Once Again, New Zealand's Spying On Megaupload Execs Found To Be Illegal

from the because-of-course dept

Fri, Aug 25th 2017 7:39pm — Mike Masnick

Earlier this week, the new documentary by Annie Goldson about Kim Dotcom, Kim Dotcom: Caught In The Web was released. It's available on basically any authorized platform (and, not surprisingly, quickly showed up on a number of unauthorized platforms as well). I should note that I sat for two interviews with the filmmakers, and am very briefly in the film. It's really worth watching. While it doesn't go as deep into the weeds of the specific legal issues at play as I, as a legal geek, might enjoy, that's understandable as a more mass market documentary. And I think it does a really great job of at least getting across the basic issues, of how people in Hollywood, the DOJ and New Zealand law enforcement, intelligence and government were so won over by the image of Kim Dotcom, that they didn't bother much with the legal details.

One aspect of the legal case that is definitely discussed in the documentary is the fact that the New Zealand intelligence service, GCSB, illegally spied on Kim Dotcom on behalf of the US government. That's supposed to be forbidden, as the GCSB is only supposed to spy on foreigners, and not citizens or permanent residents. This came out fairly early on in the case against Dotcom, but there's been an ongoing legal battle (one of many...) into what it means concerning the case against him. GCSB had said that they didn't mean to break the law, so it shouldn't matter. And New Zealand moved to change the law to expand GCSB's surveillance powers over New Zealanders in the future.

But on Friday, New Zealand's High Court officially unveiled a ruling from back in December, saying that the surveillance of two of Dotcom's colleagues was illegal. This goes beyond what was previously revealed a few years back. Of course, it appears that part of the ruling is based on GCSB refusing to provide any details, claiming they are "top secret" and that to respond to the charges would "jeopardise the national security of New Zealand." Yes, or perhaps just jeopardize GCSB.

It's not entirely clear that this will have much of an impact on the case for Dotcom directly, though it once again highlights how the investigation and case against him involved an awful lot of cut corners by officials who totally bought into Hollywood's repeated story about how Dotcom was "Dr. Evil." Dotcom's lawyer, Ira Rothken, is arguing that this is yet another reason why the case should be dropped -- but so far the courts haven't really seemed to care much about all of the errors, law breaking and over reaction in building the case against Dotcom. However, as Rothken notes:

"This case and extradition should now be dismissed in the interests of justice.

"The government's illegal conduct has reached such an extreme level that we believe that no court should entertain an extradition proceeding so tainted with state sponsored abuse and violations of basic human rights."

For years now, I've explained why the case against Dotcom has serious problems -- mainly in that it makes up elements of criminal activity that simply don't exist in the law. The fact that there was also illegal spying on Dotcom and his partners only raises more questions. Yet, so far, the courts don't seem very interested in dealing with any of that, preferring to smooth things over with a simple "but bad stuff happened, therefore he should be punished." It's one of the most extreme examples we've seen of what law professor Eric Goldman has called out concerning lawsuit about infringement online: the courts frequently ignore the actual law if they sense there was "too much infringement." The fact that the government also got some of its information through illegal spying may not be enough to counteract the massive gravitational pull of "but... but... infringement."

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Filed Under: gcsb, kim dotcom, new zealand, surveillance
Companies: megaupload

37 Comments

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Anonymous Coward, 25 Aug 2017 @ 8:09pm

Merely out of curiosity, what elements of criminal activity do not exist in the law (presumably the US)?
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That Anonymous Coward (profile), 25 Aug 2017 @ 8:14pm

When your "rights" get in the way of what Hollywood wants, you have none.
Of course this isn't going to raise questions about how the alleged departments of justice around the globe have fallen under their sway.

The case should have never happened.
The spying should never have happened.

We have a case where not being in the US is being held up as PROOF he must be guilty, because we don't think he should have the right to question the extradition.
We have a case where an untold number of people have been denied their property because an infringing file MIGHT get out.
A case is based on a twisted non-existent version of the law, created to shut down 1 person who joyfully thumbed his nose at Hollywood.
We've been so petty we've denied the accused access to funds to have a proper defense, because if you can't win in court bankrupting him is just as good.
Somehow we get our hands on tons of internal communications from a private business, yet no one really knows how.
We base this all on the word of the **AA's who have literally LIED to the government about crimes, gotten property seized, & then never delivered the proof they claim to have had.

Kim Dotcom isn't the nicest guy in the world, but we aren't winning any points with our behavior.
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Anonymous Coward, 25 Aug 2017 @ 8:28pm

Re:
https://www.techdirt.com/articles/20120530/16055119130/megaupload-filings-show-massive-flaws-us-case -ask-court-to-dismiss.shtml
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Anonymous Coward, 25 Aug 2017 @ 8:59pm

Re: Re:
Citation noted. Unfortunately, it manifests a misunderstanding of federal criminal statutes, and in particular that associated with aiding and abetting the commission of a crime.

See, in particular: http://lawtheories.com/?p=2592
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Anonymous Coward, 25 Aug 2017 @ 9:28pm

Re: Re: Re:
That's a nice rebuttal of a different case with a different argument being made.

(P.S. The commenter on that article is wildly entertaining)
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Anonymous Coward, 25 Aug 2017 @ 10:32pm

Re: Re: Re: Re:
The article cited relates to the legal issue of criminal aiding and abetting under US law, something that for reasons unknown the principals at this site continue to insist does not exist. Such a crime is covered by a specific statute of general aplicability, which includes copyright.

Of course, the above is limited to US law. In other jurisdictions the domestic law would govern. Bear in mind though that even persons outside the US may be subject to US prosecution depending upon the factual situation.
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Anonymous Coward, 25 Aug 2017 @ 10:48pm

No wonder MyNameHere's such an apologist for the NSA.

