The Dim-Post

February 4, 2014

Aged off?

Filed under: intelligence,Politics — danylmc @ 4:18 pm

Via David Fisher at the Herald:

The spy agency which illegally monitored Kim Dotcom’s communications has admitted deleting information needed in the upcoming $6 million damages hearing, according to the tycoon.

Dotcom last night tweeted the claim, saying: “The GCSB spy agency seems to have deleted evidence relevant to my case against the GCSB for illegally spying on NZ residents.”

He quoted Crown lawyers as saying “some communications have automatically aged off. We propose to include … those communications which are still recoverable”.

Dotcom claimed lawyers acting for the GCSB told him the material had “aged off” the system, suggesting it had automatically deleted.

Apparently the government are citing section 23 of the GCSB Act:

Every person who intercepts any communication under section 16 or under an interception warrant or a access authorisation must, as soon as practicable after the interception, destroy any copy that he or she may make of the communication, or any part of the communication, and any record, whether in writing or otherwise, of the information obtained by that interception, except to the extent permitted by section 25 or to the extent that the information recorded in the copy or record relates directly or indirectly to—

  • (a) the protection or advancement of 1 or more of the interests specified in section 7; or
  • (b) any of the Bureau’s functions under section 8A or 8B.

So the most benign explanation here is that some of the intercepts of Kim Dotcom’s communications were irrelevant – personal conversations or whatever – and that GCSB have some document management system that automatically deletes anything that doesn’t get tagged as relevant after a certain date. And Dotcom’s lawyers asked for all of the intercepts they gathered on him and they had to admit ‘Well, we gathered all of these personal conversations but they were aged off and got deleted.’

But its also possible – given their previous form – that the GCSB are just running around illegally deleting and shredding everything that might make them look bad in court and citing this section of the legislation to cover themselves now that they’ve been caught out. We don’t know, we probably never will and that’s kind of the problem with the GCSB.

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54 Comments »

  1. I suspect given that the GCSBs sloppy records management oversight probably outweighs their criminal duplicity, the former is more likely.

    Comment by Gregor W — February 4, 2014 @ 8:21 pm

  2. Ah, the Anglosphere deep state strikes again.

    Comment by Sanctuary — February 4, 2014 @ 8:54 pm

  3. Thank god for Kim Dotcom, eh Sanc?

    Comment by kalvarnsen — February 4, 2014 @ 9:11 pm

  4. I don’t trust those buggers at all, they remind me of the NZ Police when they are caught fiddling around and being dodgy. it is just too cute, oops our bad it aged off. Really weak.

    The GCSB and Key have no idea what type of grenade Edward Snowdon is going to toss into the NZ intelligence pond, all the other 5 eyes have had ‘leaks’ about spying/intelligence gather activities except us, so GCSB/Key are shitting themselves and trying to hide the bodies.

    Comment by statlerandwaldorffromthebalcony — February 4, 2014 @ 10:09 pm

  5. @ kalvarnsen – I think I have quite clear about Dotcom – if the guy can organise a party that can get the surveillance laws repealed, which would presumably mean making the threshold and defeating National, then my enemies enemy is my friend.

    Comment by Sanctuary — February 5, 2014 @ 7:04 am

  6. @Sanctuary: Yeah, and if that means giving neoliberalism a pass for three years, you’re fine with that. I remember.

    So, until 2017, you’re on the same team as the neoliberals. Have fun with that.

    Comment by kalvarnsen — February 5, 2014 @ 7:58 am

  7. Danyl, your call for nominations for the Shelley Bridgeman Award (for geopolitical analysis in a travel column) has been answered.

    http://publicaddress.net/up-front/egypt-its-complicated/

    Comment by Tinakori — February 5, 2014 @ 8:52 am

  8. Danyl, your call for nominations for the Shelley Bridgeman Award (for geopolitical analysis in a travel column) has been answered.

    I find Emma Hart’s ‘voice’ that she writes in so irritating her work is unreadable, and I’m not quite sure why.

    Comment by danylmc — February 5, 2014 @ 8:58 am

  9. “…@Sanctuary: Yeah, and if that means giving neoliberalism a pass for three years, you’re fine with that. I remember.

    So, until 2017, you’re on the same team as the neoliberals. Have fun with that…”

    Well, my timeline would go like this:

    Election October 25th 2014, Dotcom party gets 5%, makes coalition with Greens and Labour.

    March 2nd 2015: GCSB abolished, surveillance laws repealed.

    March 3rd 2015: It’s job done, I start hating on the Dotcom party.

    By my calculation, that is only 13 months. A long enough perdition.

