Excessive burden? USA not contributing to NZ’s $5.8m Dotcom case costs

Kim Dotcom outside New Zealand's Parliament

Crown Law has provided figures under the Official Information Act on the money and time spent in relation to legal work completed in respect of Kim Dotcom and his associates which amounts to more than $5.8 million.

Crown Law writes that the United States Department of Justice is not reimbursing New Zealand for any of these expenses, even though the cases largely relate to charges that they wish to bring against Mr Dotcom and his associates.

Crown Law hours spent

The figures:

  • are as at 8 February 2017;
  • include work on both domestic and mutual assistance (United States initiated extradition) legal proceedings;
  • exclude work completed to provide advice to other Government Departments, for example the Police or the GCSB who respectively picked up the bill for Crown Law’s advice to them; and
  • include most Crown Law legal staff time and some support staff time.

2011: 432.10
2012: 7,356.67
2013: 4,087.50
2014: 5,742.27
2015: 4,911.80
2016: 3,207.26
2017: 4.77
Total: 25,742.37

25,000 hours.

Using a conservative estimate of the value of the time spent ($140 per hour,1 which is the rate a Crown Law junior prosecutor would be billed out as – senior solicitors’ time is likely worth more, support staffs’ likely less), this comes to around NZD $3.6 million.

Disbursements

New Zealand has also covered the bill for work completed by external counsel on Crown Law’s behalf and expenses paid by Crown Law in relation to the Dotcom/Megaupload matters – another NZD $2.2 million.

This includes: $1.98 million on external barrister/solicitor fees, $171,800 on travel and accommodation, $23,151 on Court filing fees, $20,125 on photocopying, and $17,356 on professional fees including research material.

An excessive burden?

At least NZD $5.8 million has been spent on Kim Dotcom et al. by New Zealand so far, and it begs the question: was it worth it?

Should we have refused the United States’ mutual assistance request when it was made? Section 27(g)(i) of the Mutual Assistance in Criminal Matters Act 1992 allows New Zealand to refuse a request made by a foreign country if “in the opinion of the Attorney-General, the provision of assistance would impose an excessive burden on the resources of New Zealand”.

Kim Dotcom had hundreds of millions of dollars worth of assets before the raid on his home and it’s not a shock that he has aggressively defended the cases brought against him.

If spending $5.8 million+ has not been an excessive burden on New Zealand, what amount would be?

1 This is a lower rate to that used by David Fisher in his September 2015 article of $198/hour.

Image credit: Sarah-Rose


The full response from Crown Law, including the breakdown of expenses incurred is embedded below.

University of Canterbury must improve crisis student communication and support

Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here.

Student communication

University of Canterbury James Hight libraryOn 22 July 2016 a woman was sexually assaulted while walking through the University of Canterbury owned Ilam Fields.

In response to a request from the Police, who informed UC Security of a “physical assault”, an email was sent to all students that day.

On 24 July 2016 a reporter from The Press contacted the University in response to the Police releasing a statement to the media. The Police told The Press that the assault was actually a sexual assault, and this fact was published in an article that day. In response to an Official Information Act request, most of which was initially declined, the University said that “the Police appeared not to have told the University of the sexual nature of the incident before telling the media”.

However, the University did not inform students of the sexual nature of the incident after it became public knowledge. The assault was alluded to in a 28 July UC blog post, which included 10 ’safety and security tips’ and a list of ’support for students’ links, including a link to the UC Health Centre. This content was also included in the next edition of the ‘Insider’s Guide Newsletter’, a weekly digest sent to all students, on 31 July.


Last night a student died suddenly at the Rochester and Rutherford Hall of Residence.

The death has been reported as sudden and not suspicious, often used by the media as code for a suspected suicide.

UC acting vice-chancellor, Dr Hamish Cochrane was quoted by the media as saying “all the university’s students and staff were advised [Sunday], and made aware of the support available”.

Communication to students consisted solely of a UC blog post listing four UC support services that are available to students, including the UC Health Centre. Links to blog posts appear for a few days in the sidebar of Learn, UC’s online learning management system which is regularly accessed by students and staff. However, no email was sent to students, and there was no acknowledgment that a student had died.

