Kim Dotcom Illegal Surveillance And Response: Timeline

The following timeline is compiled from affidavits relating to the GCSB's surveillance of Kim Dotcom and others released to the Labour Party.

The surveillance by the GCSB (Government Communications Security Bureau) at the request of OFCANZ (Organised and Financial Crime Agency New Zealand – an agency hosted within the New Zealand Police) was publically revealed in September 2012 and admitted to be illegal as Dotcom, his colleague Bram van der Kolk and their families were New Zealand residents.

21 September 2011- (Wormald AFFIDAVIT para 5)
Mr Wormald takes command of advancing investigation.

9 December 2011 – 16:12pm Email- Grant Wormald to.[redacted] File Document 00542
A formal request for information DoL has on subjects named in application. Asks for no online searches to be made of the subjects as they “may have the capability to trace who's looking at them online”.

Actions were being planned for the new year so “there is not too much time to put things in place”.

14 December (Wormald affidavit beginning para 18)
Mr Wormald hosts meeting at OFCANZ attended by representatives from Crown Law Office, Ministry of Justice, Police Legal Section and representatives from GCSB. Meeting was intended to “convey information about the operation to several more representatives of government departments”. All representatives were then shown out of the room with the exception of the GCSB staff. There was then a discussion as to the viability of GCSB becoming involved. The meeting lasted three to five minutes and nobody present took any notes. Mr Wormald’s recollection was that the discussion focussed on “intelligence around the timing and location of any birthday party for Mr Dotcom, and the location and likely travel plans of the other suspects sought by the USA.

Mr Wormald recalled that the conversation turned to issue of whose communications could be intercepted.

“There was general consensus that all of the parties under discussion were not New Zealand citizens.”

Mr Wormald said he thought it was not possible for GCSB to intercept either Mr Dotcom or Mr van der Kolk because they were living in New Zealand. However, a GCSB representative said they were able to intercept, provided the persons involved were not New Zealand citizens.

Mr Wormald said they were sure that Mr Dotcom and Mr Van der Kolk were not citizens, but were uncertain what type of ‘residency’ they held. He offered to act as a go between for GCSB and Immigration NZ to clarify their status, but, after a discussion this deemed necessary at that time.

16 December (Wormald affidavit para 50)
Mr Wormald authorises Detective Sergeant McMorran to sign a Request For Information (RFI)to the GCSB on Wormald’s behalf.

16 December (Wormald affidavit para 58)
“To the best of my recollection, I did not see a copy of the RFI submitted to GCSB until late February 2012 after some concerns had been raised about the legitimacy of the interception of Mr Dotcom and Mr Van der Kolk.”

16 December (Wormald affidavit para 11)
Mr Wormald receives documents from Immigration NZ concerning Mr Dotcom’s travel arrangements, of which, in his last two arrivals(15 December 2010, and 26 September, 2011, Mr Dotcom is identified as a ‘Resident’.

16 December 2011 to 20 January 2012 (GCSB AFFIDAVIT para 8)
GCSB intercepted communications from and between persons of interest, and information of relevance” was passed onto OFCANZ staff.

11 January 2012 (Wormald AFFIDAVIT para 13)
Police receive Dotcom immigration file confirming he was granted residence 18 November 2010.

January (Wormald AFFIDAVIT para 4)
FBI Advises that Dotcom may hold birthday party on 20th or 21st.

“If that occurred, and all the named suspects were there, we were asked whether we would be able to arrest and extradite them.”

20 January - Operation Debut carried out.

30 January 2012, 2:38pm OFCANZ to GCSB File Document 191
Thanks GCSB team for assistance on Operation Debut.

“The reporting you were able to provide often helped to confirm or refute other sources, and assisted in providing situational awareness and context to (appropriately cleared) operational planners.”

Proposes topics of discussions for debrief to include summary of operation, what worked well and what could be done better.

30 January 4:09pm GCSB to … [redacted] File Document 190,191
Congratulates on success of operation on the 20th which they had followed closely in the media.

“We all thoroughly enjoyed being involved in this case and were happy to provide what assistance we could.”

Confirmed that they would be keen to have a debrief “at some time in the not too distant future”.

