New Zealand Supreme Court Says Raid On Dotcom's Home Legal Enough To Get A Pass

Legal Issues

from the quasi-legal dept

Tue, Dec 23rd 2014 2:48pm — Mike Masnick

While a lower court had found that New Zealand police had violated the law in its poorly written warrant to raid Kim Dotcom's rented mansion, the Supreme Court has now decided that it was legal enough. They admit that while the warrant was probably more vague than the law says it should be, that was okay

"While the search warrants did not specify that the offences were against United States law, or that the offences were punishable by two or more years' imprisonment, this did not cause any significant prejudice to the appellants."

Justices John McGrath, William Young, Susan Glazebrook and Terence Arnold agreed that the warrants for the raid were not unreasonably vague and general.

"Undoubtedly they could have been drafted rather more precisely," they said in their written decision.

"We agree with the Court of Appeal that the appellants were reasonably able to understand what the warrants related to and that the police were adequately informed of what they should be looking for.

"Any issues relating to matters such as the way the search of the computers was conducted or the handling of irrelevant material should be addressed through other processes."

Basically, yeah, sure the warrants didn't technically comply, but everyone sorta understood what was going on, so it's okay. That seems like a fairly slippery slope of reasoning for allowing something that was illegal to proceed because people want it to proceed. The Chief Justice, Sian Elias, didn't agree with her colleagues, and was much more clear in the dissent:

"That conclusion is I think based on a mistaken view of what constitutes a miscarriage of justice in this context," she said in her part of the written decision.

"A search warrant properly issued would not have authorised the seizure of irrelevant material, at least not without setting up conditions to ensure secure and expeditious sorting under the supervision of the court.

"Where, as here, a search warrant was overbroad and no protective conditions were imposed, the relevant miscarriage of justice is complete."

Either way, this issue was always a bit of a sideshow. The fight over extradition to the US is the next big issue, followed by the main event (should it get that far) of an actual trial in the US. Of course, at a bigger level, we're now nearly three years since the US government completely shut down this company, and it's still not clear that it had any legal basis to do so.

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Filed Under: kim dotcom, new zealand, raid, supreme court
Companies: megaupload

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That One Guy (profile), 23 Dec 2014 @ 2:39pm

'Law', what's that?
So they admit that the warrant was vague, and easily open to interpretation, but ruled it legal anyway. The police in that country have got to love them.

"Yes, we've got a warrant here to search the premise for... hmm, looks like it just says 'Whatever looks like it might be involved in anything potentially illegal', so if you could open the door, me and the boys here will be going shopping. Stay out of our way and shut up, and we probably won't take too mu- ooh, is that a new tv? Oh yeah, that is definitely coming with us."
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Oblate (profile), 23 Dec 2014 @ 3:02pm

Um, what?
"Undoubtedly they could have been drafted rather more precisely,"

the justices said sheepishly...

Seriously, is there any precedent in NZ for police activity to be "close enough" to what's legal to be acceptable? Will this go the other way too? What about actions that are legal but "close enough" to illegal to be actionable? Seems like the type of ruling that will come back to haunt them.
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Anonymous Coward, 23 Dec 2014 @ 3:28pm

The US Gov't doesn't need a legal basis to start a war, execute its own citizens abroad, or to torture so why the hell should they need a legal basis to shut down a company they don't like?

America does whatever it wants and doesn't have to explain itself to anyone.
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Anonymous Coward, 23 Dec 2014 @ 3:35pm

"While the search warrants did not specify that the offences were against United States law, or that the offences were punishable by two or more years' imprisonment, this did not cause any significant prejudice to the appellants."

Still unanswered: Why should a non-US citizen operating outside the United States be bound by US law?
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Anonymous Coward, 23 Dec 2014 @ 3:40pm

Are there any honest courts left anywhere?
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Anonymous Coward, 23 Dec 2014 @ 3:45pm

If Kim Dotcom really thought he was innocent, he would have fought this at trial instead of spending the last three years and counting trying to delay that.
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That Anonymous Coward (profile), 23 Dec 2014 @ 3:52pm

Re:
Yes he should have entered the arena against an opponent to holds the purse strings to his defense, who is willing to steal evidence, violate sovereign nations laws, and violated the law in setting this scene in motion.
He can TOTALLY have a fair trial under these terms, and we should embrace that the law can be broken if some corporations claim the target is a very bad man.
(Pay no attention to that lawyer RUNNING from his job after starting his fiasco, and going to work for those corporations in a nice cushy job.)
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That One Guy (profile), 23 Dec 2014 @ 4:05pm

Re:
So say China accused you of violating one of their laws, and demanded you go over to defend yourself, I take it then you would have no problem hopping on a plane and heading right over then? How about if North Korea was the one bringing the charges?

After all, if you really believe in your innocence, surely you'd be eager to prove it in the court of another country, right?
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Anonymous Coward, 23 Dec 2014 @ 4:20pm

Re:
By crazy interpretations of american laws in order to get a "criminal" case. Those same standards could seize every single bank account in the world with exactly as much chance at getting justice.
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Anonymous Coward, 23 Dec 2014 @ 4:22pm

This has been a really solid year for corruption and overreach. gratz
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Anonymous Coward, 23 Dec 2014 @ 4:24pm

Re: Um, what?
"Seems like the type of ruling that will come back to haunt them."

One can only hope.
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Anonymous Coward, 23 Dec 2014 @ 4:26pm

What Kim Dotcom did was Technically legal.
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PRMan, 23 Dec 2014 @ 4:39pm

Re:
Because they were taking money from Americans. If you want to do business in a country you have to follow their laws.

Now, if Kim had blocked all US IPs and cards, then that would be a different question.

