MegaUpload founder Kim Dotcom has found himself in the legally surreal position of demanding that he be provided the evidence against him to build his own case. Shortly after, the FBI commented to the media that they are investigating child pornography on the servers. That’s only a small start of some of the details that has been happening lately in the MegaUpload case.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
To call the case against MegaUpload a mess would be an understatement. In our previous report last month, we detailed numerous elements of the MegaUpload case. At the time, one of many questions in the case was whether the US government even had the right to just waltz into New Zealand, raid the property of a resident, throw the resident into a jail cell (expecting him to be extradited in the process), take the evidence to a US court system and try that resident in the US. After watching the events unfold, many have been wondering whether or not the US ever even had a case against MegaUpload given the refusal to hand over evidence to the defense so the defense could build its case (which, in a Canadian court of law anyway, would be legally outrageous because the defense should have access to the evidence being used against them).
This issues of having access to evidence as well as sovereignty was touched on more recently as well during the extradition hearing. From CNET Australia:
Back in court, as Dotcom was tearing up, his lawyers seethed. Dotcom, who has denied being a pirate, was in a New Zealand courtroom on Wednesday seeking a judicial review of the search warrants served on him and Megaupload. His lawyers argued that New Zealand authorities illegally seized data that wasn’t relevant to the case. Dotcom wants some of his possessions returned, according to Ira Rothken, the US-based lawyer leading Dotcom’s worldwide defence.
But that’s only one part of the US government effort that has angered the Dotcom side. According to Rothken, when Dotcom’s lawyers asked authorities to give them a copy of the data taken from him, they learned that New Zealand officials had shipped the information to the US FBI for analysis.
Paul Davison, Dotcom’s head lawyer in New Zealand, told the media that he was assured by authorities that none of the data seized would leave the country without warning. Without the data, Dotcom can’t properly defend himself, his lawyers argue, and they feel betrayed.
“The court will determine whether the United States and New Zealand had the authorisation to remove data from New Zealand absent a court order,” Rothken told CNET. “This is a serious international issue, and we believe it requires proportional remedy …It seems as though the United States is trying to win on tactics rather than on merits.”
The issue of the defense being denied access to evidence being used against them was also covered on Ars Technica as well:
The US government is trying to “run out the clock” by denying Kim Dotcom’s legal team access to the materials it needs to prepare for key court appearances. So says Ira Rothken, a lawyer for the Megaupload founder.
Rothken also faulted the government for the lengthy delay in supplying Dotcom with a copy of his own data. The defense team still hasn’t gotten copies of Dotcom’s own hard drives more than 4 months after the raid. “They’re making an argument that they still haven’t made copies of the rest of the hard drives because it’s too burdensome to do it in New Zealand and they have to bring them back to the US,” he told us. Rothken called that “hard to believe.”
“They could spend hundreds of thousands of dollars on helicopters and raids,” he said, “but they can’t use the 800 number to Best Buy to buy the computer equipment they need to make mirror copies of hard drives.”
The contents of the data also apparently contained CCTV camera footage which allegedly showed the police using excessive force during the raid. From News24:
Kim Dotcom’s lawyer filed a complaint at the High Court in Auckland against “excessive police action” in the January arrest. The defendant is awaiting an August hearing on an extradition request to face trial, the New Zealand Herald reported.
Paul Davison said Dotcom denied the US FBI charges of copyright infringement and money laundering, and insisted his website was legitimate.
He said the seized computers contained CCTV footage of the raids at his rented mansion. Dotcom is seeking judicial review of search warrants used by police when they arrested him on behalf of the FBI.
Davison said the seized material included thousands of e-mails, private information and family home movies going back decades.
“This was just a household emptied out,” the lawyer said. “These are libraries of documents, the data storage… Do you take a whole library when you are looking for a book?”
Undeterred by the case going up in flames on the US governments side, the FBI took it upon themselves to reveal some of the evidence they are collecting. From Stuff:
United States law enforcement authorities have confirmed they are investigating images of child abuse unearthed from Kim Dotcom’s Megaupload servers.
The material was discovered during FBI examination of the contents of the internet millionaire’s cloud storage system, seized in the global takedown of the “Mega Conspiracy” that included police raids at Dotcom’s Auckland mansion in January.
Dotcom, 38, is currently on bail awaiting an extradition hearing. Authorities say he used Megaupload and its affiliated sites to knowingly make money from pirated movies and games, and have charged him with multiple copyright offences.
A spokesman from the United States Attorney’s Office for the Eastern District of Virginia, Peter Carr, said there was an ongoing investigation into the images of child pornography found on the servers but would make no further comment.
Experts say Dotcom is unlikely to be held accountable for the child pornography also uploaded to the Mega websites.
The laws covering objectionable material had broader “safe harbours” that ensured online service providers were not blamed for the actions of their users, said New Zealand internet lawyer Rick Shera.
“It’s absolutely impossible for a cloud service to scrutinise what’s on its servers.”
It’s quite a bizarre turn considering that this was suppose to be a case of copyright infringement. You almost get the impression that the US authorities are trying to throw as much mud into MegaUpload’s direction while covering up the tracks of a seemingly botched investigation; a sort of changing of the channel if you will.
Meanwhile, tensions are rising in the United States where angry customers are still demanding to have their own legal property returned. The EFF is still in court representing users who have had their possessions taken from them during the raids. From CNET:
The patience of Kyle Goodwin, a former MegaUpload user, has apparently run out.
The videographer, who stored clips of high school sports action at MegaUpload, filed a three-page motion today that asks a federal court in Virginia to figure out a way to return his clips to him.
Goodwin has waited for the company, the U.S. government, Hollywood film studios, and other interested parties to determine what to do with the data on MegaUpload’s servers, which were seized by the United States in January. The district court overseeing the case told everyone with a stake in MegaUpload’s data to find a solution amongst themselves, but talks have dragged on for weeks without any kind of resolution.
This case is such a huge mess of different stakeholders, international law, New Zealand law, US law, botched investigations and allegations, you’d almost need a diagram just to keep track of it all. In all of it, I think Kim Dotcom is on the winning side here in part because the US has done such a bad job on their case against him. I personally hope that shortly after this whole case is over, Kim litigates the blistering explative out of Hollywood and the FBI because the way the prosecution is handling the case, they certainly deserve it.
Drew Wilson on Twitter: @icecube85 and Google+.
