver clones to the plaintiffs. The Police say that two working days, as provided for in an earlier version of the protocol, is insufficient. Working with experts, they require longer to ensure that the passwords do in fact unlock all of the material that they are about to pass over to the plaintiffs. They say it would be contrary to public policy, and undermine the Police investigation were they to be obliged to hand over such material to the plaintiffs before they could check through it to ensure that it did not contain pockets of encrypted material and before they understood its nature and content. It seems that the parties are now agreed that 10 days should be provided for in the protocol. I therefore do not need to resolve that issue.
The relief granted to the plaintiffs following the remedies hearing
[10] The particular order now at issue is part of a group of orders and declarations, and cannot sensibly be understood in isolation from the other relief, or from the findings in the warrants and remedies judgment, to which that relief responds.
[11] In the remedies judgment I said that in approaching relief I accepted the Police submission that I should construct a framework for myself starting with the hypothetical compliant warrant and shape the relief around that framework. Taking that approach I began my analysis as follows:
[51] According to the law as it stood at that time, having obtained warrants with adequate specificity as to the offences and the proper limits to the authority to search and seize items, the Police should have undertaken a preliminary sorting of items at the search site. The Police could then have taken computers and other items with hard drives offsite to allow the final stage of sorting to be undertaken in an appropriate environment. That offsite exercise should have been undertaken promptly.
[52] The warrants could not authorise the permanent seizure of hard drives and digital materials against the possibility that they might contain relevant material, with no obligation to check them for relevance. They could not authorise the shipping offshore of those hard drives with no check to see if they contained relevant material. Nor could they authorise keeping the plaintiffs out of their own information, including information irrelevant to the offences.
I continued:
[58] … the appropriate remedy is to require the Police to conduct the sorting exercise they should long since have undertaken. As suggested in the warrants’ judgment they will likely need the assistance of FBI agents to undertake that exercise. If so, they should avail themselves of that assistance, but that exercise will need to be undertaken onshore, where the material remains subject to the jurisdiction of the New Zealand courts. Any storage device that is found to contain no relevant material should be returned to the plaintiffs. Storage devices with both relevant and irrelevant data, that is to say, mixed content devices, should be cloned and a clone copy provided to the plaintiffs. This cloning and the provision of clones to the plaintiffs should occur before any material is shipped to the FBI in the United States.
[12] I then considered whether in undertaking the sorting exercise the Police should be obliged to separate the irrelevant material from relevant and delete the irrelevant before sending clones offshore. I reminded myself that relief in judicial review proceedings was discretionary and said:
[59] Beyond film footage and photographs of family, the plaintiffs have not pointed to any particularly private digital material contained on the devices. A granular sifting out of all irrelevant material would no doubt be a
very substantial task. I have therefore concluded that the obligation to separate out, and delete or partition off, irrelevant material should be limited to personal photographs and film stored on the devices which is not relevant to the suspected offences of breach of copyright utilising the Megaupload platform.
I continued:
[60] I have also concluded that the Police should not be required to identify and delete or partition off material subject to privilege prior to shipping clones. There is no evidence to suggest that there are significant privilege issues attaching to the material seized, and the evidence is that the FBI have a sophisticated privilege screening system.
[61] Once the sorting and cloning process is complete, and clones provided to the plaintiffs, then clones from which personal photographs and films have been deleted may be shipped to the FBI.
[13] I then considered the clones that had been shipped offshore to the United States already, in breach of the provisions of s 49(2) of MACMA. In addressing this I took into account the position taken by the parties, which was recorded as follows:
[63] The Police say that although there is no legal obligation on them to do so, they are prepared to give the existing clones [clones of the devices] to the plaintiffs on receipt of passwords which would enable investigators to access encrypted parts. Mr Davison QC confirmed during the course of the hearing that the plaintiffs would provide those passwords.
[64] In respect of those clones which have already been shipped to the United States, the Police are to examine the original devices held in New Zealand and, if any of those devices are found to contain no relevant material, it is my expectation that the original device will be returned to the plaintiffs and that the Police will 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.
[14] At the end of the judgment I granted the following relief which included the relief the subject of this application.
[65] I therefore make orders in the following terms:
(a) An order by way of declaration that the MACMA search warrants were unlawful;
(b) In respect of items that have not yet been cloned:
(i) An 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 (b)(ii) below, subject to any further order of the Court;
(ii) An order providing for the following process to be undertaken at the cost of the Police:
1.The review of all items seized, including the contents of digital storage devices, for the purpose of identifying irrelevant material;
2.Items containing only irrelevant material are to be returned to the plaintiffs;
3.In 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;
4.In respect of items containing only relevant material, clones must be provided to the plaintiffs before a clone is provided to the United States;
(c) In respect of items which have already been cloned:
(i) An 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;
(ii) In respect of clones that have already been sent to the United States and the original devices that were cloned:
1.An 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;
2.An 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.An 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.
