Kim Dotcom's Lawyer Says DOJ 'Blessed' Destruction Of Evidence In Megaupload Case
from the that-can't-be-good dept
Last week we wrote about the reports from Kim Dotcom that the main European hosting provider that Megaupload had used, Leaseweb, had deleted all of the data on the over 600 servers Megaupload had leased from the company with no warning. That's kicked off something of a he said / she said between the two sides concerning what communications and business offers were made, and on the timing of everything. It does seem clear that both Dotcom's lawyer and the EFF sent Leaseweb a notice to preserve the data, as it was a part of an ongoing criminal case. Leaseweb argues that it replied to these concerns and that it had no legal obligation to keep the data, but did so anyway for many months, before reprovisioning the servers. It also claims it gave Megaupload notice of these plans.There's some suggestion that Dotcom may sue Leaseweb over all of this, but a much more interesting point is made all the way at the end of Ars Technica's coverage of the story, in which Dotcom's lawyer, Ira Rothken, is quoted about the DOJ's role in all of this:
"We learned that the [United States Department of Justice] blessed the LeaseWeb data destruction and we will raise these issues at the appropriate time with the Federal Court in the US."Of course, that's the big issue here. If the DOJ blessed the destruction of evidence in a criminal case, that's going to look very, very bad for the DOJ, and make it a lot more difficult for them to have this case succeed. Of course, as we've discussed, almost from the very beginning, it has appeared that the DOJ wanted evidence destroyed in this case (that's from less than two weeks after the evidence was seized). It seems fairly incredible that this has remained the DOJ's position, since it seems like an issue that is almost certain to be raised in court. If the DOJ is so confident in their case, why would it support the destruction of evidence?
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: destruction of evidence, doj, evidence, ira rothken, kim dotcom
Companies: leaseweb, megaupload
Reader Comments
Subscribe: RSS
View by: Time | Thread
There's no case, they know it. Pesky due process. Too bad NZ doesn't have some Guantanamo where they could throw Dotcom and keep him there for years without a trial.
[ link to this | view in thread ]
Going back to this, eh? On unsupported word of a lawyer.
AND, as I said prior: "If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with." -- Of course you dolts take that out of context: the topic is that Dotcom is claiming EXCULPATORY evidence was destroyed, not whether DOJ can prove guilt.
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
If Mike supports copyright, why are the pirates here? They take him same as I do: PRO-PIRACY!
03:03:45[d-10-0]
[ link to this | view in thread ]
Why destroy evidence?
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
STILL stating that HE needs to prove his INNOCENCE?
STILL not passing that basic civics course, huh?
Dumbass.
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
even more to the point, why did it sit back and do nothing to prevent the destruction of the data? basic answer being that it knew from day one that it had no case and was totally reliant on the speed and ferocity of the raid and the name it has, DoJ, to get all it wanted, from the arrests, to the extradition, to the conviction. it never for one second considered there being any 'stand against it' and when it came, it started to do all the things it shouldn't have done to try to preserve it's image. considering the consequences there would have been against Dotcom had he done anything like the things that the DoJ have done from the beginning, the court should lock them all up and throw away the key! they role is in the name for Christ's sake! if this is the measure of a 'Department of Justice', it's not a mucher!!
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
Again, moron.
[ link to this | view in thread ]
Re:
We know the DoJ and their minion agencies are used to lying and violating any due process by now so there's no surprise here.
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
"AND, as I said prior: "If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with."
Exculpatory or not, he STILL doesn't have to prove INNOCENCE.
Dumbass.
[ link to this | view in thread ]
Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
My understanding is that servers were seized, data copied from them that was deemed by the USG to be sufficient for proceeding with a criminal prosecution, and that the matter from that point on was purely a private one between the server companies and KD.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
If there is a case against Dotcom then WHY is the prosecution causing delay after delay with appeal after appeal and causing the extradition hearing to be delayed time and time again. If the prosecution had such a case against Dotcom then they would not be causing delay after delay to the extradition hearing would they. Right?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
Sure they're free to claim anything, but if it's half as cut and dry as you make it out to be, it shouldn't be that hard to seize servers, show content was there, and give a reasonable suspicion that Dotcom knew at least some was there. If they did that, I would think that Dotcom would have been extradited. The real questions are: why haven't they done it and why hasn't he been extradited. Maybe your assumption that he's guilty is making an you look a little foolish?