Still, I'd like to see how America would like it if Australia came in and shutdown Netflix because they haven't dealt with that pesky foreign signup problem.
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Anonymous Coward, 23 Dec 2014 @ 4:46pm

Re:
If the DOJ really thought they had a case, they would have actually tried to nab Doctom properly instead of fucking up at every turn and begging for concessions.
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Anonymous Coward, 23 Dec 2014 @ 5:22pm

Re:
Kim Dotcom offered to go to the USA to stand trial on the condition that he would be granted bail and access to confiscated funds to mount legal defence.

Apparently the DOJ rejected the offer because it hates to have to fight on a level playing field. Much easier to be able to bring the complete resources of the US Government against a couple foreign nationals with no access to funds to defence themselves.
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antidirt (profile), 23 Dec 2014 @ 5:23pm

Of course, at a bigger level, we're now nearly three years since the US government completely shut down this company, and it's still not clear that it had any legal basis to do so.

LOL! Huh?!?! So you think that Justin Bieber is a criminal for uploading covers to YouTube, but you can't understand how Dotcom & Co. can be criminal infringers for scraping all of the videos off of YouTube? I know, I know. You have no interest whatsoever in discussing the actual claims made by the government. Best just to pretend that your hero has done no wrong. It's sad, but I get that it's your thing.
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Anonymous Coward, 23 Dec 2014 @ 5:29pm

Re:
When was ripping YouTube videos a part of the claims made?
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Anonymous Anonymous Coward, 23 Dec 2014 @ 5:30pm

Re:
So, what kind of duck is he?
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Christopher (profile), 23 Dec 2014 @ 5:33pm

Re: Re:
With all due respect, that is not the case. That would be like saying that if a business in Japan took money from an American on vacation there, that they had to adhere to American laws.
It's bullshit, in the extreme extreme extreme.
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Christopher (profile), 23 Dec 2014 @ 5:34pm

Re:
Not just 'technically' legal. Plain and simple, by the laws on the books, legal.
No 'technically' about it.
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That One Guy (profile), 23 Dec 2014 @ 5:38pm

Re: Re:
And that, right there, tells you all you need to know about the case.

Kim offered to skip the whole extradition process if the DOJ did nothing more than guarantee a fair trial, and they refused. Given that, it's not hard to imagine the kind of 'trial' he would face if he stepped foot on US soil.
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CK20XX (profile), 23 Dec 2014 @ 5:48pm

Re:
The confusion of ideas here feels like watching a Uwe Boll film.
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antidirt (profile), 23 Dec 2014 @ 5:54pm

Re: Re:
When was ripping YouTube videos a part of the claims made?

It's all in the superseding indictment: http://www.justice.gov/usao/vae/victimwitness/mega_files/Certified%20Mega%20Superseding%20Indictment %20(2-16-2012).pdf or http://www.washingtonpost.com/wp-srv/business/documents/megaupload-indictment.pdf

63. It was further part of the Conspiracy that members of the Conspiracy reproduced copyrighted works directly from third-party websites, including from YouTube.com, to make them available for reproduction and distribution on Megavideo.com., and to create the false impression that Megavideo.com hosted primarily user generated content instead of copyright- infringing content.

***

e. For the 180 days up to and including October 31, 2007, members of the Conspiracy infringed copyrights, in the Eastern District of Virginia and elsewhere, by reproducing and distributing by electronic means at least ten copies and phonorecords of one or more copyrighted works from the Youtube.com platform which had a total retail value of more than $2,500 for purposes of commercial advantage and private financial gain,

***

k. In approximately April 2006, members of the Mega Conspiracy copied
videos directly from Youtube.com to make them available on Megavideo.com.

l. On or about April 10, 2006, VAN DER KOLK sent an e-mail to
ORTMANN asking “Do we have a server available to continue downloading of the Youtube’s vids? ... Kim just mentioned again that this has really priority.”

m. On or about April 10, 2006, VAN DER KOLK sent an e-mail to ORTMANN indicating “Hope [Youtube.com is] not implementing a fraud detection system now... * praying *”.

n. On or about April 10, 2006, ORTMANN sent an e-mail to VAN DER KOLK in reply to the “fraud detection” message indicating “Even if they did, the usefulness of their non-popular videos as a jumpstart for Megavideo is limited, in my opinion.”

o. On or about April 10, 2006, VAN DER KOLK sent an e-mail to ORTMANN in reply to the “jumpstart for Megavideo” message indicating that “Well we only have 30% of their videos yet.. In my opinion it's nice to have everything so we can descide and brainstorm later how we're going to benefit from it.”

***

w. On or about February 11, 2007, VAN DER KOLK sent an e-mail to ORTMANN indicating that “Kim really wants to copy Youtube one to one.”

qqqq. On or about January 27, 2011, ECHTERNACH forwarded an e-mail to VAN DER KOLK and BENCKO that an employee from the Megateam in the Philippines wrote that asked about access to Youtube. In that e-mail, the employee admits, “Even video resource sites such as Youtube which is our source for videos which we upload to Megavideo.”

***

97. For the 180 days up to and including October 31, 2007, in the Eastern District of
Virginia and elsewhere, the defendants,

KIM DOTCOM, MEGAUPLOAD LIMITED, VESTOR LIMITED,
FINN BATATO, JULIUS BENCKO, SVEN ECHTERNACH, MATHIAS ORTMANN, ANDRUS NOMM, and
BRAM VAN DER KOLK

did willfully, and for purposes of commercial advantage and private financial gain, infringe copyrights from the Youtube.com platform, by reproducing and distributing by electronic means, during a 180-day period, at least ten copies and phonorecords of one or more copyrighted works which had a total retail value of more than $2,500.
There are several other claims of direct criminal infringement by Dotcom & Co, but Mike will NEVER admit that these claims even exist. He'll defend his pirate heroes to the bitter end. Honesty be damned.
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antidirt (profile), 23 Dec 2014 @ 6:00pm

Re: Re:
The confusion of ideas here feels like watching a Uwe Boll film.

