Graeme Edgeler overviews the extant issues in the Dotcom case and concludes:
is it a function of the Police to intercept the communications of people in respect of offences that they themselves cannot get interception warrants?
As a lawyer, I could comfortably argue that the actions of the GCSB, as I understand them to be, would have been with the scope of the GCSB Act had none of the Kim Dotcom and his colleagues been permanent residents.
People make mistakes. People misunderstand questions, or misunderstand the answers they are given to their questions. They assume other people have conducted the necessary checks, or obtained the right permissions. Such mistakes may rise to the level of incompetence, or even be criminal. We’ll get some information later in the week about how the the GCSB found themselves illegally intercepting the communications of a couple of New Zealand residents.
But short of someone in the GCSB acting as some sort of rogue agent, how that breach happened is not actually our biggest problem. The actions of the Police in using the GCSB as an end-run around laws we have put in place deliberately limiting police powers are of much greater concern.
It does seem to me that high profile cases involving police and intelligence gathering have a tendency to reveal either unethical behavior or downright illegality on the part of the authorities. To turn it all into a clumsy metaphor, I wonder if this is flotsam – ie when they’re dealing with a high profile case the complexity throws up uncharacteristic instances of poor judgment; or is this the tip of the ol’ iceberg: do the authorities break the laws around surveillance on a routine basis, but it only becomes apparent in high-profile cases involving clever lawyers, political oversight and media scrutiny?