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

Thu, Jan 17th 2013 9:10am — Mike Masnick

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.'" ....

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.

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.

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

47 Comments

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Ninja (profile), 17 Jan 2013 @ 8:44am

I want those lawyers. That was bloody fast!!!

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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gorehound (profile), 17 Jan 2013 @ 9:21am

Fuck You USA Government and your damn DOJ !!!
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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Anonymous Coward, 17 Jan 2013 @ 9:21am

The US Goverment is quite the PR Company. Kim Dotcom is coming out of this never looking better. His image is vastly improved from when this whole case began.
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Anonymous Coward, 17 Jan 2013 @ 9:34am

"And, if you're dealing with someone "all bad" apparently the DOJ seems to think it can take a bunch of shortcuts."

Seriously. Though how much do you think they would have actually gotten away with in a US court?
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Ben (profile), 17 Jan 2013 @ 9:35am

Re:
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.
Except for the fact that they went after him at his house with a SWAT team and could very easily have killed him in the process ("He was 'resisting arrest' -- oops!")

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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SolkeshNaranek (profile), 17 Jan 2013 @ 9:36am

Re:
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.

One can only hope that this "chokes to death" the career of every DOJ person involved in this farce.
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Ninja (profile), 17 Jan 2013 @ 9:52am

Re: Re:
That.
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Anonymous Coward, 17 Jan 2013 @ 9:52am

Re:
Yeah, I had a pretty negative view of him when this started. Now I follow him on twitter.
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Ninja (profile), 17 Jan 2013 @ 9:52am

Re:
He'd have a biased and completely unfair trial. The MAFIAA would get to indicate judges and virtually all the rest in the case.
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weneedhelp (profile), 17 Jan 2013 @ 10:05am

What a joke
The DOJ is a complete joke.
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Anonymous Coward, 17 Jan 2013 @ 10:09am

what it shows even more so is just exactly the lengths the DoJ will go to to ensure the entertainment industries are happy. whoever it was that was in such a high position in the DoJ to be able to issue the orders that were followed needs exposing and punishing. there would be no hesitation in dishing out the maximum punishment possible to Kim and his associates, if they were guilty of anything, (still no charges issued, as far as i am aware) just like anyone else the entertainment industries go after. why should those involved in this be any different, just because they are members of the government or the joke called 'law' enforcement?
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DannyB (profile), 17 Jan 2013 @ 10:11am

Re: Re:
One can only hope.

But I remind you: High Court / Low Court.
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Hephaestus (profile), 17 Jan 2013 @ 10:29am

Re:
"Kim Dotcom is coming out of this never looking better. His image is vastly improved from when this whole case began."

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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Gregg, 17 Jan 2013 @ 10:31am

Swartz.com
From Swartz to dot.com, I can't believe what a farce and bully the US has become.
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Anonymous Coward, 17 Jan 2013 @ 10:52am

Re: Swartz.com
you notice this now??!!
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Kenneth Michaels, 17 Jan 2013 @ 11:07am

Assets Seized
You said, "as Kim Dotcom has resources to fight back." Well, no. That is why the Feds seized all his assets, they were hoping he would have no resources to fight back. He still only has limited resources and his US lawyers have not been paid a dime.

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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Aaron *Head* Moss (profile), 17 Jan 2013 @ 11:13am

And if they had deleted the files, then the DOJ would have added "Destroying evidence" to the charges and used that fact to claim Kim knew he was doing wrong....

Can't win for losing.
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Kenneth Michaels, 17 Jan 2013 @ 11:24am

The Trial of Kim Dotcom
The DOJ's plan was that this case would NEVER be tried in court. Without all his assets seized, sitting in US jail without Internet access, Kim Dotcom was supposed to have pleaded guilty for a lighter sentence. The DOJ would get its conviction, Megaupload would still be down (as a favor to the MPAA), and the details would be kept a secret.

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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Kenneth Michaels, 17 Jan 2013 @ 11:25am

Re: The Trial of Kim Dotcom
That should say, "with all his assets seized," not "without all his assets seized."
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AJBarnes, 17 Jan 2013 @ 11:31am

Twisted
So using the government's twisted logic, why didn't it shut down Carpathia? Carpathia knew there was infringing content on their servers. Go after Mega, why not also go after Carpathia? Without them, there would be no Mega...
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hegemon13, 17 Jan 2013 @ 11:35am

Re: Re:
Really? Never? Not at 800+ civilian "collateral" deaths in Pakistan? Not at the execution without due process of 3 American citizens and the establishment of a presidential kill list? Not at the horrifying conditions and circus trial for Bradley Manning?

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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Anonymous Coward, 17 Jan 2013 @ 12:03pm

Re: Re: Re:
..if you've been proud to be an American - you're naive. Unless you're one of the founding fathers you shouldn't be.
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silverscarcat (profile), 17 Jan 2013 @ 12:03pm

Re:
You think any American who knows what's going on and doesn't willfully stick their fingers in their ears and tries to ignore it likes what's going on?