The point is that Mike pretends like little infractions on YouTube are going to put regular people behind bars, but then he pretends like the major allegations against Dotcom & Co. for scraping YouTube don't even exist. There's no consistency because Mike is not an honest person.
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Anonymous Coward, 23 Dec 2014 @ 6:07pm

So nobody gets punished.......again

Must be tuesday
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That One Guy (profile), 23 Dec 2014 @ 6:57pm

Re: Re: Re:
I've said it before, and I'll say it again, I just cannot take serious a legal filing that uses Conspiracy to describe the accused, and uses it every other sentence at that.

It's as though they've spent so much time creating lousy movies that the lingo has infected even the lawyers they hire.

Something I noticed while typing this out:

'...at least ten copies and phonorecords of one or more copyrighted works which had a total retail value of more than $2,500.

So ten copies, of one or more copyrighted works, and they're arguing that the retail worth of each copy was at least $250. Retail value, as in what someone would pay to purchase the whatever it was.

I'm quite curious as to what exactly they are accusing the MU people of having copied off of YT, that was worth at least $250 each(assuming ten items). No movie I know of is sold for that much, and likewise no album.

There are several other claims of direct criminal infringement by Dotcom & Co, but Mike will NEVER admit that these claims even exist. He'll defend his pirate heroes to the bitter end. Honesty be damned.

Now that is just all sorts of funny.

Here's the NZ spy agency illegally spying on Dotcom, getting caught, and then destroying evidence regarding their actions.

Here's the NZ High Court ordering the FBI and NZ police to return the hard drives they seized during the raid and shipped to the US.

Here's the DOJ claiming one thing in one court, and then something else in another court, after realizing that they lied the first time in order to claim that they could legally serve MU, despite the company not having a US address.

Here's MU pointing out that the 'evidence' of willful copyright infringement that the DOJ used in their warrant request against MU involved evidence that the DOJ had told MU to not delete.

So then, speaking of 'honesty', are you willing to admit that your precious heroes have screwed up left and right in their obsession to crush 'THE CONSPIRACY', or are you really going to claim that none of the above examples are illegal or even slightly dodgy?
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Anonymous Coward, 23 Dec 2014 @ 6:57pm

Re: Re: Re:
I believe that actually reading a court decision is a condition precedent to writing about the decision. Not sure my belief is shared by several of those who regularly author articles presented here, as exemplified by this article's omission of key facts noted by the court's majority.
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That One Guy (profile), 23 Dec 2014 @ 6:58pm

Re: Re: Re: Re:
And just what would those 'key facts' be?
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Anonymous Coward, 23 Dec 2014 @ 7:05pm

Re: Um, what?
I'm pretty sure everything in New Zealand is done sheepishly.
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Anonymous Coward, 23 Dec 2014 @ 7:05pm

Re: Re: Re: Re:
Don't expect the barnyard spambot posting from his wife's laptop (then logging out to spam on other articles) to respond to that.

They're the sort who thinks that setting a house on fire to get rid of a cockroach is reasonable, even after it's revealed that the cockroach doesn't actually exist.
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jupiterkansas (profile), 23 Dec 2014 @ 7:10pm

Re:
I don't care what Kim Dotcom has done. I care that our government follows the law and goes after him in a manner that's fair and legal. Otherwise what the government is doing is far, far worse than anything Kim Dotcom ever did.
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Anonymous Coward, 23 Dec 2014 @ 7:14pm

Re: Re: Re: Re: Re:
Ask the author of the article. The decision is available online. I would link to it if only the iPad I am using allowed me to highlight, copy and paste text. Until I return to my desktop, you can find the link if you are interested via Google.
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Anonymous Coward, 23 Dec 2014 @ 7:20pm

Re: Re: Re:
This is a pro-piracy, Google apologist site. Things like logic and facts are not welcomed here.
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Lawrence D’Oliveiro, 23 Dec 2014 @ 7:46pm

Yeah, It Seems ...
... pretty legal ...
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Anonymous Coward, 23 Dec 2014 @ 7:56pm

Re: Re: Re: Re: Re: Re:
Back at my desk. PDF files, one the decision in full and the other a summary of the decision, for the case Kim Dotcom et. al v. Her Majesty's Attorney General can be found at:

https://www.courtsofnz.govt.nz/front-page/cases/kim-dotcom-v-her-majesty2019s-attorney-general
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CK20XX (profile), 23 Dec 2014 @ 8:13pm

Re: Re: Re:
See, the reason you always lose these arguments as soon as you start to type is because... OK, let's assume, for arguments' sake, that Mike really is dishonest. What's the alternative? Listening to you? Yeah, you sure sound real honest yourself the way you come marching in thumping your bible, all determined to convert the lost souls here to the way of truth and light.
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That One Guy (profile), 23 Dec 2014 @ 8:43pm

Re: Re: Re: Re: Re: Re: Re:
Thanks for the link, but that document is 80 pages long, do you have any particular parts you'd like to point out? Any specific 'key facts' that you believe are relevant here? Because as the one making the claims, that kinda falls on your shoulders.

Reading through a bit, one part stuck out to me, rather contradicting the idea that the warrant was acceptable, despite being vague, under the idea that none of it qualified as a 'miscarriage of justice'.

As it has transpired, the search in the present case obtained something like 150 terabytes of data, accessed through more than 135 computers and electronic devices seized in reliance on the terms of the warrant. It is now acknowledged that a substantial amount of this data, perhaps as much as 40 per cent, was irrelevant to the offences charged. Some of it was personal and private. A direction by the Solicitor-General that any items seized were to remain in the custody and control of the Commissioner of Police until further direction, did not prevent the earlier removal of a number of cloned hard drives to the United States (an issue in additional proceedings not presently before the Court).

So starting from the top, large quantities of what was seized was of a personal nature, and due to the vagueness of the warrant, there were no rules put in place that would prohibit people from poking around in that personal data.