1 February 8:29am GCSB to OFCANZ File Document 189
Aim to present tactical/operational level material at debrief, with analysts running through their SIGINT tools and how they used the[redacted] that OFCANZ provided. The director and senior management would be interested in seeing material, especially the director as he started in the office after Waitangi Day and had not seen SIGINT tools in action yet.
Wanted seniors to take a “back seat” position and have let the analysts lead the discussion.

1 February 3:16pm OFCANZ to GCSB File Document 188
Outlines who will speak and the order of speakers. Mr Wormald to lead from police/investigative side. A short roundup of the operation from conception to termination/court proceedings

“McMorran will hopefully attend and explain some of the dynamics and legal aspects of the cooperation with (mainly) the FBI”.
“I see this as a chance to highlight the success of this op in terms of us seeking your assistance in a fairly unique case and you guys going the extra mile to assist. Also the connectivity to you folks from the field using the [redacted] was a very simple yet effective medium to provide regular updates.”

“I think Debut is a joint model that could be replicated (and built upon) to great effect in future operations with a regional and or wider transnational component.”

1 February 2012, 4:05pm GSBC to OFCANZ File Document 188
Makes pitch for 16 February meeting, 10am. Said it is shaping up to be a good session, and agrees it will likely provide a “solid model for future collaboration”.

15 February OFCANZ to GCSB 8:42am. File Document 325
Confirming meeting and attendees: Superintendent Ray Van Beynen (deputy director) D/Insp Grant Wormald (OC OP Debut), D/Sgt Nigl McMorran 2ic, myself, and a police analyst. All are “BCD”
Will send PP through that day.

15 February GSBC to OFCANZ 8:59am. File Document 325
Confirms 10am startLooking forward to PP presentation. In attendance from GCSB will be director Ian Fletcher, deputy director intelligence, deputy director mission enableman, assistant director production and outreach, global issues unit manager, (Myself)and ….(redacted) head presenter, an analyst “who joined the team yesterday, and who will be supporting NZ Police and OFCANZ”.

16 February 2012 (Wormald affidavit para 86)
Mr Wormald attends debrief of OFCANZ and GCSB staff in Wellington. Mr Wormald was surprised when a GCSB staff member points out potential issues with the interception of Mr Dotcom and Mr van der Kolk’s communication as at that stage the project had been terminated for three weeks.

Mr Wormald and the GCSB agree the matter needs to be dealt with promptly.

20 February (GCSB AFFIDAVIT para 15)
“In response to a query made by a GCSB colleague at my direction to OFCANZ, after interception operation had been completed, and I had become aware of media reports that Mr Dotcom was a New Zealand resident.

22 February (GCSB Affidavit para 15)
“I learned on 22 February that Immigration NZ had advised OFCANZ (who had not passed on the information to GCSB), that Mr Dotcom and his family and Mr van der Kolk and his family were in fact persons holding residence class visas under the Immigration Act 2009.”

22nd February 2012, 12.11pm, OFCANZ to GCSB File number 237
OFCANZ inform GCSB that several serious issues had arisen regarding residency status.

"Some OFCANZ staff (including myself) assumed that citizenship/nationality rather than residency is the [illegible]/defining criteria for targeting/exemption, and/or made incorrect assumptions as to what actual status of particular individuals was based on intelligence received."

“Some OFCANZ staff assumed that certain persons were indeed not being targeted and that the intelligence received was derived from external, non-resident targets."

OFCANZ then accept responsibility for some errors of process and judgement.

22 February 2012, 3.02pm. GCSB to OFCANZ. File number 230

GCSB reassure OFCANZ that there has not been a major inquiry or “witch hunt” at GCSB about Dotcom's residency status.

“A summary document has been given to legal advisor about TF Debut about compliance issues which is to be stored on file for future reference, but they do not expect it to lead to further actions or questions asked.”

"None of us are of the opinion that there needs to be any follow on discussions - certainly at a Deputy Director level. GCSB staff and managers are still viewing TF DEBUT as a very successful collaboration with OFCANZ and we would not want this issue to take a shine off things"

22nd February 2012, 3.53pm. OFCANZ to GCSB File number 230

Responding to above email

"We just wanted you to be assured that we had been ethical and proper in our dealings re this whole RFI and not a bunch of clowns walking roughshod over the law and sound practice. We too are keen on future cooperation and despite DOTCOM getting bail today, still see the shiny side of the operation. Never the less, we will take some good lessons out of this for next time.”

