Megaupload to DOJ: Misleading Semantics Aside, You Told Us You Were Investigating Infringing Files, So We Preserved Them
from the these-things-are-important dept
The back and forth between the DOJ and Megaupload continues. As you may recall, a key piece of evidence against Megaupload was the fact that it "knew" about certain infringing content on the site after being informed about it - and that Megaupload left that content in place. However, when the warrant was finally unsealed (over objections from the DOJ), it revealed that the "reason" that Megaupload "knew" about this content was because the DOJ had reached out to Megaupload's hosting partner, Carpathia, and told them about this content, seeking information about it for the purposes of a criminal investigation (likely Ninjavideo). Carpathia made all of this clear to Megaupload, and Megaupload cooperated entirely, and did not delete the content for fear of deleting evidence in a criminal investigation after it had been made aware of it.Megaupload then pointed all of this out to the court, arguing that the DOJ misled the court in getting the warrant in the first place, since it didn't mention the specific circumstances for why Megaupload was aware of the content, but had kept it up. The DOJ's response, from earlier this week, was to argue that since the DOJ never contacted Megaupload directly, none of this matters.
Megaupload has wasted little time in hitting back hard, pointing out that (a) the DOJ was well aware that Carpathia had informed Megaupload of the investigation, (b) that, at the very least, Megaupload's actions in context show non-nefarious reasons for having left the content up (basically arguing the intent) and (c) that, no matter what, the DOJ needed to at least inform the court of these basic circumstances.
Third, the Government attempts to distance itself from what Megaupload was told about the 2010 warrant by emphasizing that it did not directly instruct Megaupload to preserve the allegedly infringing files. (Dkt. 155 at 3.) But it is well settled that a private party's actions are imputed to the Government when that party is enlisted by the Government and acts in accordance with the Government's instructions. Thus, courts confronting criminal searches and seizures have consistently found Fourth Amendment interests implicated where a private party acts as the Government's "instrument or agent." See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989); United States v. Richardson, 607 F.3d 357, 364 (4th Cir. 2010). As the Fourth Circuit has indicated, "the key factors bearing upon the question of whether a search by a private person constitutes a Government search are: '(1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation.'" ....The key point is that even if the government believed Megaupload still could have deleted the evidence that it had explicitly sought from Megaupload (which would be quite surprising), it at least had the duty to make it clear why Megaupload was aware of this content, as that has a pretty direct implication on Megaupload's reasons for keeping the content around.
Here, Carpathia's communications with Megaupload satisfy both prongs. The Government not only knew of Carpathia's actions but orchestrated them. Indeed, the Government's affidavit in support of the June 24, 2010 search warrant expressly requested that "Carpathia and its customer MegaUpload be permitted to view the warrant and Attachments A and B to the warrant to assist them in executing the warrant." ... Correspondingly, the Order sealing that warrant, which "found that revealing the material sought to be sealed would jeopardize an ongoing criminal investigation," authorized the Government to provide the warrant only to Carpathia, and authorized Carpathia to "provide a copy of the warrant with attachments and this sealing order to MegaUpload.".... In conveying the instructions to Megaupload, Carpathia noted that it had "attempted to convince the Government to work directly with Mega on this matter, but given the complex jurisdictional issues, they have been unwilling." .... It is equally clear that Carpathia's sole purpose in communicating with Megaupload on that date was to assist the Government in executing the June 24, 2010 warrant.
Even if the Government could somehow avoid responsibility for Carpathia's instructions and the Magistrate Court's sealing order, there would remain the undeniable fact that the Government failed to inform this Court of critical, exculpatory information about the circumstances under which Megaupload learned of the allegedly infringing files and subsequently cooperated with the Government's investigation. See United States v. Leon, 468 U.S. 897, 926 (1984) (material omissions that render search warrants misleading can be grounds for invalidating warrants);...Once again, it seems like the government simply rushed through the Megaupload case, ignoring many, many important details, and basing its case on the theory that if the entertainment industry hates Kim Dotcom so much, he must be all bad. And, if you're dealing with someone "all bad" apparently the DOJ seems to think it can take a bunch of shortcuts.