The Solicitor-General specifically stated that all the items, and therefor the contents one would assume, were to remain in the custody of the Commissioner of Police, yet this didn't stop the US from making off with multiple cloned HD's(and how exactly they came into possession of the cloned HD's is a question that really needs answering) of what was seized.(HD's which they were, by the by, ordered to return, destroying any copies they may have made. No idea if they ever complied, though it would surprise me if they did).

I'm not even 5 pages in, and the 'no miscarriage of justice' argument is already looking shaky. Personal and private information was seized, with nothing keeping it from being looked over, and illegal copies were made of said data and taken out of the country.

They seem to just brush these problems aside by claiming that the problems caused by the vagueness of the warrant can be 'addressed through other processes', as though the problematic warrant, and the problems resulting from it, are completely disconnected, but I'm not buying it. One lead pretty directly to the other.
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RD, 23 Dec 2014 @ 9:22pm

Re: Re: Re:
"There's no consistency because Mike is not an honest person."

It's not so much that Mike is dishonest (he's not) than it is that you spend your entire waking existence trying to "catch" him at it. You get nowhere, and rather than admit you are trying to prove your false assumption, you use it as fuel and point your finger and go "see! see! proof!!" as if that is any proof at all.
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Anonymous Coward, 23 Dec 2014 @ 9:41pm

Re: Re: Re: Re:
I believe that actually reading an article is a condition precedent to writing about it.
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Anonymous Coward, 23 Dec 2014 @ 9:54pm

Re: Re: Re: Re: Re: Re: Re: Re:
The summary presents what I believe is a fair summation of the court's opinion, and it is only about 3 pages long and written in non-legalese.. One point it highlights is that information missing from the warrants was contained in other documents presented contemporaneously with the warrants to the defendant.
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techflaws (profile), 23 Dec 2014 @ 10:12pm

Re:
Because as we all know from Manning et al he'll receive a fair trial, right?
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techflaws (profile), 23 Dec 2014 @ 10:18pm

Re:
It's sad, but I get that it's your thing.

Says the guy whose thing it is to lie, contort and be a clueless jackass all the time. Impressive.

*report*
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techflaws (profile), 23 Dec 2014 @ 10:21pm

Re: Re: Re:
There's no consistency because Mike is not an honest person.

Says the guy LYING about Mike's statements. Oh, the irony.
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techflaws (profile), 23 Dec 2014 @ 10:23pm

Re: Re: Re: Re:
Especially not in anonymous clowns like you. No surprise there.
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Anonymous Coward, 23 Dec 2014 @ 10:34pm

Re: Re: Re: Re:
Log back in, asshole.
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That One Guy (profile), 23 Dec 2014 @ 10:37pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Yeah, not really buying that argument. Two incomplete warrants does not a whole warrant make.

Put another way, say a warrant requires A, B, and C to be considered 'complete', and therefor legal. They are basically arguing that no, that's not true, a warrant can still be perfectly legal, even if it only includes A and C, as long as a separate document includes B.

If you accept that argument to be true, then the law that requires a warrant to include A, B, and C has effectively been revoked. Now you can get a warrant that includes only some of those, as long as you get additional documents elsewhere/elsewhen to 'fill in the blanks'.

They're essentially arguing that it's perfectly fine for a judge to issue a warrant without the legally required details, and that just does not strike me as a good thing.
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Anonymous Coward, 24 Dec 2014 @ 6:19am

translation "we got paid off to ignore the laws in this case"
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Anonymous Coward, 24 Dec 2014 @ 6:21am

Re:
because the US rules by intimidating, threatening and killing anyone that refuses to do what they want.

Until a country fights back, this will keep happening. I am against war but I severely dislike how the US only attacks countries that cannot fight back as that causes war
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Anonymous Coward, 24 Dec 2014 @ 7:26am

Re: Re: Re:
The US refuses to negotiate with terrorists.
...er...
The US refuses to negotiate with criminal fugitives.
...er...
The US refuses to negotiate with secondary copyright infringers.
...er...
The US refuses to recognize it got hoodwinked into playing the bad guys in a poorly written Hollywood script.
...yeah, that's right, you heard us.
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DP, 24 Dec 2014 @ 10:45am

Re:
Twaddle, as usual, from some troll or the other. Don't these stupid and misguided twits realise that if all this apparently illegal shenanigans by governments is allowed to carry on (regardless of whether you think Dotcom is actually guilty or whether you like the guy or not) then it opens the door to all sorts of oppressive laws to ride rough-shod over a little thing called due process. You know - innocent unless found guilty and all that, which you may have just heard of and registered in that obviously wooly and befuddled tiny brain you possess. Do you want to end up like China or North Korea? I despair.
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Anonymous Coward, 24 Dec 2014 @ 11:20am

Re:
Assumption...the person making this comment is not at all familiar with civil and criminal law and with judicial proceedings at the trial and appellate levels.
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Uriel-238 (profile), 24 Dec 2014 @ 11:28am

Creative adjudication has a long tail.
We're still paying for the tax evasion charges against Capone.
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Anonymous Coward, 24 Dec 2014 @ 11:29am

Re: Re:
Would you be so kind as to articulate with some specificity what acts undertaken by US reps in this matter are believed to be illegal and why this is so? For example, what acts are believed to be a violation of due process and why do they violate due process as a matter of law?
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That One Guy (profile), 24 Dec 2014 @ 4:07pm

Re: Re: Re:
Taking evidence out of the country in direct violation of the orders of the NZ Attorney General.

Destruction of evidence.

Tied to the above, the destruction of MU without ever having a ruling of 'Guilty'(punishment before trial).

Perjury, lying to a court about the legality of serving MU(even they knew they lied, as they went in afterwards trying to change the law to retroactively make their actions legal).

Greatly misleading, if not outright lying, about the evidence used to get the warrant to seize the MU servers, by claiming that evidence linked to another case, and preserved by MU due to it's status as such, was in fact evidence of willful infringement on MU's part.

