IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2012-404-1923 UNDER THE Judicature Amendment Act 1972 IN THE MATTER OF An application for judicial review and application for order for interim relief pursuant to section 8 BETWEEN KIM DOTCOM First Plaintiff FINN BATATO Second Plaintiff MATHIAS ORTMANN Third Plaintiff BRAM VAN DER KOLK Fourth Plaintiff . . . AFFIDAVIT OF DISCLOSURE FOR THE THIRD DEFENDANT 20 December 2012 judicial Officer: Winkelmann] CROWN LAW TE TARI TUBE 0 TE KARAUNA PO Box 2858 WELLINGTON 6140 Tel: 04 4-72 1719 Fax: 04 473 3482 Contact Person: Sinclair Email. . ATTORNEY-GENERAL in respect of the New Zealand Police First Defendant THE DISTRICT COURT AT NORTH SHORE Second Defendant ATTORNEY-GENERAL in respect of the Government Communications Security Bureau Third Defendant of Wellington, public servant, swear: I am the Assistant Director, Production and Outreach, at the Government Communications Security Bureau (GCSB). I make this affidavit under an order for discovery by judgment of the High Court dated 5 December 2012, as elaborated by a minute dated 12 December 2012 (the discovery order). This affidavit addresses the orders at paragraphs [26] of the judgment. In order to fulfil those obligations, I have ensured a diligent search for all documents required to be discovered by the third defendant in terms of the discovery order, including 1oca1:ing all physical and electronic documents, including email communications. In response to paragraph of the 5 December 2012 judgment I can advise that GCSB first received the signed Request For Information from NZ Police (OF CANZ) on 16 December 2011. Consultation with the managers and staff involved confirms that it was received by hand on this date, in the afternoon. In response to paragraph of the 5 December 2012 judgment I can advise that there was no information-sharing agreement in place between GCSB and Immigration New Zealand during the period 1 September 2011-1 September 2012. In response to paragraph [26] of the 5 December 2012 judgment, further documentation held by GCSB in relation to the residency status of Mr Dotcom and Mr Van Der. Kolk is attached as follows: Attachment 15/ 02/ 11 Diary entry (redacted relevant to residency). 1 Reads: "kim.com 2IC Bram van der Kollt (Dutch resident in NZ) These 2 will be arrested regardless" Date Description Various Spreadsheet (redacted relevant to residency) 2 dates from 10. 1 5/ 12/ 11 16/12/11 Internal GCSB email 3 I 14/ 12/ 11 Internal GCSB email with Task Force DEBUT Draft Warrant attached 0 14/12/11 Internal GCSB email with Task Force Debut Briefing documents attached 19 12/ '.11 Internal GCSB email (part privileged) 4 I Op DEBUT RFI attached 19/12/'11 Internal GCSB email 5 I All known target details document attached Undated Selectors of Interest (redacted relevant to 6 residency) 17/ 02/ 12 Internal GCSB email 7 20 02/ 12 Internal GCSB email 8 22/ 02/ 12 Internal GCSB email 9 24/ 09 12 Internal GCSB email 10 Pfivileged matefial falling within this category of disclosure has been identified and withheld, as identified at I1. I can also advise that, to date, the information that GCSB has passed to Five Eyes partner agencies is limited to selector information provided by OFCANZ, which included selectors associated with Mr Dotcom and Mr van der Kolk. No information concerning Mr Dotcom or lVir van der Kolk which GCSB obtained as a result has to date been shared with the Five Eyes. The only information related to Operation DEBUT otherwise circulated by GCSB beyond the department or the Responsible Minister were the emails and End Product Reports supplied to OFCANZ. and attached to the affidavit of Detective Inspector Grant Wonnald, as well as the February debriefing with OF CANZ and DPMC. However, in September 2012 GCSB supplied infortnation to the Inspector General of Intelligence and Security to assist his investigation and Police have requested information as part of their criminal irivesiigation. On 19 December 2012 New Zealand Police viewed the material to be attached to the disclosure affidavit due on 21 December 2012, for the purpose of redacting Police material. GCSB has also shared information with Crown Law for the purpose of seeking legal advice in relation to the present proceeding. 