Late on Sunday night, a link to the blog post was included in the ‘Insider’s Guide Newsletter’ emailed to students.

UC Health Centre Counselling under pressure

Students are struggling to access support.

The UC Health Centre provides free counselling to UC students, however their website states that counselling appointments “are in high demand [and] you may have to wait a few weeks to be seen”. During office hours there is an on-call counsellor to deal with students facing an “emergency situation”.

During this year’s UCSA elections one group of candidates asked students on Facebook which one out of four campaign policies they thought was most important. “Increased mental health awareness and support” was voted second. In response to a question asking how the UCSA should help support those with mental health issues, students voted overwhelmingly for “increased health centre funding for more counsellors”.

Students wanting to skip the UC Health Centre counselling waiting list could choose to pay for sessions with a private counsellor or psychologist. Students may be eligible for the disability allowance, however there are restrictions, including a maximum payment of $61.69 a week (appointments with private psychologists can cost $150 or more).

When an internet forum solves a crime before the police

Hotel

“Seriously lacking hotel. Staff seems overwhelmed. Rooms are marginal at best. And then there’s the dead body in the water tower.” – Christopher Karwowski, Google Review

Elisa Lam went missing at the end of January 2013 and around February 19 was found in one of her hotel building’s water tanks, used by guests and residents for drinking and bathing. The hotel has a little history, like of serial killers staying there. To add to the weirdness her death was ruled an accident and the footage police released in an attempt to find her after she went missing was, well bizarre:

The police had searched the roof with dogs and either missed her body or it wasn’t there yet. A thread on Web Sleuth’s about the case makes eerie reading (look at the timestamps).

“Do you suppose LE physically checked every room (nook & cranny) in the hotel/hostel…??? or would they require a search warrant to do that…???”

tarabull at 02-09-2013, 03:56PM

“Ok, is there anywhere she may have gone into the water, or fallen off something?”

Wolf Dreamer at 02-14-2013, 04:29PM

“in my opinion i think it is very probable she got herself
stuck somewhere while hiding,
i really hope they have searched every mouse hole in that ***** hole”

Catchy kitty at 02-15-2013, 01:08AM

“Gotta ask the dumb question.

Do you think the police searched every room in the building?

Maybe she hasn’t left the building”

jetsetsam at 02-15-2013, 01:19 AM

“I have a hard time believing every nook and cranny has been searched – I feel like there’s a good chance she’s still in the building.”

tarabull at 02-16-2013, 12:01 PM

“There are other places in the hotel they could search without having to get a warrant, though… dumpsters, kitchen area, storage areas, the basement, to name a few. I’m sure the hotel managers would gladly allow it without a warrant.”

TxLady2 at 02-16-2013, 12:28 PM

“I really want to know if they have searched the WHOLE building. I think it is necessary.”

ahlang1226 at 02-16-2013, 03:50 PM

“Hoping that the roof and furnace room have been checked… Watched the video many times now and it really is freaky, wonder if Elisa’s friends can interpret any of her gestures?”

dotr at 02-17-2013, 01:14 AM

“Can the police just search the whole hotel please………Someone on facebook wrote this, bascically saying Elisa is still in the building:

‘I’m with Ken. She is still in the hotel. Either she was take to another hotel room, the roof, basement or… But I don’t believe she left. … I wish the police would check all the rooms and fire escapes and storage areas. I think she is still there.’”

ahlang1226 at 02-17-2013, 02:22 AM

Image credit: John Stavely

Secret SIS Search Warrants and Telco Data Retention

This phone is tapped

The SIS and police confiscated digital devices belonging to Former Fijian cabinet minister Rajesh Singh last week “in connection with an alleged plot to assassinate Fiji’s leader Voreqe Bainimarama”.

A woman from the SIS turned up with three plain clothed police officers and said she had a search warrant. But she couldn’t show Rajesh it or give him a copy because it was classified. Because you know, wanting to know why people are raiding your house is a completely unreasonable request.

