Did the person who told Labour that John Key (allegedly) mentioned Kim Dotcom's name at the GCSB really break the law?

Barry Soper at Newstalk ZB has broken a story about the source of Labour's information that John Key (allegedly) talked about Kim Dotcom to staff at the Government Communication Security Bureau back in February of this year - well before he claims to have first become aware of the GCSB's role in investigating Dotcom. 

I have no idea whether or not Soper's information is true. All I'll say is that if it isn't true, there's a hell of a defamation suit waiting in the wings. And as I said, that's all I'll say.

However, Soper's story has lead a certain blogger whose name need not be mentioned and whose site deserves no link to claim that this leak exposes the person responsible to potential criminal sanction under the Government Communications Security Bureau Act 2003:

11: Prohibition on unauthorised disclosure of information

(1) A person who is or was an employee of the Bureau may not disclose or use any information gained by or conveyed to the person through the person’s connection with the Bureau except in the strict course of the person’s official duties or as authorised by the Minister.

(2) Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding $2,000 who contravenes subsection (1).

To which I say ... nonsense. If an employee of the GCSB telling people "John Key gave a lunchtime talk to us at work and in the course of it mentioned Kim Dotcom's name" is a breach of this section, then telling people "at work today Bob wore a blue tie" also would be, as would telling people "we don't have plunger coffee at work, we have instant." 

Because clearly the intent of this section isn't to prevent employees (current or former) from saying anything at all about their employment. Rather, it's intended to prevent such persons from talking about the secret stuff that they may come to learn through working at the Bureau, or that may prejudice the Bureau's ability to conduct its surveillance activities. Neither of which the disclosure that (1) the PM gave a talk to the staff at lunchtime, nor (2) in that talk he (allegedly) mentioned Kim Dotcom's name does. So while passing on information about what the Prime Minister (allegedly) said during lunch with them at the cafe may raise employment issues under the State Sector Act, it just isn't a criminal matter. 

But, of course, I may be wrong and the unnamed blogger may have improved his understanding of the law since the last time he tried putting his interpretation skills to the test.

Comments (24)

by mickysavage on October 12, 2012
mickysavage

Very cruel Andrew but legally faultless ...

by Cam Slater on October 13, 2012
Cam Slater

Hah...the blogger who shall not be named or linked to...I am the Voldemort of the NZ blogosphere...but seriously...how petulant...in fact churlish even.

by Ian MacKay on October 13, 2012
Ian MacKay

I would have thought that Mr Key's reason for talking to staff in their cafeteria was to get them to talk about his visit to all and sundry, especially if they talked about his big smile and ready wit.Votes to be had there lad.

Wonder if he will bring a police complaint that his cafeteria talk was private like the Banks/Key conversation was?

by Andrew Geddis on October 13, 2012
Andrew Geddis

Cam,

You do know what happens to Voldemort in the end, right? And how feared he was, and with what good reason.

And why on earth would you want to "be serious", even for a second?

by Cam Slater on October 13, 2012
Cam Slater

Andrew, it is a novel...fiction. i just think it is sute how you and a few others think that ny not using my name, my site, or my nickname that somehow I will be ignored...kind of like how in Harry Potter everyone thought that by not speaking of Voldemort that he wouldn't exist. The thing is I do exist, no matter how much you try to ignore that...you even wrote a post about what I wrote proving my existance...so by not linking and not mentioning me shows you up for the same mis-guided beliefs that "magicals" had about Voldemort. It is churlish, and ultimately futile, but hey...what ever rips your nightie.

I'm never serious...that is true. I am having too much fun watching serious people react. Perhaps I should have put the <sarc> tag around seriously so you would better understand the intonation with which I typed it. Life is far too short to constantly be serious.

by Ian MacKay on October 13, 2012
Ian MacKay

Cam what can anyone say about your state of mind? Not sure what you are trying to say  and as you are a professional blogger I thought you might have more clarity/credibility.

Do you really exist or are you a figment of your imagination?

by Andrew Geddis on October 13, 2012
Andrew Geddis

The only thing worse than being talked about is not being talked about, right Cam? 

by stuart munro on October 14, 2012
stuart munro

I have a funny feeling that GCSB restrictions on staff comments might not extend to breaking the law by operating within NZ or against NZ citizens. Lawbreaking does tend to invalidate the protective powers of red tape.

by Eric Dutton on October 14, 2012
Eric Dutton

But as the Teacups affair showed, if you annoy John Key, the consequences can be costly.  We still don't know the legalities of that one.  The police say an offence occurred but the court would not rule.

by Iain Butler on October 14, 2012
Iain Butler
Isn't anyone else slightly worried about the consequences of our SPIES being a bit loose with even fairly inconsequential work stories though? At best, the GCSB, with it's lack of public scrutiny through Parliament or the OIA, is choosing to engage with the media when it suits them to bolster it's own image, at the PM's expense. At worst, it suggests a certain lack of familiarity with the concept of secrecy. Whether he's right about the law, Whale Oil-damort is right to be critical of the source of this leak.
by Andrew Geddis on October 14, 2012
Andrew Geddis

Iain,

I did point out that:

So while passing on information about what the Prime Minister (allegedly) said during lunch with them at the cafe may raise employment issues under the State Sector Act ...

That said, some perspective is perhaps in order. The most the "leak" did was potentially embarrass the PM - which all state servants probably ought not to set out to do wheresoever they are employed. But I'm not convinced that the GCSB really requires some sort of awed silence to descend over it, such that anyone who says anything about any matter that occurs within its walls is somehow putting NZ's security at risk! Or, to put it another way, let's imagine John Key back in February mentioned Kim Dotcom's name while talking to (say) employees at the Tourism Board, with one of those employees later mentioning this fact to a Labour Party source. Would this be any different from a GCSB employee doing so?