If I really cared to, I could probably dig through and find more, but those are the ones that come to mind offhand.
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Anonymous Coward, 24 Dec 2014 @ 6:41pm

Taking evidence out of the country in direct violation of the orders of the NZ Attorney General.

??? I do not recall any such orders having been issued. The NZ courts did discuss the propriety of the NZ authorities turning over some info to the US authorities, but that discussion did not relate to any actions undertaken by the US authorities.

Destruction of evidence.

??? No evidence to my knowledge has been destroyed by US authorities. The company on whose servers MU files were hosted wanted to scrub the servers now that they were no longer being paid rent for their use so that they could be used for other purposes by paying customers, but that was a private company and not US authorities.

the destruction of MU without ever having a ruling of 'Guilty'(punishment before trial).

??? IOW, you are upset that one charged with racketeering was unable to continue engaging in such activities until a trial was held and guilt adjudged, even though a trial was a long way into the future since the person charged fled to NZ, refused to waive extradition, and has been fighting a thus far losing battle to avoid extradition to the US.

Perjury, lying to a court about the legality of serving MU(even they knew they lied, as they went in afterwards trying to change the law to retroactively make their actions legal).

I do not recall the details because this issue involves a very technical point of law, but there was as I recall a question state law relating to service of process, and it was argued by the US authorities that service was proper under VA law given that MU never established an office in the state as I believe state law required it to do. IOW, alternate means were available for effectuating service and US authorities availed themselves of one such means. How this can even remotely be viewed as perjury eludes me.

As for the last substantive point, it is noteworthy that the warrant has not been voided by a court (perhaps if KD ever shows up in a US court it will be challenged during pre-trial proceedings). Having dealt with many warrants over the years, this particular one was unremarkable and about as commonplace as they come. The only ones who have argued about being misleading/falsity appear to be ones who are inclined to go to KD/MU's defense no matter what.

There is nothing nefarious being pursued by US authorities with regard to KD. He is charged with a series of serious crimes, and US authorities are pursuing him to appear in court to answer to those charges. He will get his day in court and a fair trial, but his actions to date clearly reflect that he has no desire to ever see the inside of a US courtroom, and is leaving no stone unturned fighting extradition from NZ to the US.
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techflaws (profile), 24 Dec 2014 @ 9:46pm

Re:
He will get his day in court and a fair trial

Like Manning?
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Anonymous Coward, 24 Dec 2014 @ 9:49pm

Re: Um, what?
> Seems like the type of ruling that will come back to haunt them.

The Ghost of Justice Past?
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That One Guy (profile), 24 Dec 2014 @ 9:58pm

Re:
First of all, please use the 'Reply to this' function, it makes conversations a lot easier to keep track. One commentor who doesn't know how to use that feature is bad enough, we don't need more.

Starting from the top then...

I do not recall any such orders having been issued. The NZ courts did discuss the propriety of the NZ authorities turning over some info to the US authorities, but that discussion did not relate to any actions undertaken by the US authorities.

So I can only guess that even after directing me to it, you yourself didn't read the press summary regarding the ruling, that or you somehow missed the following:

'A direction by the Solicitor-General that any items seized were to remain in the custody and control of the Commissioner of Police until further direction, did not prevent the earlier removal of a number of cloned hard drives to the United States (an issue in additional proceedings not presently before the Court).'

So either the official summary regarding the case is wrong, and there was nothing stopping the US from making off with cloned HD's of what was taken, or you are, when you claim that there was no reason the US couldn't do so.

Which would you prefer?

No evidence to my knowledge has been destroyed by US authorities. The company on whose servers MU files were hosted wanted to scrub the servers now that they were no longer being paid rent for their use so that they could be used for other purposes by paying customers, but that was a private company and not US authorities.

Try the servers that contained MU data, the very same servers that the DOJ rooted through for their evidence, before saying that there was nothing wrong with those servers being wiped. Only allowing one side access to the evidence is not even close to just or fair.

IOW, you are upset that one charged with racketeering was unable to continue engaging in such activities until a trial was held and guilt adjudged, even though a trial was a long way into the future since the person charged fled to NZ, refused to waive extradition, and has been fighting a thus far losing battle to avoid extradition to the US.

https://yourlogicalfallacyis.com/appeal-to-emotion

I don't care what he was accused of, it still doesn't justify destroying his business before he even stepped one foot into a court. The DOJ seized the servers, copied what data they wanted from them, and then refused to allow Dotcom to buy them or pay for their maintenance, all but guaranteeing that the servers, and therefor the business that required them, would be destroyed no matter how the theoretical case eventually ruled.

That's punishment before trial, no two ways about it.

As for 'fled to NZ', he lives there, he didn't 'flee' anything.

'Refused to waive extradition' was covered above, he actually did offer to do so if the DOJ guaranteed a fair trial. They refused, making it abundantly clear that they have no interest in giving him a fair trial.

Also, I've seen that argument thrown out numerous times, as though refusing to just willingly put his head into the noose is some indication of 'guilt', when really all it is is proof that his brain is working.

He would have to be incredibly stupid to put himself at the 'mercy' of a government agency that doesn't care how many laws it has to bend or break as long as they 'Take down The Mega Conspiracy!'(seriously, that line never gets old, and I still can't believe they use it to describe MU in legal documents).

'Thus far losing battle', yeah, that's why he's still in NZ right? As the DOJ does everything they possibly can to con the judges there into buying that they have no need to prove they have any sort of valid case against Dotcom, despite that being a requirement for extradition. Nope, just 'hand him over, we promise he'll get a fair trial'.

I do not recall the details because this issue involves a very technical point of law, but there was as I recall a question state law relating to service of process, and it was argued by the US authorities that service was proper under VA law given that MU never established an office in the state as I believe state law required it to do. IOW, alternate means were available for effectuating service and US authorities availed themselves of one such means. How this can even remotely be viewed as perjury eludes me.