    Comment by Sanctuary — February 5, 2014 @ 9:32 am

  10. P.S. I find Emma Hart irritating as well.

    Comment by Sanctuary — February 5, 2014 @ 9:43 am

  11. “I find Emma Hart’s ‘voice’ that she writes in so irritating her work is unreadable, and I’m not quite sure why.”

    I haven’t read anything else by her but who the fuck doesn’t know that modern Egypt is “complicated”?

    Comment by Donna — February 5, 2014 @ 10:17 am

  12. “I haven’t read anything else by her but who the fuck doesn’t know that modern Egypt is “complicated”?”

    NZ herald, Dom post, TV3, TVone woudl be my starter list. theyre all in the view army bad, morsi/democracy good. which is rather her point

    Comment by Ian — February 5, 2014 @ 11:19 am

  13. NZ herald, Dom post, TV3, TVone woudl be my starter list. theyre all in the view army bad, morsi/democracy good. which is rather her point

    We’re getting off the point of the thread here a tad, but I haven’t seen any of those news outlets running an editorial line on Egypt endorsing Morsi or even endorsing anyone. I mean, I might be wrong, but all of their coverage that I’ve seen is based on Reuters, or BBC et al and is generally sourced by some of the best reporters in the world. I think they convey the complexity of the situation just fine. But it’s Emma’s style to affect to be blowing up all the bullshit with her truth bombs and I guess that’s why her readers like her, even if there isn’t always any bullshit to be blown up and her version of the truth is gleaned through a few days visiting a country where she doesn’t speak the language and talking to tour guides.

    Comment by danylmc — February 5, 2014 @ 11:40 am

  14. I would have thought that the GCSB would be adhering strictly to the Public Records Act 2005. I’d be very disappointed if documents were being shredded or could not be accounted for.

    http://archives.govt.nz/advice/continuum-resource-kit/continuum-publications-html/g8-guide-public-records-act

    Comment by Ross — February 5, 2014 @ 1:20 pm

  15. From the above link:

    “Under the Public Records Act, all public offices and local authorities are required to create and maintain full and accurate records in accordance with normal, prudent business practice. This includes activities carried out by contractors on a public sector organisation’s behalf. These records must also be accessible over time.

    The Public Records Act requires public offices and local authorities to have the Chief Archivist’s authorisation before disposing of their public records or local authority ‘protected records’. Disposal is the archival term for the ultimate fate of records; usually either by destruction or transfer to archives. Disposal as defined by the Public Records Act can mean the transfer of control of the records, alteration, discharge or sale of a record, not just the destruction of a record.”

    Comment by Ross — February 5, 2014 @ 1:22 pm

  16. Ross – Th PRA applies to the ‘business’ of a public entity for audit purposes (i.e. ensuring equivalence of s189 of the Companies Act). The PRA does not apply to the ‘product’ of the department, inasmuch as the product of the GCSB is information.

    Comment by Gregor W — February 5, 2014 @ 2:42 pm

  17. (too quick on the enter key)… so in essence, as long as the GCSB keep an auditable record of the detruction of the information ‘product’, they are probably compliant with the PRA as it meets the bar of “maintain[ing] full and accurate records in accordance with normal, prudent business practice”.

    Comment by Gregor W — February 5, 2014 @ 2:46 pm

  18. I’ve found Emma’s photos and posts about Egypt more interesting and thoughtful than anything I’ve read on this blog for a long time

    Comment by Sam — February 5, 2014 @ 3:00 pm

  19. Well thanks Sam. But is it interesting when a tourist visits a dictatorship, talks to a couple of tour guides and taxi drivers about whether they like the military and then comes home saying, ‘The people there love the army! The mainstream media are lying to you!’? I dunno . . . It is hilariously predictable that the PAS community would consider this insightful.

    Comment by danylmc — February 5, 2014 @ 3:23 pm

  20. The Public Records Act allows agencies to dispose of certain categories of types of records without seeking specific permission – there is blanket permission given for the destruction of certain types of records. But don’t expect the Chief Archivist to make a public comment on this story; his office has been subsumed by the Department of Internal Affairs where he is not free to speak publicly about whether the law he administers has been breached or not, without first gaining the permission of the DIA hierarchy.

    Comment by MeToo — February 5, 2014 @ 3:33 pm

  21. But don’t expect the Chief Archivist to make a public comment on this story; his office has been subsumed by the Department of Internal Affairs where he is not free to speak publicly about whether the law he administers has been breached or not, without first gaining the permission of the DIA hierarchy.

    The media could ask Archives if records have been disposed of by GCSB but I suspect they wouldn’t get very far.

