It could be a set of developments that pushes US authorities into a rather interesting predicament. A New Zealand court has ordered the handing over of all evidence so that the defense could build their own case to fight extradition. Unfortunately, US authorities are now saying that the amount of data is too large to realistically give to the defense within the 30 day deadline. If all sides are telling the truth here, that pretty much means that the US authorities are screwed.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
The Megaupload case has no shortage of drama and these latest developments. At the end of last month, the BBC reported that a New Zealand judge has ordered the release of evidence being prepared to the defense:
US authorities have been ordered to hand over evidence against Megaupload’s founder and other employees of the file-sharing site.
The US wants to take charge of the men from New Zealand to put them on trial for alleged copyright infringement, money laundering, racketeering and other offences.
Defence lawyers want the information to help them challenge the extradition request.
The US had previously objected.
However, New Zealand District Court’s Judge David Harvey said local laws required extradition hearings to be “properly informed” adding that the case would be “one-sided” and merely an “administrative” affair were the material not to be shared.
This certainly goes along with my previous thinking that the defense, in many jurisdictions anyway, should have access to the evidence being levied against it so they are able to build their own case. The only times I’ve heard of justice systems based off of the British variation where evidence is not presented to the defense is related to terrorism cases (which is a controversy in and of itself). The MegaUpload case is certainly not related to terrorism. So, why the hold-up? Why can’t the US authorities hand over the evidence to the defense? It turns out, the volume of data is too large.
The size of Kim Dotcom’s Megaupload servers has made disclosing the evidence against him near impossible in the allotted time, New Zealand Crown lawyers have argued.
A District Court judge last week overruled the US Government and granted the internet millionaire the right to information gathered by the FBI in the copyright case against him.
The Crown has today argued against the order in the High Court at Auckland, saying it was “unrealistic” to do so in the 21 days allowed by the court.
Fergus Sinclair, for the Crown, said the servers Megaupload used were massive and would have to be disclosed as the FBI had copied them.
Megaupload had 18 servers with a company called Cogent but they were so large the FBI could copy only two of them, he said.
“It’s simply too big a job. They wouldn’t get a small way through it in that time.”
If what the crown has said is true (and, for their sake, I hope they are telling the truth in a court of law), that pretty much means that crown prosecutors are screwed. You have to hand over the evidence, but you can’t. Personally, I’m not sure what procedures are available in New Zealand justice in this instance, but I would imagine that there probably will be some fireworks in the coming weeks. I can’t imagine not complying with the judge would help the crown in any way. While I don’t know for sure if it applies in this case in New Zealand, but the term “contempt of court” comes to mind for me. That could go on top of other charges Kim Dotcom could throw at US authorities like libel (MegaUpload being called a “rogue” website or a website dedicated to infringement) and theft (theft of the servers). Again, I’m not a lawyer and this is not legal advice by any stretch of the imagination, but merely personal observations I have.
I also wonder if the choice now face by the crown is now either facing charges for botching the investigation this badly or drop the charges completely. The prospects right now seem to be pretty ugly for the crown right now.
Drew Wilson on Twitter: @icecube85 and Google+.