Idiot/Savant asks why, if the alleged plot was actually reasonable, was Rajesh or someone else not arrested. @civillibertynz points out that this secret warrant wouldn’t even need to be presented in court later on.

The laptop and phone were returned later in the day, assumedly after being copied. I wonder if the SIS are allowed to install spyware?

Data retention by NZ telecom providers

I also wonder whether they needed physical access to the phone for what they were looking for. Telecom companies here are very vague about how long they keep user data for. It doesn’t seem like customer facing staff (and thus customers) are generally privy to the period of time information is actually kept.

Telecom says text message content is stored for two to three months. Vodafone says up to six months. 2degrees said six months, but that the technical team could access archives further back than that (a detail I wonder if others didn’t mention).

I requested my data from 2Degrees and they sent me every text message I had sent involving 2Degrees (18+ months worth), including nine months of text messages I had sent to 2degrees customers when I was on another network.

I wonder whether in practice this Telecommunications Information Privacy Code rule is being followed:

“A telecommunications agency that holds telecommunications information must not keep that information for longer than is required for the purposes for which the  information may lawfully be used.”

I understand that there’s no legal requirement for telcos to keep a hold of this data at all (section 40).

Whose interests are being served by keeping information for such an unnecessary amount of time, especially when customers have no idea it’s happening?

And whose interests are being served when a secret search warrant is served on an ex-foreign cabinet minister in relation to a dubious overseas assassination plot?

Image credit: tenaciousme

Where Is The CCTV Footage From The Dotcom Mansion Raid?

CCTV camera

Ars Technica sez:

“Since January, the Dotcom legal team has asked for the footage, but police refused, until finally the agency agreed that an IT expert for DotCom could come and collect a copy of the footage. When the IT expert arrived at the police station, he found the server completely disassembled, and authorities said they could not reassemble it or give him any footage. Now, no one outside the police agency is sure the footage still exists.”

Here’s what the Police said to me on 13 February:

“Police do not have any equipment which may hold this security footage. This equipment is held by the Official Assignee on behalf of the Crown, not Police.”

And here’s what the Insolvency & Trustee Service said on 17 February:

“The Official Assignee has no knowledge of any security camera footage.”

So what exactly does this footage show that the police and friends don’t want getting out?

Image credit: Charbel Akhras

THAT’S A RECORDING DEVICE!

Spilt tea

Someone has finally released the teapot tapes, the recording of John Key and John Banks talking at a Newmarket café, inadvertently recorded by cameraman Bradley Ambrose. This should have happened before the election.

Stuff are probably referring to the partial phone number John Key gives out when they say the authenticity of the tape is confirmed by information in the tape.

Here’s Steven Price on why it’s okay to link to.

Apparently police want to talk to six people who were in the café during the talk, because, you know, they probably recorded the conversation as well! (Or they can provide better details than the camera footage the police have?)

Mirrors: YouTube, SoundCloud and here.

Highlights:
(first four based on XboomcrashbangX’s comment on YouTube)

2:40 National Party are working with someone they would rather not. They are careful not to mention who.

4:08 A lot of Winston Peters’ constituents/supporters will have died.

6:10 John Key purposely doesn’t text John Banks so that it appears they are not working too closely, so they can say that they haven’t been in contact.

6:52 Don Brash is a strange fellow.

7:22 Is that yours? That’s a recording device!

7:40 What’s that? Someone’s recording device. Let’s take it with us.

10:30 It’s right here and it’s still going. [something about turning it on/off.] Take the batteries out.

Image credit: Lee Jordan

I don’t consent to this search, Mrs Tolley

The Ministry of Education has released guidelines regarding schools searching students and confiscating their property. The Education Act doesn’t specifically give schools the power to search and the issue hasn’t come before a New Zealand court before, so the guidelines really are just that. It’s possible though that courts would say that searching is an implied power under the general umbrella of a board having “complete discretion to control the management of the school as it thinks fit.”

On the other hand, it could be argued that as significant privacy issues are involved and that the power of search is not specifically given to schools that such searches are not lawful.