11. To the best of my knowledge and belief, this affidavit is correct in all respects and carcies out my obligations under the discovery order. SWORN at Wellington this 20"' day of December 2012 before me: sonc?;mfih 1anE . . 4r traif at . 4. 1 squun sswuun FISMBE tauunn yuan sunn sunu ssunn sauna ramnu wznuun ranunn iunn s1smnm 511523 DECEM BER 2011 2011 DECEMBER urn"; . 3 a2o11 OCTOBERZO11 NOVEMBERZO11 3 14 0 2| 1 2: Ema$301.41 -- '.113 349-016 wei:1:SEl Thursday 3.00 LT umn 1.00 2.00 3.00 3 00 5.00 am 7.00 . aw s.umn ramnu Hwzsunn Lock for Classificritic-n Maricing in Message Body Sent: nay, 1 am. To: DL-UNIT: ICT Subject: Taskforce DEBUT briefing Expires: Sunday, 12 February 2012 12:00 a.m. Ciassiffcatfon: ZEALAND EYES ONLY Manager I GLJEJ issues Production (EC) 5.L.3 ISTN 359-5239 I Unclass (0) FW: FW: I3 Look for Classification Marking in Message Body Look for Classification Marking in Message Body E53 M1 From: Sent: December 2011 4:45 p.m. T02 i, Subject: 5 NTIAL RE Task Force Debul Briefing documents - Att- Attachments: 1 as I BUT. First briefing.pdf Classification: CONFIDENTIAL COMW Team Leader Transnational Issues (ICT) lassified (ISTN): 359 514'? Unclassified (External DDI): (041 ass 2 E-mail: From: GFCANE '5 '3 ofcanzintel.govt.nz| 14 Eleteamer 2011 1:50 p.m. oEunrgaa Sub: RE Task Force Debut Briefing documents - Attn Classification: CONFIDENTIAL COMINT From Det Grant CSB1 Please pass 1: Draft (incomplete) Search Warrant to follow. El BA -LE1 OFCANZ and Police National Headquarters Pb 04 Hmmi (notsacure) Task Force DEBUT, First briefing.pdf0FGANZ1__A This email was classified by OFCAN 1- Wednesday, 14 December 2011 1:50:14 -- Maillvlarshal 5 a Free aualusii .2-f at Look for Classification Marking in Message Body 1 Look for Classification Marking in Message Body can-has nu rum 1- Look for Classification Marking in Message Body 2 SECRET COIVIINT OFCAN ORGANISED FINANCIAL CRIME AGENCY l'u1'v.au Ki re ORGANISED AND FINANCIAL CRIME AGENCY NEW ZEALAND 16 December 2011 Director GCSB WELLINGTON EESHA Attention TF DEBUT: Request for GCSB support with regards to NZ Police enforcement of international warrants against Mega Media Group 1. OFCANZ requests GCSB's assistance pursuant to section of the GCSB Act 2003. which permits GCSB to assist OFCANZ with the provision of foreign intelligence on the understanding that this request contributes to a function of OFCANZ and supports of the prevention or detection of serious crime. 2. OFCANZ holds an interest in a group of persons known as the Mega Media Group, due to them being the subjects of international arrest warrants issued by the United States Federal Bureau of Investigation (FBI) in regards to large-scale copyright infringement and money laundering offences. FBI has requested NZ Police assistance in executing the arrest warrants against Mega Media's officers and seizing assets understood to be the proceeds of the organised criminal activity. 3. OFCANZ requests GCSB's assistance in gathering intelligence on Mega Media Group's executives' intentions to travel to New Zealand in mid to late January 2012. it New Zealand Police undertake operations to execute the arrest and seizure warrants, intelligence on the group' plans may assist NZ Police in conducting the operations in a safer and more efficient manner. 