"So now that Dotcom failed to make payments on storage"
His assets are frozen. He hasn't been able to pay because he can't access his money.
The evidence is part of a criminal investigation, which means the hosting company is required to keep that data (or submit it to the court/parties of said case).
"If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with."
Dotcom shouldn't be required to prove innocence, he is required to prevent the DOJ from proving guilt. This means anything from delay tactics to questioning the evidence against him, to forcing the DOJ to follow the due process of the law (see 5th Amendment).
"Dotcom is claiming EXCULPATORY evidence was destroyed, not whether DOJ can prove guilt."
Trying to find any sort of relevance to a point other than you're trying to say you're smarter than us so believe you... (you're not a DOJ puppet are you ootb?). Either way casts doubt on the DOJ and is bad. The DOJ is responsible to prove guilt and if something was destroyed that may proves innocence on their watch, that doesn't bode well for them as it casts reasonable doubt. If Dotcom can pose reasonable doubt, then the DOJ can't prove guilt. So where were you going again?
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Why destroy evidence?
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
Well, he turned me into a pirate!
A pirate?
[meekly after a long pause] ... I got better.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
This wouldn't work.
First, if exculpatory evidence ha been destroyed, how would he do this?
Second, Dotcom is very likely to face a show trial in the US, not one that actually reveals truth.
[ link to this | view in thread ]
Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
In America, that defense could be as simple as poking holes in the claims of the State, but given the nature of the case and that he might have to contend with courts in other countries, having that data vanish is the worst form of illegal tampering that the DoJ could do. If that is what they did.
Then there's the simple fact that he was planning to return the lost data to his customers if and when Mega ever got restarted. That's just a slap in the face of all MegaUpload users/fans.
Why did LeaseWeb (not a company known for great customer service in my experience) delete the files? Why would the DoJ support or even demand those files be eliminated?
Like getting to the center of a Tootsie Pop.. the world may never know.
[ link to this | view in thread ]
Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
A man accidentally purchases more than the maximum allowed quantity of a prescription pain-reliever and he goes through the mud accused of being a drug dealer. It got a bit of press, but the worst part is that the DA knew they had no case and had their case thrown out several times by smart judges.
They didn't stop until they were able to secure a conviction against a loving husband and father who used that medication to help him deal with constant pain from his disability. Naturally the conviction was overturned, but not until the man served a year in prison.
The DoJ knows that quashing evidence hurts the defendants since they cannot easily show the required "reasonable doubt" without it.
Welcome to America.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
Actually, no. While in practical terms it may be helpful to present a defense, presumption of innocence means that a defendant is not in fact obligated to do or say anything in his own defense, and does not have to "concede" if he doesn't. He does not have to call witnesses or present exculpatory evidence. He can simply argue that the prosecution failed to prove its case. (The argument may not be successful, but again, the burden to prove the case is entirely on the prosecution.)
Or, at least, that's how it's supposed to work.
[ link to this | view in thread ]
Re:
For your convenience, I have copied the sections of your data that I deemed sufficient for prosecution.
You're welcome.
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
> be proven wrong
Since when?
[ link to this | view in thread ]
Re:
The DOJ clearly said it was okay to destroy the evidence. If you don't see a problem with that, you have bigger issues to deal with.
My understanding is that servers were seized, data copied from them that was deemed by the USG to be sufficient for proceeding with a criminal prosecution, and that the matter from that point on was purely a private one between the server companies and KD.
That's about the biggest load of pure bullshit you've spewed in a long time. Yes, the USG cherry picked certain data to make their case, and then allowed the rest to be deleted, even if it contained exculpatory evidence. How could you not see a major problem with that?
As for the "purely a private matter" -- that's insane. First, we're talking *evidence in a criminal case*. That's not purely a private matter. Second, the very same DOJ who gave the "okay" on destroying the evidence ALSO froze ALL of Dotcom's assets meaning that the "purely a private matter" between one party who had both hands clasped behind his back by the DOJ. That makes the DOJ very much a party to this.
[ link to this | view in thread ]
Re:
What I have a hard time forgiving is that the DOJ is putting me in a position where I have to defend a douche like Dotcom.
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
Bolded for relevance.
While it's true that Dotcom did have access to some funds, the NZ court only gave him enough for living expenses while he's being dragged through what's amounted to a modern-day witch hunt. The rest of it is STILL frozen, so he couldn't use it to pay the rent on those servers to begin with.