I linked to the article in question above, but here it is again, along with the relevant part from the legal filing discussed in that article:

'The Government’s letter is directly relevant to the Court’s consideration of Megaupload’s pending motion to dismiss without prejudice, as it contradicts the Government’s repeated contention that it can validly serve Megaupload—a wholly foreign entity that has never had an office in the United States—without regard for Rule 4’s mailing requirement. To the contrary, the Government explicitly acknowledges in the letter that it has a “duty” under the current Rule to mail a copy of the summons to a corporate defendant’s last known address within the district or to its principal place of business elsewhere in the United States. (See Exhibit 1 at 2.) Moreover, by seeking to have the mailing requirement eliminated, the Government implicitly admits it cannot validly serve Megaupload consistent with Rule 4 as currently written.'

So the government claimed, multiple times, that they could validly serve MU, despite the law saying otherwise. They even admit, in a roundabout fashion, that they know their claims are untrue, by attempting to have the part of the law that's getting in the way of their actions removed.

I don't know about you, but if someone claimed that their actions were legal, and then afterwards tried to get the law changed to make their actions legal, that certainly sounds like a lie to me, an admission that they knew, despite their claims to the contrary, that what they were doing was not in fact legal.

As for the last substantive point, it is noteworthy that the warrant has not been voided by a court (perhaps if KD ever shows up in a US court it will be challenged during pre-trial proceedings).

As I noted above, their defense of the warrant doesn't seem that reasonable, as they are essentially revoking or re-writing the law with regards to what it takes to get a warrant.

He will get his day in court and a fair trial, but his actions to date clearly reflect that he has no desire to ever see the inside of a US courtroom, and is leaving no stone unturned fighting extradition from NZ to the US.

Yeah, how dare he refuse to bow to the demands of the US, the nerve of the guy! /s

In his shoes, I wouldn't care to be extradited either. The DOJ has taken evidence out of the country contrary to NZ orders, had the NZ spy agency illegally spy on him, conducted a massive raid on his house as though he was some drug kingpin with dozens of armed guards, destroyed his business before the trial, refused to provide any evidence to the NZ courts showing that the DOJ has even a sliver of a case against him, despite the fact that doing so could have resulted in him being extradited years ago(if they actually had any evidence), mislead a judge by presenting bogus evidence in order to get a warrant to seize the MU servers...

I could go on I'm sure, but the point is, everything the DOJ has done to date absolutely screams that he would not get a fair trial, so of course he's less than eager to be dragged to the US to face whatever mockery of 'justice' they can throw together for him.
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That One Guy (profile), 24 Dec 2014 @ 10:01pm

Re: Re:
...

I spend who knows how long typing out a huge response, and you manage it in two words.

Congrats, now if you'll excuse me, I'll be banging my head against a wall for a bit.
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Anonymous Coward, 25 Dec 2014 @ 6:23am

Re: Re:
Do you have even a clue how military trials work and any familiarity with the UCMJ? Your comments literally scream "I am clueless but refuse to let that stop me from making uninformed pronouncements that are without any merit whatsoever!" Of course, in this regard you are hardly unique. Many others expressed umbrage out of ignorance.
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Anonymous Coward, 25 Dec 2014 @ 7:23am

Re: Re: Re:
Something just got screwed up. What appears is just the first paragraph of a point by point reply. What happened to the rest is known only to God.

Suffice it to say that you are misinformed to a significant degree, and the reason for this seems to be you are relying on third party articles, rather than reading, as I have, the actual court documents that so many are trying their best to spin to cast KD in a sympathetic light.

Final note. KD from Germany. He moved to Thailand when the German authorities started investigating him. He moved to Hong Kong when the Thai authorities started investigating him. He moved to NZ when the Hong Kong authorities started investigating him. See a pattern here? BTW, there are fears that if NZ decides to extradite him to the US that he will once more pack his bags and move to another country just a step ahead of the law. In the meantime he remains out on bail in NZ and by all appearances and actions is nowhere even close to being the destitute individual his legal and PR team would have you believe. Quite the opposite.
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RonKaminsky (profile), 25 Dec 2014 @ 9:18am

Re: Re: Um, what?
The Ghost of Injustice Past, I rather think...
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techflaws (profile), 25 Dec 2014 @ 9:59pm

Re: Re: Re:
You don't need to be a lawyer to realize that even under tougher standards Manning was treated in no way fairly (no matter how superior you think your knowledge is).
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techflaws (profile), 25 Dec 2014 @ 10:04pm

Re: Re: Re: Re:
KD is a douche, what else is new? And since he tried to escape prosecution, whatever bad is being said about him is automatically true. I mean, obviously!

If his actions were so clear-cut as the US pretends, this overwhelming evidence would have led to his arrest and extradition already.
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That One Guy (profile), 26 Dec 2014 @ 2:04pm

Re: Re: Re: Re: Re:
Probably because, for some funny reason, the DOJ doesn't want to present any of that 'overwhelming evidence' before the NZ court handling the extradition case, something that would have sped things up massively, one way or the other.

Pure coincidence though, I'm sure it has nothing to do with the fact that even they know they don't have a case. /s
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Uriel-238 (profile), 26 Dec 2014 @ 3:34pm

The revisionism on this very thread is disturbing
I remember Dotcom's home being raided on the day of the SOPA blackout, and following the story ever since here on TechDirt. It's one of the stories that led me to become a regular

And so I'm not following from where this new sentiment of Dotcom is a crook and the US DoJ was right to bust in his home comes from. And yes, it was ICE serving as personal goons for the MPAA and big media interests. In the sharing community, there were rumors that the new music distrigution program in MEGA was a significant threat to the old recording gatekeepers.

And the hit happened and data hosts were seized and data was lost and the WHOLE NOTION OF CYBERLOCKERS AS A SAFE PLACE TO STOW /BACK-UP YOUR DATA WAS KILLED FOR THE WHOLE WORLD ECONOMY (for which I believe the US owes huge reparations).