4. OFCANZ therefore requests that GCSB conduct analysis against persons associated with Mega Media Group - in particular its executive officers: Kim Schmitz (also known as Kim Dotcom and Kim Tim Jim Vestor), Finn Batato. Julius Etencko, Sven Echternach, Mathias Ortmann. Andrus Nomm. and Bram van der Kolk. in order to better inform OFCANZ and NZ Police operational planners as to the group's intentions. 4. The precedence of this request is PRIORITY. 5. Thank you for your assistance. If yu- 'e to discuss this further, please contact Detective Sergeant Nigel McMorran {flit} for Grant Wormald Detective Inspector Moleznvortlt Street. (till I. New Zealand 68 Look for Classification Marking in Message Body Sent: on av. ecember 2011 3:30 p.m. To: - SS-ICT Cc: .gov1.nz) Subject: DEBUT Targei details Update Attachments: ALL KNOWN TARGET C!assification:RE Eb. E58 33-?g_ To -2'r:s1A/ 6-6-35 1- Team FYI some additional Regards GCSHI Team Leacler Transnational Issues Classified (IsTrii: 359 51-17 Unclassified (External DDI): Classification: RESTRICTED HES Attached is the latest from Nigel McMorran. we OFCANZ 1- . . PI: . ALL KNOWN TARGET This email was classified by Monday, 19 December 2011 2:52:40 9&0 Look for Classification Marking in Message Body Lt:-ok 'Es:-r Classification Marking in Body Frorn: Sent: ecember 2011 9:57 a.m. To: - - Cc: Subject: RFI Attachments: OP DEBUT RFI.pdf Classification: TO NZL, AUS, GER, LISA Team Please enter Regards Team Leader Transnational Issues (ICT) Classified 359 514'? Unclassified External (04- E-mail: Look for Classification Marking in Message Body dig 1-. an-.tl: ch: .-.: ?7 TASK FORCE DEBUT I-CF -. mg 6 'E.ru.:n - mu, :e5;-I I-up - .1 .4 q. Selectors of Interest New - Ad..=HDLIT .1: . .9 Valli Eranoi, Hank van der Kt'? Ind' RA. van Nam. nun! vr - [act Inked nut In norm US dcmain] ten. ti.-um. .111 [not asked due to UK domain] art: [Hal tasked due :0 US darnain] unpurc [not and flu: In Ultrlumlnj [um um: due In Uxdumi-I] uni um and may IP: 69.57.152.12, The Tam, USA bramufi-Iunnum nanua-) nranus-cslm-nun>> Walla: Selectors of Interest --. c_ Kill. Fl 15.5 In '-L'lD'Jrll DETAIIS 5'6 thaw: Slim' cm of Human Lu Hun Aidan: Emu Hylli. Parbuur Ed. War-{ha} I-I11. Suites: 3603. 511. 3616, 36-01. fecnnanr Marin: 1:35 riahatnu: Valley Ind. Cna'uvl'l= Auckland, Nan Inland Gama Irene: nu. (Isuzu wasps at Maui}; Ga-many. it! uh: nann"nn Hung hug Hanna and no. manna (11 nmmu In an mane 'Em talcum'). custom: Support, of Kn-npu. Maren: 3? Ngamistrut, Oralnel, Auctaanc 3, 1056 W0 N1. Secondary' Adurassc PO. 30:, 23-110, Gaucestn Ru. Hong Kong I51 ?1911"! I5 24191515! 4-J1 I53 N13 +Jll5'J'1!!Il59 o1l6392l?1i-GEES I Page I of 2 Kim Dotcorn selectors -- all tasked GCSB Look for Cieseificatic-n Marl-ting in Message Body From: Sent 1'0: Co: Subject: Glaesificafiori: TOP T0 NZL, See the lists an! notes below on the selectors belonging to NZ-based persons that were entered intowjuring TF DEBUT. Note on traffic volume from these selecto rs. We intercepted rom the first two selectors on the list. Obviously only a small fraction of them we re used in the reports at were generated. We had no collection on Dotcom, and I'm advised we saw a little none of which was used in reporting). - --all task G-ESE . . we saw dozens None of these were used In re porting. No ntercept. Bram Ben l-to-lit selectors -- see note below Look for in Message Body 1 -- - for Classification in Mess age Body I only attempted to task these selectors on 22/ 12/ 2011 after My point is, the fact that these selectors appear iin draft format and do 'not appear in a list indicating that their tasking was approved means that these selectors were never actually tasked for collectio as also confirmed this). I 5053 GCSB However, we did report Bram as being the user after it was seen in pontact with Sven ch, whose selectors were tasked. The series of about 10 between Echternach and Bram orlthat pa Eticular day were the only time we saw content on Bra m's selectors. 