Furthermore, the GCSB is "subject to public scrutiny through ... the OIA": see here. Sure, there often will be "conclusive reasons" under the OIA for not disclosing what it does in its operations ... but let's imagine that a tape of John Key giving his talk did exist. What reason would there be not to release it, if someone asked to see it?

by stuart munro on October 15, 2012
stuart munro

What reason ...

The international perception that NZ intelligence is intemperate, leaky, and run (sporadically) by a PM who never outgrew his adolescent enthusiasm for Bond movies tends to encourage rather than deter a predatory stance in our 'friends' and rivals...

But I guess that cat is well and truly out of the bag.

by Steven Price on October 15, 2012
Steven Price

Hmmm. A joke about Kim Dotcom is one thing. But a joke that somehow references GCSB spying on KimDotcom is another, surely. We don't know what he said. But if he did joke about Kim Dotcom, then I guess we have to wonder about the probabilities that the joke was just a random Kim Dotcom joke rather than a joke that played into the fact that the people he was addressing were spying on him.

Even if it's the latter, I guess there's an issue about whether Soper's source "disclosed" the information, which would again depend on exactly what the source said, and whether you can be said to disclose something that's (now) already in the public domain.

But if it was a joke about spying on him, then there's a much more interesting consequence: is it really plausible that John Key had registered the information about spying on Dotcom sufficiently to make a joke about it, but then didn't remember it afterwards?

by Ross on October 15, 2012
Ross

I wouldn't have thought that what goes on at the GCSB is all that secretive (depending on the context). Paul Neazor wrote a report into the activites of the GCSB re Dotcom, and the report was made public!

by Ross on October 15, 2012
Ross

Furthermore, the GCSB is "subject to public scrutiny through ... the OIA"

I would expect that it's also subject to the Public Records Act, so government agencies are required to create and maintain full and accurate records...

Alas, no notes were made of Key's meeting at GCSB on February 29. Why not?

 

 

by Andrew Geddis on October 15, 2012
Andrew Geddis

@Steven,

But what did the "disclosure" (if it was one) actually "disclose" (if it did so) ... that the GCSB was spying on Kim Dotcom (which everyone now knows happened - we've even got a report on it, as Ross points out), or that John Key knew the GCSB was spying on Dotcom (which is the likely inference to be drawn from his "joke" ... or at least, so Labour would have us believe). Even if a disclosure of the first fact might be a breach of s.11 (but obviously would never be prosecuted, given the already occured public disclosure of that fact), could the second fact?

I mean, could it really be unlawful to tell someone "that secret thing we were doing that everyone then found out about ... the PM knew full well what we were up to"?

by Steven Price on October 15, 2012
Steven Price

Didn't I say that?

My point was that this would be a bit different from discussing the coffee (and surely you're right that that can't be what the provision is aimed at), if you're in fact talking about spying, and perhaps what the PM had been told about spying. The defence there is that it wasn't really "disclosed" and not whether it's the type of information that's captured by the section. But perhaps I'm splitting hairs.

But I'm still more interested in the other point, though it's peripheral to your point. If you're joking about something, isn't it lodged into your brain in a way that makes it hard to forget?

by Andrew Geddis on October 15, 2012
Andrew Geddis

I don't know what you said. I find you pretty much unintelligible (insert appropriate emoticon indicating jocular tone here).

by Jane Beezle on October 15, 2012
Jane Beezle

@Andrew, @Steven

Boys, boys, boys.

Have you thought about a plain English course?

Studying it, that is.  Not teaching it.

Or perhaps something on the unintelligibility of posing legal "opinions" based on a string of hypotheticals so long that they resemble a fatty chain.

by Andrew Geddis on October 16, 2012
Andrew Geddis

@Jane,

If you can't understand it, don't try reading it. Then we can be happy, you can be happy, and no-one is hurt.

by william blake on October 16, 2012
william blake

@Jane ...'fatty chain' nice reference to .com's future. 

 

by Jane Beezle on October 16, 2012
Jane Beezle

Ouch.

It's obviously OK for you to call Steven Price's analysis "unintelligible".

But me calling you into question?  Well, your standard response appears to be: Jane, sweetie, you just don't understand.  That's the second time you've had to fall back on my low IQ.

Anyway, Andrew, get serious.  You are putting this dodgy legal analysis out there.  And not all your commenters are going to praise it as "legally faultless".

This one looks like Swiss cheese.

Your blog post equates a leak by an employee of the GCSB that the PM (as their responsible Minister) discussed a person who is being spied upon by that agency with ... what?

A leak that "We don't have plunger coffee, we have instant", or "at work today Bob wore a blue tie."

I for one can see that the first might be what you call the "secret stuff" that is potentially relevant to a prosecution under section 11, while the others clearly wouldn't.

In the most hypothetical of all possible worlds, that is ...

 

by Andrew Geddis on October 16, 2012
Andrew Geddis

Jane,

Steven is a personal friend of mine, with whom I made it clear I was sharing a joke. You I don't know, and your comment came across as patronising and mean spirited (hence my patronising and mean spirited response). So if you want to be treated respectfully and seriously, I suggest you consider you look at how you present yourself.

Furthermore, this is a blog on which I often discuss legal "hypotheticals" with all sorts of interested parties - see here, for instance. If you personally think that this is a waste of time/pointless activity, that's fine. But if you feel the need to keep telling me so in the comments section of my blog posts, don't be surprised to discover your commentating privileges disappear without further warning.

by Simon Connell on October 16, 2012
Simon Connell

I, for one, look forward to the GCSB's new "better work stories" recruitment campaign.

Post new comment

You must be logged in to post a comment.