27 February 2012 11.41am GCSB to OFCANZ File number 262

GCSB officer informs OFCANZ of update on opinion of GSCB layers regarding DEBUT:

"[lawyers] agreed that as the families only had Residence, there was no inadvertent targeting of NZSID7 protected persons - who are only protected when they have Permanent Residency. So all done and dusted."

"Bring on the next case!".

OFCANZ to GCSB, Date illegible but email classified on 28th February 2.46pm File Number 356

[illegible] talked to [redacted] and he said [redacted] happy, so it turned out ok. More luck than good management but all good all the same. Glad you liked working with OFCANZ, hopefully we will have some more new and exciting things for you soon. "

GCSB to OFCANZ 4.35on Date illegible, February 2012. Document 356.Reply to the email above.

GCSB wanting to give correct impression of how Residency status issue was being treated.

"[redacted] wrote up a brief document to catalogue the nationality issues and submitted it to [redacted] was pretty relaxed."

"People here have been pretty relaxed about it all.”
“Yeah I think [redacted] was getting pretty excited to start sinking his teeth into things. He will br happy to help out whatever they throw at him.”

17 September 2012- Confidential Affidavit- High Court of New Zealand in Auckland.
Between Kim Dotcom, Finn Batato, Mathias Ortmann, Bram Van Der Kolk, and the Attorney General and the District Court of the North Shore.

GCSB says:
They note that Wormald declined to answer a question as to the identity of the “persons or entity” in his notebook, and “redacted”.

States GCSB was the entity referred to in notebook.
That the primary intelligence requirement levied on the bureau by OFCANZ was for “technical assistance to determine travel arrangements and likely locations at relevant times of persons who were to be located at and arrested in relation to charges on which they had been indicted in the State of Virginia”.
The secondary intelligence requirement was for information as to whether the “individuals of interest” were aware that they might be arrested.
OFCANZ had stressed to GCSB that operation information was being “extremely closely held for operational security reasons”.

The persons of interest to GCSB were: Kim Dotcom, his wife Mona Aquino Verga, Bram Van Der Kolk, (customer support) his wife Junelyn Van Der Kolk, Finn Habib Batato (Chief Marketing Officer, Vice President of Business Development, Mathias Ortmann (Chief Technical Officer), Sven Echternach(Secretary of Megaupload, head of Business development), Julius Benko (Graphic designer), Andrus Nomm (Projects planning, development and testing).

Other persons identified as New Zealand citizens or permanent residents were identified as “persons of interest” to OFCANZ but OFCANZ were informed that these peoples communication could not be lawfully intercepted.

Prior to agreeing to interception operations I was informed by OFCANZ that all persons [listed above] were “foreign persons”.

Between 16 December 2011 and 20 January 2012 intercepted communications from and between these persons of interest, and :information of relevance” was passed onto OFCANZ staff. It related solely to the intended movements of the group and the “atmospherics with the group. (whether they were aware of police operation against them). Information was provided “for the purpose of ensuring the safety of New Zealand Police staff involved in operation”. No information was reported to OFCANZ relating to alleged offences by any of group.

Section 14 of the GCSB act states that the Bureau may not intercept the communications of a person who is either a New Zealand citizen or a permanent resident.
During initial discussions with OFCANZ the issue of residency was raised, and it was advised that none of the relevant persons had New Zealand Citizenship, or were permanent residents. “The GCSB acted in reliance on upon that advice... at all times the GCSB believed that the relevant persons were foreign. If the Bureau had known otherwise, interception operations would not have been undertaken. This advice subsequently proved, however, to be incorrect.”

“In response to a query made by a GCSB colleague at my direction to OFCANZ on 20 February 2012, after interception operation had been completed, and I had become aware of media reports that Mr Dotcom was a New Zealand resident, I learned on 22 February that Immigration NZ had advised OFCANZ (who had not passed on the information to GCSB), that Mr Dotcom and his family and Mr van der Kolk and his family were in fact persons holding residence class visas under the Immigration Act 2009.
The definition of ‘permanent resident’ in the GCSB Act includes a person holding a residence class visa. Accordingly, the interceptions in relation to those persons were not authorised by the GCSB Act.

ENDS

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