    Comment by Ross — February 5, 2014 @ 3:52 pm

  22. Remember John Key said of the GCSB: “This is a spy agency. We don’t delete things. We archive them.”

    Comment by Ross — February 5, 2014 @ 4:01 pm

  23. Ross – That is probably because he doesn’t know how the agency works on an operational basis and prefers a glib soundbite to facts.

    The GCSB like any business that collects vast amounts of data faces classic ‘Big Data’ issues.

    At some point, assuming that they are maintaining their analysis information – on line, offline or some archived dependant on how current it is – as the output work product of their raw data capture, they will purge the source information if it is no longer relevant. This is pretty standard information management practice.

    And yes, the media could ask Archives, but the question would make no sense because it is beyound Archives’ purview so would presumably elicit a puzzled and slightly hostile expression on the face of a harrassed minor functionary who probably has better things to do.

    Comment by Gregor W — February 5, 2014 @ 4:21 pm

  24. Under the Public Records Act . . .

    The GCSB and other agencies that carry out surveillance are a bit different, in that they will create records that they’re not allowed to keep. I’m guessing that, say, the family member of someone they have a certificate to spy on speaking to their doctor on the phone is something they might pick up and then be obliged to destroy.

    Comment by danylmc — February 5, 2014 @ 4:23 pm

  25. It is hilariously predictable that the PAS community would consider this insightful

    Isn’t their rule number one that you don’t talk back to the Prefects? (And especially not to the Head Boy of the Interwebz aka Brown R).

    Comment by richdrich — February 5, 2014 @ 4:23 pm

  26. PAS’s number one rule seems to be polite to anyone there, be they one of the blog writers or not.

    Emma’s last blog does remind me of my Dad coming back from a guided holiday in Turkey with stories (from the guide) of how amicable the parting of Greece from Turkey had been and how no one held any grudges. This did not match up with what my sister had heard from people with Greek ancestry or with what I’d read.

    Comment by AVR — February 5, 2014 @ 4:48 pm

  27. As well as requiring agencies to create and maintain full and accurate records etc etc it the Public Records Act also requires agencies to seek the Chief Archivist’s permission to dispose records. However, from memory, these requirements are trumped by other statutes such as s23 Danyl cites above. Outside this case, I’m surprised the PRA isn’t brought to bear more regularly by investigators (whether official like the Ombudsman, or unofficial, like bloggers). Worth noting in passing too that DIA has absolutely smothered the statutory independence of the Chief Archivist (who in my view should be as independent as the Ombusdman or Privacy Commisioner) and who has recently resigned in any case.

    Comment by Teej — February 5, 2014 @ 5:07 pm

  28. Ya’ll seem a lot more clued up than me, about the record keeping business, so what sort of timeframe are we talking about with this ‘ageing off’ do we think?

    From memory they were grabbing DotCom stuff fairly close to the time of the raid, and there wasn;t all that much time after the raid before it all turned to shit for the spooks, legal-wise. Is there a requirement that the ‘ageing off’ process be halted?

    And it does take a bit of swallowing to believe that the ‘ageing-off’ requirement was the part of the Act that the GCSB took a narrow reading of and complied with to the letter. from my reading, and I’m not, like I said, clued up on it, the ageing off applies to everything they collect that isn’t covered by them wanting to keep it ‘because reasons’.

    We know they were dead excited about working with the FBI and well keen to be helpful, so the ageing off needs more explaining, to me at least.

    i want to know what is the timeline for ‘ageing off’, what % of what they collect is ‘aged off’. and who decides whether or not something is covered by the exemptions to ‘ageing off’; and how they decide that.

    Comment by Pascal's bookie — February 5, 2014 @ 6:50 pm

  29. “Election October 25th 2014, Dotcom party gets 5%, makes coalition with Greens and Labour.

    March 2nd 2015: GCSB abolished, surveillance laws repealed.”

    I wanted to make some sarky comment, but honestly, this is such effective self-parody that I feel superfluous.

    Comment by kalvarnsen — February 5, 2014 @ 7:22 pm

  30. And btw, I find Emma’s work on Egypt super grating, too, but the NZ blogosphere is full of the self-important bourgeoisie.

    Comment by kalvarnsen — February 5, 2014 @ 7:23 pm

  31. PB – it entirely depends on the business, but the rule of thumb is to test whether the information has value, which tends to be the subjective analysis of how current it is (information value degrades over time) and how pertinent it is (does it contribute to a current business output – this also includes historical information which led to the BAU state coming into existence e.g. contracts – or could it contribute to a future business output; in the case of KDC, how the information contributes to a current or future prosecution.