[15] Aspects of the warrants and remedies judgments were appealed to the Court of Appeal. At the hearing of this application, counsel were able to clarify that the Attorney-General did not appeal the order the subject of this application, order (c). Counsel were not otherwise able to assist me with the scope of the appeal, but on reading the judgment of the Court, it seems that the Attorney-General appealed only the declaration of invalidity in respect of the search warrants, the declaration that the
removal of clones was unlawful and some consequential rulings.4 My finding that
the warrants were invalid was overturned,5 and the declarations to that effect set aside.6 My finding that the removal of clones from New Zealand was not authorised and was accordingly unlawful, was confirmed.7 The order the subject of this application for directions was retained.8 The Attorney-General did not appeal my finding that the Police, in executing the warrants, had exceeded what they could
lawfully be authorised to do by continuing to hold relevant material seized along with the irrelevant. In the absence of that finding being appealed, it seems to me that it continues to bind the parties. However, the Attorney-General did challenge the
directions I gave requiring a sorting exercise, directions which were consequent
4 Attorney-General v Dotcom [2014] NZCA 19, [2014] 2 NZLR 629, at [8].
5 At [73].
6 At [116].
7 At [102], [111], [113], [114] and [116].
8 At [117].
upon my finding that the Police had exceeded what they could lawfully be authorised to do.9 It is not clear to me on what basis, in the absence of a challenge to the finding to which that relief had responded. The Court of Appeal did not set those orders aside but reserved leave to the parties to apply for further relief.
Did the orders contemplate that on receipt of the encryption passwords the
Police may pass to those passwords to the USA authorities?
Submissions
[16] The defendants propose that they may disclose the passwords to any representative of the USA. The undertakings that the plaintiffs would require, would expressly exclude this possibility.
[17] The defendants say that there is no basis for the objection to the encryption codes being passed to the USA. There was no express prohibition on passwords being shared with the FBI. They say the orders plainly contemplated it, and this much is clear from the fact that there was no provision for further clones (disclosable clones), being provided to the FBI after the Police’s sorting exercise. This means that the only way the FBI could access the encrypted material was by having access to the passwords.
[18] Mr Davison responds that when the plaintiffs offered to provide encryption passwords it was not contemplated that they would be passed to the FBI. If it had been, he asks why would the first plaintiff have protested the provision of the clones to the FBI, and sought their return? Mr Davison points out that providing the passwords to the FBI gives them the benefit of those clones which were illegally
obtained. He suggests that the FBI should not receive any assistance from the Court
9 At [118].
to indicate that this conduct is tolerated or even condoned – such would be inconsistent with the maintenance of the rule of law.
Analysis
[19] In the terms of the orders made, it is clear that what was contemplated was the provision of the passwords to the Police. The plain reading of the order is consistent with that. It was the clones held by the Police which were to be provided to the plaintiff once the codes were received. I also consider this approach consistent with the tenor of the remedies judgment. As I said in paragraph [58] of that judgment, 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 I identified. Some of the encrypted material on the clones in the FBI’s custody may fall within the categories of personal material identified by me. It would be meaningless to direct this sorting on shore, 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.
[20] This proposed limitation upon access to the encryption passwords is consistent with the reasons for the MACMA regime. I note in particular the observations of the Court of Appeal in Dotcom, as to the reasons why the Commissioner of Police should be restrained from permitting clones of computer data to be taken out of the jurisdiction without the authority of the Solicitor-General:
[101] There are in our view a number of interrelated reasons why, in the context of the MACMA, the Commissioner of Police should be restrained from permitting clones of computer data to be taken out of the jurisdiction without the authority of the Attorney-General. The reasons are:
(a) Once clones are taken out of the jurisdiction, New Zealand loses control over them. Neither the executive government nor the courts here have any power to require the foreign country to return them. The responsibility of the Attorney- General to decide how the clones are to be dealt with is pre- empted. In particular, the Attorney-General is deprived of the opportunity of considering whether the data should be examined further in New Zealand for the purpose of establishing a register of all the data seized, removing irrelevant material and providing the person whose property has been seized with an opportunity to access it.
(b) Any opportunity for the person from whom the property was seized to raise any concerns with the Attorney-General or to challenge in New Zealand in accordance with s 21 of NZBORA the validity of a search and seizure under the MACMA and a decision by the Attorney-General permitting clones to be taken from this country is lost.
