The police have announced that they will be taking no action against the GCSB over the latter's unlawful interception of Kim Dotcom's communications. Sadly, I'm not surprised. But I am surprised by their "reasoning". Here's their excuse:
Subject to the issue of criminal intent, the elements of an offence in respect to section 216B of the Crimes Act 1961 were established in relation to the actions of the GCSB. As for the issue of criminal intent, it cannot be established that any GCSB staff had the necessary criminal intent to illegally intercept private communications in this case and GCSB staff cannot be criminally liable.
[Emphasis added]
This is simply bullshit. Section 216B makes it an offence to intentionally intercept a private communication by means of an interception device. The police have admitted that the other elements were established - that the communication was private, and an interception device was used. But for intent, they are basicly claiming that the GCSB did not mean to intercept those communications. The extensive paper trail [PDF] already revealed by the police in this case shows that to be a lie. The police asked GCSB to spy on Dotcom, and the GCSB agreed. That's your intent right there.
(See also Graeme Edgeler's original legal analysis here, which makes it clear that the relevant intent is intent to intercept a private communication, not "intent to break the law")
Once again the police show they will not hold the powerful to account. Which means that the only means of doing so is for Kim Dotcom to bring a private prosecution against the GCSB staff who invaded his privacy.
Meanwhile, the police's other letter to Russel Norman regarding the GCSB's other 85 cases makes it clear that they do not regarded metadata as a "private communication". Which pretty much blows all John Key's claims that his spy law protected us from spying out of the water.