That being said, I wonder how much longer it's going to take for this country to fall apart.
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silverscarcat (profile), 17 Jan 2013 @ 12:14pm

Re: Re: Swartz.com
Some people take longer than others. And it's shocking when you finally realize how badly your country has become.
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silverscarcat (profile), 17 Jan 2013 @ 12:16pm

Re: Twisted
Because then Kim Dotcom would still have all his money and resources and could have helped Carpathia out... Possibly.
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johnny canada, 17 Jan 2013 @ 12:25pm

When will Carmen Ortiz join this case as she now has time as her case load is down
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Anonymous Coward, 17 Jan 2013 @ 12:55pm

Re: Re: Re: Re:
So only dead people have the right to be proud to be American? As if no one has contributed to the betterment of this country since then? You don't have to claim the whole of something as the result of your effort to be proud of it. I've done what I can to make this a better country, why shouldn't I be proud of it? Of course others have done their best to muck it up, but that shouldn't spoil the good works of others.
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Timo, 17 Jan 2013 @ 1:03pm

Yes, this sucks. But it pales in comparison with a whole host of evils our government has increasingly committed since the establishment of our nation.

FTFY.
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Beech, 17 Jan 2013 @ 1:42pm

"Once again, it seems like the government simply rushed through the Megaupload case, ignoring many, many important details,"

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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Anonymous Coward, 17 Jan 2013 @ 2:33pm

Re:
Hell, just in the last forty years alone: attempted genocide, terrorism, bullying, refusals to deal with social problems.

It's a pretty long list.
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Seegras (profile), 17 Jan 2013 @ 2:49pm

The weird thing is, the DOJ does not seem to realize that they're just doing the bidding of the entertainment-industry.

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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Ben (profile), 17 Jan 2013 @ 3:09pm

Re: Re: Re:
I am quite upset about the heavy handedness of the US in other parts of the world; but that is far away and I'm generally a common American in that if it isn't in my own back yard I don't care (however, I actually do). The evil of the DOJ is that this is what they are doing to Americans (or, in the case of Kim Dotcom, "visitors") in our own court system. What the Executive or Legislative branch do I have little or no confidence in, but without trust in the Judicial branch of the US Government, all hope is lost.

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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Anonymous Coward, 17 Jan 2013 @ 3:45pm

Re: Re: Re: Re:
The DOJ isn't a part of the Judicial branch. It is an arm of the Executive.

http://en.wikipedia.org/wiki/United_States_Department_of_Justice
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Anonymous Coward, 17 Jan 2013 @ 4:05pm

Re:
" When will Carmen Ortiz join this case as she now has time as her case load is down?"

She's probably waiting for someone to find an industrial-strength noose.
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Allen (profile), 17 Jan 2013 @ 4:37pm

Re:
I'm sure they realize that. The problem is they dont see anything wrong with it.
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Loki, 17 Jan 2013 @ 5:00pm

You know, if the government spent even half the time actually investigating the financiers and wall street speculators who cause the meltdown of the economy four years ago, and throwing them in jail (like Iceland did), instead of chasing the likes of Kim Dotcom, Arron Swartz, Bradley Manning, and Richard O'Dwyer, and websites like Dajaz1 perhaps, just perhaps, the economy might be in a little better shape.

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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Anonymous Coward, 17 Jan 2013 @ 5:19pm

"Hey Megaupload, hold this for a second, okay? ... See!? They're holding something illegal!"
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Canadian, 17 Jan 2013 @ 5:46pm

Not only has the DOJ become laughing stock of the world police but they have made a "hero of the people" out of the least likely person...

I am actually getting sick of eating popcorn!
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Anonymous Coward, 17 Jan 2013 @ 9:33pm

How was the million owner of Megaupload suppose to know his site was loaded to the gills with millions of illegal, copyrighted files? He can't know everything. It's not his fault if he becomes a multimillionaire from distributing copyrighted files. How was he suppose to know that was illegal to do????
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Anonymous Coward, 17 Jan 2013 @ 9:37pm

Re: The Trial of Kim Dotcom
> the case against Dot Kim was a sham.

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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Anonymous Coward, 17 Jan 2013 @ 10:22pm

Re: Re: The Trial of Kim Dotcom
"Anyone with eyeballs can see it."

No, they can't, boy, since the DoJ had the site shut down and denied Dotcom access to it!
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Anonymous Coward, 17 Jan 2013 @ 10:25pm

Re:
"How was the million owner of Megaupload suppose to know his site was loaded to the gills with millions of illegal, copyrighted files? He can't know everything. It's not his fault if he becomes a multimillionaire from distributing copyrighted files. How was he suppose to know that was illegal to do????"

For once, you've stated the truth.
Thank you for making Dotcom's case for him, boy!
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That Anonymous Coward (profile), 17 Jan 2013 @ 11:55pm

What happened to all the people claiming this was an open and shut case?
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Ben (profile), 18 Jan 2013 @ 3:23am

Re: Re: Re: Re: Re:
I am quite aware that the DOJ is part of the Executive Branch. I am upset at the Judicial Branch for letting the DOJ get away with these baseless prosecutions; acting more as a facilitator than an actual check on the powers of the Executive. Part of that is that the Judicial Branch is not assertive -- a case has to be brought to it before it can rule, and even then not everyone can bring forth a case (it always requires standing) -- but the automatic deference to the Executive Branch on invocation of "State Secrets" is absurd when there have been many examples of those claims being lies.
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Anonymous Coward, 18 Jan 2013 @ 8:59am

Re: Re: The Trial of Kim Dotcom
>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.

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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anon, 18 Jan 2013 @ 10:05am

Re: Re:
Except that he was arrested here in New Zealand where resisting arrest is not grounds for shooting some one. The only time the police are authorized to use lethal force is when peoples lives are at stake, aka suspect has a weapon and is about to use it.
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Dave, 18 Jan 2013 @ 11:53am

A smell seems to be wafting around
This case gets stinkier by the day - minute, even!
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