(c) The choice of the Attorney-General, or the Solicitor-General, as the person with the responsibility for giving the necessary directions under s 49, reflects their constitutional role as independent law officers of the Crown with special responsibility to act in the public interest and to exercise independent judgment impartially.
[21] I also do not attach weight to the Police’s argument that I must have contemplated the FBI would get the codes, since I did not direct the further cloning of encrypted or unlocked material for provision to the FBI. I expressly did not cover all possible permutations in the orders I made, but reserved leave to the Police to apply for further directions. This reflected the complexity of the situation the orders were designed to address. It is possible that the encrypted material is entirely irrelevant to the investigation and that it falls within the category of information which should not be provided to the FBI. If it is relevant to the investigation, a copy of it can be provided to the FBI. I do not see any prejudice to the FBI in this.
[22] During the course of argument counsel for the Police argued that they should be able to involve FBI investigators in checking the encrypted material once it is
unlocked. Counsel for the Police referred me to the decision R v Beauchamp.10 In that case it was observed that it would bring the administration of justice into disrepute in the eyes of reasonably informed members of the public, if the Court ordered the Crown to release to the defendants unknown information (unknown in the sense that it remained encrypted), which had been seized under search warrants when there was a reasonable possibility that the information released could be used to commit further criminal acts and to breach the privacy interests of other individuals.
[23] The Police have filed evidence to support their argument that there are good policy reasons not to allow the plaintiffs access to encrypted material prior to its examination by the Police. They have filed affidavits from Detective Superintendent Van Beynen, Deputy Director of the Organised Financial Crime Agency of New Zealand (OFCANZ), and Mr Rodney McKemmish, an expert engaged by the Police. In his affidavit, Mr McKemmish explains why it is necessary to check encrypted material when it is accessed through the use of the password. His essential point is that there is a risk that there may be further encrypted material concealed within that material, and great care needs to be taken to check for this.
[24] Detective Superintendant Van Beynen says that in accordance with the orders made in my earlier judgment the Police have undertaken an extensive sorting exercise. That exercise has been conducted with the assistance of the FBI in New Zealand to identify devices which contain no material relevant to the FBI investigation. This was not able to be a complete review because some of the
devices are encrypted. However as a result of that review of 214 devices, 99 devices
10 R v Beauchamp [2008] 77 WCB (2d) 177(ONSC).
have been returned to the plaintiffs on the basis that they are entirely irrelevant to the investigation.
[25] He also explains that it would be inconsistent with good investigative practice to agree to any process that permitted the plaintiffs to access encrypted material prior to its review by the Police. He says that this creates the potential for interference with evidence, including relevant evidence which had been seized by the Police, but not yet accessed because of encryption. He also says that the Police would wish to be able to seek further directions from the Court if, following removal of encryption, any material is found on the clones that they believe there are good reasons not to release to the first plaintiff.
[26] There clearly are good policy reasons not to allow the plaintiffs access to encrypted material prior to its inspection by the Police. The Police must be permitted adequate time to check for this. As I have previously indicated in undertaking the checking of seized material, including the encrypted material once it is unlocked, they may seek the assistance of the FBI but in New Zealand. However this does 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.
[27] Some other minor issues were traversed during the course of argument. The first plaintiff proposed that if the services of an expert are required, the name and qualifications of the expert should be provided to the first plaintiff for prior approval. The defendants say that that proposal would introduce further unnecessary delays into the review process. It is unreasonable for the plaintiffs to insist on the one hand
that a review of the devices be carried out within 10 working days, whilst at the same time refusing to allow the first defendant to utilise all necessary resources to carry out that review in a timely and efficient manner. I was not asked to give directions on this point but simply observe that it is difficult to see why covering up this information regarding an expert will cause delay.
[28] Finally, I record that during the hearing Mr Davison QC argued that I could safely infer that the FBI already have access to the encryption of passwords, and that the opposition to this application is simply a delaying tactic designed to further prejudice the plaintiffs’ preparation of their opposition to the extradition case. I do not have evidence before me that would enable me to draw that inference. Counsel for the Police says they do not have instructions as to whether the FBI has the passwords. The matter cannot be taken any further than this, other than to repeat my observation to counsel that it would be disappointing if the FBI did have the passwords already, given the amount of Court time and resource this argument over their right to have access to those passwords has consumed.
Result
[29] The plaintiffs are entitled to a direction in accordance with 1(c) of the
Application for Directions dated 11 June 2014 as follows:
(a) The New Zealand Police will provide an undertaking in writing (the undertaking) that once provided by Mr Dotcom, Mr Ortmann and Mr Van Der Kolk, the encryption codes:
(i) Are to remain confidential to nominated officers of the
New Zealand Police;
(ii)Will 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
(iii) Will at no time be stored or transmitted electronically.