    So logically, to avoid holding tons of extraneous information which imposes search costs on an entity, you get rid of the stuff that does not meet that test, lowest value first.

    In the corporate world, 2 years online and 5-7 years offline/archive is pretty normal unless there is a specific requirement to keep it longer like legislation.

    Comment by Gregor W — February 5, 2014 @ 7:23 pm

  32. This is not the corporate world – public bodies are required to keep anything that can be regarded as a formal record:

    http://archives.govt.nz/advice/continuum-resource-kit/continuum-publications-html/f1-make-record

    and to do so indefinitely (eventually passing them to Archives for safe keeping).

    The GCSB Act and the Archives Act don’t appear to carve out any exceptions for GCSB. They can be granted an exception by Order in Council, but I can’t find any that mention Archives AND GCSB?

    I would expect that as a minimum there would be a record of what information was deleted, the investigation/warrant it was collected under and the rationale for the deletion.

    Comment by richdrich — February 5, 2014 @ 7:39 pm

  33. Incidentally, I suspect that many government bodies are in breach of archival requirements – in particular anywhere that follows “agile” methodologies (or the bastardised NZ versions thereof) are almost intrinsically breaching the Archives Act.

    “The most efficient and effective method of conveying information to and within a development team is face-to-face conversation”

    versus

    “[records] must correctly reflect what was communicated, decided or done”

    Comment by richdrich — February 5, 2014 @ 7:50 pm

  34. @25 “Isn’t their rule number one that you don’t talk back to the Prefects? (And especially not to the Head Boy of the Interwebz aka Brown R).”

    @26 “PAS’s number one rule seems to be polite to anyone there, be they one of the blog writers or not.”

    I’d amend that to say that if you’re Craig Ranapia, you get free rein to bully everyone as you like, but if anyone plays the ghost at the banquet, you get shut down.

    Comment by Rhinocrates — February 5, 2014 @ 8:41 pm

  35. @richdrich – wrt your comment at #32 regarding auditability, see my comments at #16-17.

    Broadly, the same applies in terms of good IM practice in the private sector inasmuch as private companies are also required under the Companies Act to keep certain records of decisions taken etc. for the purposes of on troll and legal discovery.

    As a side note, ‘agile’ does not mean ‘don’t keep records’. That’s merely a justification for people who don’t like governance overhead and require a fig-leaf to justify it.

    Comment by Gregor W — February 5, 2014 @ 10:00 pm

  36. ‘On troll’ should read ‘control’.

    Comment by Gregor W — February 5, 2014 @ 10:00 pm

  37. “…public bodies are required to keep anything that can be regarded as a formal record… and to do so indefinitely (eventually passing them to Archives for safe keeping).”

    Yes, but only records that have some sort of permanent value, not every record. For example, a routine email saying there is cake in the staffroom at morning tea can be deleted without the permission of the Chief Archivist, but the minutes of a meeting would need to be kept for futher consideration. Only about 5-10% of records made are deemed worthy of archiving. The rest are disposed of, in many cases quite routinely according to general disposal schedules.

    And that’s where Archives NZ and the Chief Archivist should have an opinion, had they not been neutered as one of the first acts of public sector restructuring of this government.

    Comment by MeToo — February 5, 2014 @ 10:05 pm

  38. Librarians unite!

    Comment by bart — February 6, 2014 @ 6:20 am

  39. I’d amend that to say that if you’re Craig Ranapia, you get free rein to bully everyone as you like, but if anyone plays the ghost at the banquet, you get shut down.

    The standard critique of Public Address System is that you have to be nice to Russell’s friends while they can be as abusive as they like. It’s the reason everyone interesting left. One of the reasons I dislike Hart is that I associate her ascendancy – running around telling everyone she disagreed with that they’re a twatcock who needs to check their privilege, just saying – with the decline of PAS. But each ex-commentator seems to blame a different PAS regular. It’s Russell’s unofficial policy as a moderator that ruined it. Which is a shame. Every now and then I go back and look at, say, the comments threads about the terror raids and feel kind of sad that such a big vibrant online community just up and died.

    Comment by danylmc — February 6, 2014 @ 6:41 am

  40. Slightly off topic but posted because it is an outrageous piece of abuse of process, the Tax Administration Act requires records to be kept for 7 years after the end of the year of assessment to which they relate. A new tax bill going through on the taxation of foreign superannuation schemes allows the IRD to assess (on a concessionary basis) any taxpayers who didn’t disclose a super funds transfer made since 1 January 2000. When the Tax Administration Act requirement was pointed out in submissions the stalwarts of the Finance and Expenditure Committee (including Winston Peters) merely demurred and accepted the IRD’s stellar advice “The 15% option is a concessionary measure and officials therefore disagree with limiting its scope”

    I guess the lesson of the foreign superannuation bill and Dotcom is that rules around timing are those which best suit the Govt Agency at the time. OK?