Sure, he could've used some of the money provided to him by the court for the payments, but I figure Dotcom was assuming that Leaseweb would hold onto that 40% of MU's data while this whole thing got sorted out.
Oddly enough, this is exactly what MegaUpload did when asked (indirectly mind you) by the DOJ not to touch 38-39 copyrighted movies which had been uploaded to MegaUpload's Megavideo by the tv show/movies/documentaries streaming website NinjaVideo, and were used as part of the evidence against them by the prosecution.
That trial happened in late September of 2011 with most of NinjaVideo's staff pleading guilty to criminal copyright infringement (though apparently an active uploader for the group remains at large). Megaupload didn't touch those files due to the possibility of getting charged with tampering of evidence (one of the co-founders of NinjaVideo was sentenced sometime in February 2012, AFTER the MU takedown).
I can understand why Dotcom is so irritated. Why the hell does his business get shut down for following protocol (the sentencing for one of the co-founders of NinjaVideo occurred in February 2012, AFTER the MegaUpload takedown), and LeaseWeb gets a free pass to delete 40 PB of data that is possible "exculpatory evidence"? I'd be pissed too if something like that happened to me.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
That's all that needs to happen.
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
Re: Re:
I noted "to my knowledge". You appear to have information I do not. Might you provide a cite to a third party, non-hearsay source?
[ link to this | view in thread ]
Re: Re:
The destruction of data only works in favor of that goal, because regardless of the effects it has on the actual case, it's likely to seriously hurt his ability to attract customers. Whether he's proven right or wrong, guilty or not guilty, people are going to be a lot less willing to trust him with their data now for fear this might happen again.
[ link to this | view in thread ]
Re: Re: Re:
Do you not have a PACER account? I'm not going to pay to download the documents for you, which you know damn well make you look foolish.
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
If the DOJ is so confident in their case, why would it support the destruction of evidence?
You either work for DOJ or know someone who does and don't like someone? The DOJ will overcome all laws, constitutions and common sense to help you out! (A-Team theme song plays)
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
I remember reading about another case where the FBI continued to go after a guy even after the "child porn" on his computer turned out to 100% legal. It just starred a very young looking girl, who showed up to testify in the guy's defense.
[ link to this | view in thread ]
Re: Going back to this, eh? On unsupported word of a lawyer.
And as I said prior, I'm not sure if this statement is made out of ignorance, malice or both...
http://www.techdirt.com/articles/20130619/07515923527/leaseweb-deletes-megauploads-server s-without-warning-destroying-key-evidence.shtml#c992
How about a response this time. If you're so sure of your argument you have to cut-and-paste it, surely you can explain why a person who believes themselves to be innocent should massively disrupt their life voluntarily.
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
While it probably is not surprising to you because you do not practice law, it is surprising to me that the EFF would call for the preservation of data on the stated basis. Recall that the EFF's role was limited solely to trying to enable certain Megaupload "customers" access to data they had uploaded for storage on the site. Rights holders were not averse to such access if procedures were put in place to mitigate the retrieval of customer data uploaded in contravention of the holders rights.
Back to the DOJ, I have not the slightest doubt that if the DOJ was in any manner blessing/encouraging/etc. evidence, a hue and cry would have been raised throughout the entire legal community. Spoilation and/or destruction of evidence is a matter having serious consequences for both the outcome of a case and any attorneys involved. No hue and cry has been forthcoming, which should tell you that perhaps a bogus issue is being promoted for tactical and public relations reasons.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]
people destroy evidence, due to other with wrongful intentions towards one another.
that's why evidence get destroyed cause it always starts with jealousy greed and embarrassment. the nice guy whos innocent they usually end up in prison doing time for someone or someone and a grow with them set someone up to take the blam for the ill willed bad guy. i know ive seen it and going threw with it myself. some people just cannot seem to get that they maybe good at fooling people but just know this god knows and you i'll willed individuals wont get aways with things like that for long. one piece of advice "look in that mirror" ask yourself the one question that you dont want to here as you look at the reflection you so desparately hide from, and say this. "who am i trying to convince?" see how far you get before you start to feel that twisting and turning of the evil inside of you so much that you end up looking away from yourself with shame and see if you can look at yourself ever again... tell me how that all pans out for ya...
[ link to this | view in thread ]
Re: Re: Going back to this, eh? On unsupported word of a lawyer.
[ link to this | view in thread ]