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Filed Under: doj, evidence
Companies: carpathia, megaupload, ninjavideo
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Seems to me like those cases where the predator tries to get a prey that is too big/strong/smart for it and it's now choking.
Maybe it was a good thing that the Govt went after such high profile target as Kim Dotcom has resources to fight back. Not infinite, yes but enough to put up a fight and cause severe damage to the farce that the DOJ is.
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I have never been more ashamed of being an American than the DOJ's behavior at the behest of the "Entertainment Industry."
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Yes, this sucks. But it pales in comparison with a whole host of evils our government has increasingly committed since 9/11.
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I am losing my confidence in the US Judicial Branch. They are letting the rights of the non-powerful be trampled. Yes three American citizens were executed! And the Judicial Branch appears to have no incentive (or mechanism? who has standing??) to reign the Executive Branch in for abuse of power; a simple, if nauseating, example of why I'm losing trust in the one branch of "my" government that is supposed to protect me from abuse by the rest.
It does not pale in comparison; it is a case study in how the balances designed into the US Constitution have become corrupted.
... more than I wanted to get into, but I used to hold the courts on a *very* high pedestal, but no longer.
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http://en.wikipedia.org/wiki/United_States_Department_of_Justice
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One can only hope that this "chokes to death" the career of every DOJ person involved in this farce.
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But I remind you: High Court / Low Court.
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Assets Seized
Must read: How the Feds Disable Criminal Defense
http://www.forbes.com/sites/harveysilverglate/2013/01/03/black-whitey-how-the-feds-disable-crimina l-defense/
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You will be extremely lucky to still be in existence by the end of this Century.
And if bad shit does happen it won't be our fault it will be your greedy ass fault and the fault of the Rich and the Corporations.
What will you boneheads do when money is just paper and so are all your investments.
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That being said, I wonder how much longer it's going to take for this country to fall apart.
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It is odd living in a nation run by a bunch of Forrest Gump wanna be's. If this was 10 years ago I would of asked if the DOJ was paid off by Kim Dotcom. Now I know it is just plain stupidity on the federal governments side.
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Seriously. Though how much do you think they would have actually gotten away with in a US court?
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The Trial of Kim Dotcom
But, all did not go as planned. Kim already had lawyers who would defend him and knew the details of his business - and knew that the case was a sham. The NZ judges took a closer look at the case than anyone expected and did not just send Kim off to the US. Kim started a new business! All not part of the plan.
"[T]he feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of 'due process of law,' particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense."
How the Feds Disable Criminal Defense:
http://www.forbes.com/sites/harveysilverglate/2013/01/03/black-whitey-how-the-feds-disable-crimina l-defense/
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Re: The Trial of Kim Dotcom
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Which part was the "sham" part? You haven't seen ANY of the millions of copyrighted files online at the company he owned? Anyone with eyeballs can see it.
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No, they can't, boy, since the DoJ had the site shut down and denied Dotcom access to it!
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Uh, pretty much everything related to the case is the "sham" part. I won't lie, I haven't a doubt in my mind that the guy is guilty, but the DoJ has put on it's try-hard pants for screwing it's case.
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What a joke
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Swartz.com
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Can't win for losing.
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Twisted
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She's probably waiting for someone to find an industrial-strength noose.
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FTFY.
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It's a pretty long list.
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I think that's a pretty charitable view. I find it more likely that the DOJ's swarm of highly trained lawyers purposely ignored details that didn't help their case.
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And they even don't seem to realize, that people have realized that the DOJ has just become some kind of collection-agency for the entertainment-industry (or less nicely said: the strong-arm men who enforce the extortion-schemes of the MAFIAA).
Do they suffer from some kind of distorted perception, where they don't even notice what people think of them? That they don't realize they're under close scrutiny, and that they can't just indulge in criminal behaviour for getting their targets convicted?
Very strange.
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On the other hand, considering the competence with which they are handling their current investigations (and by competence I mean the complete lack thereof) I doubt chasing real criminals with really deep pockets would be any more effective.
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I am actually getting sick of eating popcorn!
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For once, you've stated the truth.
Thank you for making Dotcom's case for him, boy!
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A smell seems to be wafting around
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