And now, suddenly Dotcom is a thug? Really?

If human memory is this short, then we really do deserve to die out for the cockroaches.
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Anonymous Coward, 26 Dec 2014 @ 6:32pm

If persons are interested in learning about this matter from someone who has first hand information, a good place to start is with the DOJ. Copies of court orders, the indictment, summary of evidence, etc. can be found at:

http://www.justice.gov/usao/vae/megaupload.html#ImportantDocuments

Of course, if persons are interested only in ranting about just how badly KD and his cohorts are being treated, they are strongly encouraged to refrain from reading the information available at the above link.
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That One Guy (profile), 26 Dec 2014 @ 7:46pm

Re:
Oh that's a good one, 'For an unbiased account of the case, here's an overview of it provided by one of the parties involved'.

Seriously, do you honestly expect them to provide an unbiased accounting, when doing so could undermine their own case? Do you give the same credibility to any legal filings made by Dotcom's legal team, or is only one side trustworthy to you?

To then insinuate that those that find the DOJ's actions during this whole debacle questionable are the ones intentionally closing their eyes to the evidence... oh, that is just too funny.

And again, I don't even need to go very far down in the documentation to run into a bogus argument.

11. If there are multiple links to a file, then any attempt by the copyright holder to
terminate access to the file using the Abuse Tool or other DMCA takedown request will fail
unless all of the URL links to the infringing file are known and submitted, because the file will
continue to be available through any undisclosed URL links. The infringing copy of the
copyrighted work, therefore, remains on the Mega Conspiracy’s systems as long as a single link
remains unknown to the copyright holder. The Mega Conspiracy maintains a record of links that
have been generated by the system, but duplicative links to infringing materials are neither
disclosed to copyright holders, nor are they automatically disabled or deleted when a copyright
holder either uses the Abuse Tool or makes a standard DMCA copyright infringement takedown

This particular issue has actually been discussed on TD before, but to sum up, just because one instance of a file is infringing, does not mean that all instances of a file are, so to claim that with a single DMCA claim someone should be able to wipe out all links to a given file is overkill of the highest order.

For a physical example, that would be like a store claiming that a book someone had was stolen, and the police confiscating and destroying every copy of the book. Utterly insane to put it mildly, yet they're still claiming that such is perfectly reasonable.
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That One Guy (profile), 26 Dec 2014 @ 8:04pm

Re:
Oh look, the ridiculous arguments keep on coming...

17. Though the public-facing Megaupload.com website itself does not allow searches, it does list its purported “Top 100 files”, which generally includes files that are freely available on the Internet, such as motion picture trailers and software trials. The Top 100 list, however, does not actually portray the most popular downloads on Megaupload.com. Instead, the Top 100 list has been deliberately manipulated by members of the Mega Conspiracy, which makes the website appear more legitimate and hides the popular copyright-infringing content that drives its revenue.

So not having a search engine for the site, and only listing non-infringing files, is proof of the MU team encouraging and facilitating infringement, rather than evidence that they are trying to limit infringement by making infringing content difficult to find...

Makes perfect sense to me. /s

And the crazy keeps piling up.

18. If a user uploads a video file to Megaupload.com, then the user can view the file using a “Flash” video player on the Mega Conspiracy-controlled website Megavideo.com. According to Alexa.com, a subsidiary company of Amazon.com that analyzes Internet traffic, Megavideo.com was at one point in its history estimated to be the 52nd most frequently visited website on the entire Internet. Browsing the front page of Megavideo.com does not show any obviously infringing copies of any copyrighted works; instead, the page contains videos of news stories, user generated videos, and general Internet videos in a manner substantially similar to Youtube.com. Members of the Mega Conspiracy, however, have purposefully copied content directly from Youtube.com in order to populate Megavideo.com, which has the effect of making the website appear more legitimate. Megavideo.com provides a search function, but any search for a copyrighted video will not produce results that include the full-length copyrighted work, even though that copyrighted-work can be viewed and downloaded from a Mega Conspiracy controlled server somewhere in the world.

And again, not listing infringing works, either on the main page, or in searches, is turned against them, and spun as though it's just more proof that they are encouraging infringement.

The DOJ's own arguments shoot themselves in the metaphorical feet. They argue that the MU team encouraged the posting of infringing content to draw in more traffic, and then use the fact that the system was intentionally designed to make it more difficult to find infringing content as proof of the claim.

They can't have it both ways. Either MU was trying to draw in more traffic with infringing works, in which case they would have made those works easy to find(it doesn't matter how valuable something is if you can't find it after all), or they were trying to decrease infringement by making infringing works more difficult to find, in which case their system would have been set up exactly as it was(no ability to search on the main site, limited search on secondary sites that excluded infringing works).

I'm barely 5 pages in and their argument is already looking full of holes. You really thought such laughable logic would be enough to convince people to the DOJ's side in this?
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Anonymous Coward, 27 Dec 2014 @ 5:37am

Re: Re:
"17. Though the public-facing Megaupload.com website itself does not allow searches, it does list its purported “Top 100 files”, which generally includes files that are freely available on the Internet, such as motion picture trailers and software trials."

I have to laugh at the stupidity of what the MAFIAA is stating. They do NOT mention of anything that is infringing in this top 100 all they mention is movie trailers and software trials that are freely available elsewhere and yet these are not in themselves infringement. LOL
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Anonymous Coward, 27 Dec 2014 @ 6:43am

Re: Re: Re:
The indictment provides this merely as a recitation of a fact...that searches were not a feature of MU. This fact was then blended with other recitals in the indictment to show how the DOJ alleges MU implemented an effective alternative to a native search. One cannot merely read a single recital, analyze it to death, and then declare the DOJ is wrong and trying to send KD and his cohorts to jail based upon a string of lies. The correct way to read an indictment is to first note each allegation of a crime is separate from the rest of the indictment, each details the essential elements of what actions constitute a violation of the alleged crime, and each contains a series of factual recitals related to the alleged crime that in their totality are believed to establish the probable cause necessary to support an indictment for the alleged crime. Note that at this stage the legal standard to be met is probable cause. At trial the standard that must be met is beyond a reasonable doubt. If the latter was the standard at the beginning of a criminal matter our jails would be empty.