    ‘Twas ever thus but the cynicism is appalling.

    Comment by TerryB — February 6, 2014 @ 7:47 am

  41. “…But each ex-commentator seems to blame a different PAS regular…”

    PAS’s problem is it never changed or got any fresh blood. As such, it serves as a wonderfully accurate social record of the psychological journey of most middle class liberals from youthful liberal rebellion to middle aged liberal establishment. I am not saying that journey is necessarily a bad thing, we all get older, but the deep denial that the PAS community seems to be in over having undertaken it is.

    The place I work for seems to archive ALL the email sent and received for at least ten years, although I have doubts about anyone’s backup tapes from 2004.

    Comment by Sanctuary — February 6, 2014 @ 8:57 am

  42. a routine email saying there is cake in the staffroom at morning tea can be deleted without the permission of the Chief Archivist

    I’m sure Dotcom isn’t after that kind of info…so that’s a bit of a red herring. There may well be some exemptions for GCSB re the Public Records Act but for the most part I’d expect it to apply. Having asked at least one government department (not GCSB) for official information, I can say that it’s response has been dismal. Whether that department has simply been lazy or whether it’s deliberately shredded info, I don’t know.

    Comment by Ross — February 6, 2014 @ 11:02 am

  43. Lawyer Steven Price has posted about government departments not taking their OIA duties very seriously.

    http://www.medialawjournal.co.nz/?p=232

    Comment by Ross — February 6, 2014 @ 11:05 am

  44. Ross – it’s simply the case that the type of records probably being asked for has been assessed as non-pertinent, like say, phone or emails calls to his friends and family that contain no information relevant to his case.

    If that is the case – and I’ll admit that if a big ‘if’ – then they are adhering to the intent of their own Act regarding purging of incidental records and the PRA, so long as an audit trail exists and they didn’t just trash the records willy nilly without a described justification, though again, the value of any justification would be fairly suspect and could always be viewed as self serving.

    The trouble is because of the nature of the agency, we will never know.

    Comment by Gregor W — February 6, 2014 @ 11:47 am

  45. So Russel quit writing for the Listener only to turn PAS into the Listener with comments?

    I can’t read Ranapia comments without a vision of an aged ‘Just Jack’ from Will & Grace, flouncing out silly put downs left and right.

    Personally I blame Bush. Ever since the left had to pretend they liked the current President by not commenting on his horrendous failures all we get frim PAS is people saying ‘this’ and pretending crap puns are biting social commentary on minor Auckland issues and screechy women getting all waily waily about something useless so long as they get to shout from their high horse. Oh and Russel’s weekly music jerk fest instead of meaty conspiracy theories about Bush, Halliburton and the Illuminati.

    Comment by scerb — February 7, 2014 @ 8:21 am

  46. Fascinating dual thread. Public Address does seem pretty clicky but isn’t every blog?

    Comment by nigelsagentinthefield — February 7, 2014 @ 10:39 am

  47. Public Address does seem pretty clicky but isn’t every blog?

    Don’t know if that was intended, but it was pretty funny.

    Comment by Andrew Geddis — February 7, 2014 @ 10:51 am

  48. The question is, will PAS rise to the bait?

    Comment by kalvarnsen — February 7, 2014 @ 10:55 am

  49. Inconvenient truth? Or very convenient section>

    Comment by Daniel Lang — February 7, 2014 @ 11:17 am

  50. “Public Address does seem pretty clicky but isn’t every blog?

    Don’t know if that was intended, but it was pretty funny.”

    Sadly not intentional! Clicky AND cliquey.

    Comment by nigelsagentinthefield — February 7, 2014 @ 11:37 am

  51. Sure, the GCSB routinely deletes its standard intel data, but how hard can it be to tag for preservation any of it that is connected with a court case? Their behaviour so far does not earn them the benefit of doubt.

    Comment by Sacha — February 7, 2014 @ 3:19 pm

  52. The gcsb and public address are peas in a pod. Both insular little worlds detached from reality, protecting their damaged community by deleting inconvenient intrusions.

    Comment by scerb — February 9, 2014 @ 7:45 am

  53. @scerb: Is Russell Brown spying on me in World of Warcraft, though?

    Comment by kalvarnsen — February 9, 2014 @ 11:29 am

  54. @kalvarnsen. Dunno, did you steal his mum’s recipie for pork chops?

    Comment by scerb — February 9, 2014 @ 7:27 pm


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