[30] I reserve leave for the parties to seek any further directions necessary to give effect to the orders above.
Winkelmann J
SCHEDULE A
[1] In these directions, the “first plaintiff’s clones” means the following items:
Item #
1
Exhibit #
A88
Description
Lacie Flash media drive
2
A89
Sony Laptop computer
3
A89
Flash media thumb drive A
4
A89
Flash media thumb drive B
5
A90
iPhone
6
A91
External hard disks A
7
A91
External hard disk B
8
A145
G Technology by Hitachi external hard drive
9
A145
Silver Lacie external hard drive
[2] By close of business on the date following the date on which these directions are made the first defendant will provide a PDF copy of a .txt file entitled “stuff.txt” located on the desktop of the first plaintiff’s laptop.
[3] No later than one working day after provision of the .txt file referred to at paragraph [2], the first plaintiff will advise Crown Law in writing whether the “stuff.txt” file has successfully prompted his recall of the encryption code.
[4] No later than one working day after receipt of written confirmation that the first plaintiff has recalled the encryption code, the two nominated and named officers of the New Zealand Police will provide a written undertaking in the following form:
I [name and rank] of the New Zealand Police will maintain the confidentiality of the encryption code provided by the first plaintiff; will not transmit the encryption code electronically; and will not disclose the encryption code to any other person or any other party,
and in particular to any representative of the Government of the
United States of America.
[5] No later than one working day after receipt of written confirmation that the plaintiff has not recalled the encryption code, the New Zealand Police will provide the first plaintiff with a list of all .txt files located on the desktop of the first plaintiff’s laptop.
[6] No later than one working day after receipt of the list of .txt files referred to at paragraph [5], the first plaintiff will advise Crown Law in writing of the names of the relevant .txt files from the list.
[7] No later than one working day after receipt of the first plaintiff’s advice under paragraph [6], New Zealand Police will provide the first plaintiff with a PDF copy of the nominated .txt file(s).
[8] No later than one working day after provision of the .txt file referred to at paragraph [7], the first plaintiff will advise Crown Law in writing whether the .txt file(s) referred to at paragraph [7] have/has successfully prompted his recall of the encryption code.
[9] No later than one working day after receipt of written confirmation that the first plaintiff has successfully recalled the encryption code on the files provided under paragraph [7], the two nominated and named officers of the New Zealand Police will provide a written undertaking in the form set out at paragraph [4].
[10] Following receipt of the written undertaking in the form set out at paragraph [4], the first plaintiff will, within one working day, deliver in writing to one or the other of the nominated officers the encryption code.
[11] Following provision of the encryption code, the New Zealand Police will inspect the encrypted material to ascertain if there is any additional encrypted content or whether there may be a hidden encrypted volume. The New Zealand
Police will use their best endeavours to complete this task within ten working days of production of the valid encryption key.
[12] If within ten working days of production of a valid encryption code the New Zealand Police identify additional encrypted content they are to advise the first plaintiff immediately of the nature of this content.
[13] Following notification pursuant to paragraph [12] above the first plaintiff will use his best endeavours to facilitate access by the New Zealand Police to any additional encrypted content.
[14] If the first plaintiff is not able, within one working day, to assist, the additional encrypted content is to, within a further working day, be separated from any clone to be provided to the first plaintiff until such time as New Zealand Police have gained access to that content and satisfied themselves that there is no legal impediment to its return.
[15] Following separation of the additional encrypted content New Zealand Police will promptly, and in any event within two working days, release the modified clones to the first plaintiff, prior to releasing the content of the encrypted folders to the Government of the United States (it is expected that if any of the clones, or the folder, are found to contain personal photographs or film, these will be removed prior to provision to the United States (refer paragraph 66 of Her Honour Justice Winkelmann’s judgment of 31 May 2013) and the details of these files provided to the first plaintiff).
[16] If New Zealand Police form the view that there is any legal impediment to the release of all or part of the encrypted material to the first plaintiff, the first defendant will apply within one working day to the Court for further directions as to the return of the first plaintiff’s clones.
[17] If satisfied that no further encryption exists and that there is no impediment to the release of all or part of the encrypted material to the first plaintiff, New Zealand Police will promptly, and in any event within two working days of being so satisfied,
release the first plaintiff’s clones to him, prior to releasing the content of the encrypted folders to the Government of the United States (it is expected that if any of the clones, or the folder, are found to contain personal photographs or film, these will be removed prior to provision to the United States and the details of these files provided to the first plaintiff).
5
3
0