As for the attitude that the link must be taken with a grain of salt because it is to the DOJ, the motivation for providing the link was primarily to provide a single location where court filings could be found so that perhaps people might actually read what they actually say and stop conjecturing about what they might say. It also helps to understand what activities the DOJ is engaged in since so many comments seem to attribute activities by the NZ authorities to the DOJ and vice versa, leading to hopeless confusion that makes informed discussions well nigh impossible.
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That Anonymous Coward (profile), 27 Dec 2014 @ 9:09am

Re:
Because the driving force behind this at DOJ didn't work for the cartels, get hired at DOJ, start this clusterfuck, and then run back to the cartels.

Oh wait, that actually did happen... unlike most of the fantasy presented in the DoJ version of the truth where the **AA's can have unfettered access to data on the MegaUpload servers but paying customers can't have their personal data back because it MIGHT be infringing.
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Anonymous Coward, 28 Dec 2014 @ 6:59am

Re: Re: Re: Re:
Yeah those facts given by the US against Dotcom MUST be true being as Dotcom has already been extradited from NZ and is now in US prison awaiting trial. /Sarcasm.

Yeah those facts given by the US against Dotcom MUST be true being as he is now currently in prison in NZ after having his bail revoked a few weeks ago due to the charges brought about by the US that they stated (as FACT in their opinion) that Dotcom breeched bail conditions. /Sarcasm.

Yeah those facts given by the US against Dotcom MUST be true being as the court in HK have told the US to pay for Dotcoms legal defence in HK. /Sarcasm.

Yeah those facts given by the US against Dotcom MUST be true being as the assets that were seized and frozen in NZ will be handed back over to Dotcom in April 2015 when the time limit on those seizures will run out and the US cannot do anything about it. /Sarcasm

Yeah those facts given by the US against Dotcom are all true in their entirety. /Sarcam. LOL
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Anonymous Coward, 28 Dec 2014 @ 7:26am

Re: Re: Re: Re: Re:
This comment should demonstrate to others, as it does to me, that you have not read for comprehension anything associated with the matter of MU, KD, and his co-defendants in NZ and elsewhere. It should also demonstrate that your knowledge of how criminal proceedings works is charitably best stated as "extremely limited".

Knowing little about a complex case, and even less about legal proceedings, is something that should he hailed as a necessity before expressing strong opinions of complex, legal matters. /s
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Anonymous Coward, 28 Dec 2014 @ 9:14am

Re: Re: Re: Re: Re: Re:
LMAO. /sarcasm. LOL
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Stoatwblr (profile), 6 Jan 2015 @ 11:20am

Re: 'Law', what's that?
"So they admit that the warrant was vague, and easily open to interpretation, but ruled it legal anyway. The police in that country have got to love them."

They do.

Check out http://laudafinem.com/

The problem is that NZ is a small country with everyone in power in everyone else's back pocket and a fairly pliable population who still believe that there is no way corruption could be hiding in backrooms and high offices. (That may have been true once, but it hasn't been since the 1950s at least)

New Zealand media is complicit in this and anyone who threatens to rock the boat is usually quickly gagged by threats of civil defamation lawsuits from those who stand to be exposed (New Zealand has no "public interest" or "absolute truth" defences)
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Stoatwblr (profile), 6 Jan 2015 @ 11:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"They're essentially arguing that it's perfectly fine for a judge to issue a warrant without the legally required details, and that just does not strike me as a good thing."

New Zealand policy when they prosecute anyone is to seize all their assets and finances, then force them to use public defenders (with limited hours available)

The police were rubbing their hands with glee on this, as they thought they'd be pocketing the proceeds from seizures with Dotcom unable to mount an effective defence.

There have been a large number of cases of miscarrriages of justice that finally ended up out of New Zealand at the UK Privy Council where convictions were overturned and _extremely_ harshly worded comments about the behaviour of both the NZ courts and Police entered into the record.

As a direct result of these Privy Council judgements, in the 1990s the New Zealand government stripped the ability to appeal to the Privy Council and insituted a new "highest court in the land" composed of the very same judiciary whose impartiality had been fiercely criticised in Privy Council decisions.

It's worth noting that New Zealand has been singled out as the country in the world whose economy has been most crippled by growing inequality across the board - inequality which has become increasingly rampant since the late 1990s.
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Stoatwblr (profile), 6 Jan 2015 @ 11:35am

Re: Re:
This is exactly the point.

By doing what they have done, the New Zealand govt has elevated a fairly noxious individual to somewhat of a folk hero.

More worryingly, the fact they've demonstrated they're perfectly willing to throw away the rulebook to go after someone like Dotcom means they're equally as willing to throw away the rulebook if they decide they don't like YOU.
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Stoatwblr (profile), 6 Jan 2015 @ 11:47am

Re: Re: Re: Re: Re:
"the court in HK have told the US to pay for Dotcoms legal defence in HK."

A URL for this would be illuminating.
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Uriel-238 (profile), 6 Jan 2015 @ 12:46pm

Re: Re: Re:
That's how you make odious characters into public heroes.

Public heroes are often odious characters, since the non-odious ones often don't have the power to resist and overreaching state.

Whenever there is an overreach of justice, whenever it becomes policy to ignore the rights of the people in the pursuit of justice, we're going to see someone despicable walk "on a technicality" before that policy is rectified. Some psycho-killer or terrorist or child molester gets to walk because the state failed to respect his rights, and by extension, the people's.
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