The protection from unreasonable search and seizure comes from the New Zealand Bill of Rights Act:

“Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.”

Risk to safety

Backpack contentsThese three words form the basis of the guidelines. The item being searched for must pose a risk to safety.

“Risk to safety means that there are reasonable grounds to suspect that students or staff are at risk of harm from an item that poses an immediate or direct threat to physical or emotional safety.”

I interpret an item posing an immediate or direct threat as one when the student possessing it has an intention to use it right now. In the examples attached to the guidelines, staff involved consider “whether there is an imminent risk to the physical or emotional safety of students or staff …”

I struggle to think of an example where a dangerous item is all at once: not visible (because if it was visible, no search would need to take place), is about to be used, and where it would be a good idea to start trying to search the student rather than try to deescalate the situation so the item isn’t pulled out.

A common sense approach!

So basically, instead of taking the student away from others and getting the police involved to begin with, school staff should involve themselves with dangerous or illegal items, potentially escalating a volatile situation. And of course, the student that won’t willingly hand over an item they’re suspected to have will obviously be happy to comply with an intrusive and legally questionable search.

Violate rights, tell parents later

“Except in exceptional circumstances you should inform parents or caregivers after a search has been conducted (if you have not already contacted them).”

No. Parents should be contacted first, always.

Diaries, mobile phones, and laptops

The guidelines mention searching correspondence under the definition of a search. They state that this would include “written and electronic material (e.g. in a diary, on a mobile phone or on a laptop).” None are mentioned again in the guidelines, except for a laptop in a weak example (see below).

This gives the impression that a diary, mobile phone or laptop could theoretically be searched in accordance with the “imminent risk of physical or emotional harm” criteria. Cue alarm bells. How that criteria could be construed as applying to electronic devices and diaries potentially containing very private material is beyond me.

Lukewarm examples

There is no strong scenario provided with the guidelines where a search should actually be conducted.

Scenario 1: Pornography on a laptop. Example correctly concludes that a laptop isn’t a threat if it’s not turned on and so shouldn’t be searched.

Scenario 2: Students caught smoking marijuana say they were sold it by another student. No search because police have to be called because of the illegal items potentially involved.

Scenario 3: Students are lighting deodorant on fire. Friends of a student hand over their lighters. Student is suspected to still have a lighter. Example says that there is an imminent risk to the physical or emotional safety of students or staff in this situation because “a student could easily be burnt if the activity continues.” Imminent risk, really?

Concludes that “as the risk is significant it is likely that the search should – if it safe to do so – be conducted.” I say education would be better than a search. There’s nothing stopping the student from bringing another lighter the next day after he’s searched. Searching isn’t going to magically solve the underlying problem.

Scenario 4: Hearsay that a student is going to “get” another student and more hearsay about a “knife.” Student seems upset and angry, doesn’t stop when teacher asks him/her to. Example correctly concludes that searching straight away when a situation isn’t calm isn’t a good idea. Example says if staff conclude there’s an immediate risk to call the police. Tick.

Or if the situation isn’t considered an emergency: the student has calmed down, staff don’t feel threatened, they only think a small pocket knife is involved, staff can “proceed to consider … if a search is appropriate in the circumstances.” Except they can’t have it both ways. If the student is calm and wouldn’t use a knife if he/she had one (no imminent threat) then a search isn’t necessary. If the student would use a knife if he/she had one, then the police should be called.

Unnecessary and a breach of BORA

Vanushi Walters, YouthLaw solicitor speaks the truth. If the situation is serious enough for a search, it’s serious enough for the police.

“Search and seizure powers in schools are unnecessary and a breach of the Bill of Rights Act. She said the most appropriate course of action is for principals and teachers to call the police.”

Let’s make the guidelines law

But wait, there’s more.

“The Ministry was also looking in to possible legislative changes to give schools more support in what was ‘a complex legal area,’ she said.”

Give school staff equivalent or greater powers than the police have so they can search students? Okay!

You want to violate my privacy? You’ll have to put up a fight, I don’t consent to this search.

Image credit: Hello Turkey Toe