9033 intercept. (unclass) ext: 8550 (secure ext: 5291 email ecsb. ovt.nz T) H1 Look for Czlaesifioation ltiiarlcing in Message Body Look for Classification Marking in Message Body Friday, 20 April 2012 12:00 am. Ciassfficetfon: SE ORE ZEALAND YES ONLY GEE HIJ Can you contact OFCANZ and ask them to tell us the exact residency status of DOTCOM, Monica DOTCOM and Bram van der KO LK what type of residency were they granted. Thanks fianager! 5! |s|sues Production (IC) GCSB1 5.L.3 I ISTN 359-5239 1 Unclass DDI: +64 (0) Least: fo E1 Ms.-rtairtg In Body 1 Look for Cl as-slficatl on Etericing in Message Body Cileesiitoaffcr :1 Gilli-tiltlooks like are taking things sen-:-usly the re-cent compile nee -2-rniesic-ns. L=ld you want to cont-:-ct_ about this, as I'm not sure if wantfneed this to be discussed at the E-eputy Director level? SCEJJ From: OFCANZ . - 52 3 . Subject: TF DEBUT Classification: SECIRH NZEO with respect to Up DEBUT, it is becoming apparent that there are some serious issues that might need to be addressed. We have some checks under way with Immigration to satisfy your request regarding residency status and dates for the DEBUT targets. The likelihood is that these checks will show that all three have NZ residency status. There are some important (but subsequently incorrect) assumptions and apprehensions from our end that I wish to spell out. 1. Some DFCANZ staff (including myself) assumed that citizenship/ nationality rather than residency is the test/defining criteria for ta rgeting/exemption, and/or made incorrect assumptions as to what actual status of particular individuals was based on intelligence received. 2 . Some OFCAN2 staff assumed that certain persons were indeed not being targeted and that the intelligence received was derived from external, non--resident targets. 3. with several points of contact at both ends, and not everyone viewing the written reports, these two misapprehensions were able to continue. The bottom line is that we accept that some errors of process and judgement may have occurred and where they have, we take responsibility for our part in those. I can assure you that our request for assistance was submitted in nothing other than good faith. We re main keen and available to assist in any way we can to manage potential issues or consequences and Deputy Director Ray Van Beynen has offered to come down and discuss the matter this afternoon or at your convenience. Regards, Look for Ciaasitioatien P?iarking in Me-esage Body 1 Look for Glassh"icatiot1 Mat*kIr1g In MessageThis email was classified by Wednesday, 22 February 2012 12:10:40 Luci: for Ctasasifieation in Message Bo-dy 95? 10 11 Pirivileged documents Date Description Privilege 19/ 12/ 11 Internal GCSB email (part privileged) Legal Advice '1 9/12/ 11 Compliance advice Legal Advice 20/ 02 1 2 Internal GCSB email Legal Advice I Draft file note re Op DEBUT attached 21 02/ 1 2 Intemal GCSB email Legal Advice I Amended draft file note re Op DEBUT attached 22/ 02/ 12 Internal GCSB email Legal Advice 0 Further amended draft file note re Op DEBUT attached 22/ 02/ 12 Internal GCSB email Legal Advice 0 Further amended draft file note re Op DEBUT attached 22 02 1 2 Intezmal GCSB email Legal Advice email 22 O2 12 Intemal GCSB email Legal Advice 24/ 02/ 12 Internal GCSB email Legal Advice 0 Final file note re OP DEBUT 27/ 02/ 12 Internal GCSB email Legal Advice 27 09 12 File note of discussion between OF CAN and Litigation GCSB From Communications with Crown Law Legal advice 14/ 08/ 12 and litigation From Documents prepared in response to the Ss 19(7), 19(9) 17/09 12 Inspector-General's investigation 24(3), Inspector- General of Intelligence and Security Act 1996