If not for Snowden, it'd be a lot easier to enforce copyright without inconvenient things like warrants and ethical boundaries.
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Anonymous Coward, 25 Aug 2017 @ 10:56pm

Not just the spying on the execs but on Dotcom, his wife and Megaupload as well, according to Torrentfreak. Read their article for more info
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Anonymous Coward, 26 Aug 2017 @ 4:35am

"For years now, I've explained why the case against Dotcom has serious problems -- mainly in that it makes up elements of criminal activity that simply don't exist in the law. The fact that there was also illegal spying on Dotcom and his partners only raises more questions. Yet, so far, the courts don't seem very interested in dealing with any of that, preferring to smooth things over with a simple "but bad stuff happened, therefore he should be punished.""

Remember when it was discovered that Dotcom and 88 people were illegally spied on. NZ then changed the law to make that legal going forward. I would not be surprised that when this matter reaches the NZ Supreme Court on appeal as the prosecution is sure to appeal this "illegal" spying the NZ Supreme Court will no doubt overturn the High Court's decision and paint the GCSB as angelic angels in comparison to the devil and the GCSB will be found to be not guilty in this matter.

Ira Rothen is right to say that this extradition should now be dismissed and dropped because of the illegalities so far but I have a feeling that more illegalities will be brought to light and still the case will continue as though nothing has been noticed!
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Anonymous Coward, 26 Aug 2017 @ 7:47am

Court TV
I think Court TV turns the populace into thinking that Street Justice is the same as Legal Justice.

For example, on Judge Joe Brown, there was a case of a dog biting another dog. In California law, the dog owner is culpable whether or not the owner was in charge of the dog at the time of the incident. In the state where the unfortunate incident took place, the owner is not automatically culpable. The person in charge of the dog at the time is culpable.

I am pretty sure this was not brought out on court TV, even in the parts that were not aired.

Even in the state where the incident took place, the person from animal control had no clue that the owner was not legally responsible for the incident when the owner was not present, and had left the dog inside the house before going to work. Animal Control said, "Well the responsible party was asleep when I came to investigate, so I went after the owner who was willing to come to the door." And the person charged could actually challenge whether they were the "owner," as another person was named on the Vet. records.

Regardless, the person charged was not legally responsible under the state law, and technicalities are brushed aside for the mediation conducted on Court TV, and sacrificed for Hollywood drama.

Court TV would be such a good place to educate the public about what laws and precedents actually say, and could make everyone a legal analyst. Laws are not that hard to understand, and case law is not that hard to read.

Many years ago, when some people couldn't read and write, using Street Justice was totally understandable. Even 30 years ago, law books were not available to the general public. But today there is no excuse for people in official positions to impose their interpretation of Pop TV Street Justice on everybody.

You no longer need a lawyer to access the law books, and accessing case law in other localities was one of the first uses made of the internet in universities, even before dial-up.
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Anonymous Anonymous Coward (profile), 26 Aug 2017 @ 8:13am

Re: Court TV
A little bit of knowledge can be really dangerous. Reading law books and case law without some training, or a lot of training only gives a little bit of knowledge. Getting people to think they can represent themselves in court is teaching them to be harmful to themselves. Even lawyers, that represent themselves, have fools for clients.

I don't care much for our system where one's ability to afford high priced lawyers is intrinsic with a good defense. Good lawyers do exist, and some of them are high priced, and some not. Finding the right one, for a particular situation can be difficult. Even then with the plethora of laws and case law that impact a case can be difficult to untangle.

Stating "You no longer need a lawyer..." is really stupid, even if all the laws and rules and case law are available. Comparing Court TV with the real thing is just batshit crazy.
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Anonymous Coward, 26 Aug 2017 @ 10:14am

Re: Re: Re: Re: Re:
"The article cited relates to the legal issue of criminal aiding and abetting under US law"

and this article is about Megaupload ... Trying to remember where that occurred - Oh, wait a sec, heh, it's in the title!
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Anonymous Coward, 26 Aug 2017 @ 10:15am

Re:
When your "rights" get in the way of what bigmoney wants, you have none.

ftfy
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Anonymous Coward, 26 Aug 2017 @ 10:18am

Re: Court TV
Court tv - lol - what a joke.
I think people concoct stories just to go on that show and get some money.

If people acted like that in a real court room they would be put in jail for contempt.
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R.H. (profile), 26 Aug 2017 @ 10:43am

Re: Re: Court TV
I think you're misunderstanding the other AC, they seem to be saying that Court TV could be a good place to learn about the law but, it's subverted by the want for drama.
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Anonymous Coward, 26 Aug 2017 @ 11:39am

Rule of law
If the government can't be trusted to adhere to the rule of law, why should any of their constituents?
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Anonymous Coward, 26 Aug 2017 @ 11:54am

Re: Re: Re: Re: Re: Re:
You seem to forget that what has been going on relates to an extradition proceeding in NZ. It is not a matter involving copyright law per se. That law will come to the fore when KDC is extradited and enters the US to stand trial on various criminal charges.
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Anonymous Coward, 26 Aug 2017 @ 12:44pm

Re: Rule of law

If the government can't be trusted to adhere to the rule of law, why should any of their constituents?

Simple: Fear of what the government will do to them. It's as if though the government has given up on respect and decided to militarize the police and rule by fear instead.
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Anonymous Coward, 26 Aug 2017 @ 12:59pm

It's good to know where the bodies are
" And New Zealand moved to change the law to expand GCSB's surveillance powers over New Zealanders in the future. "

That is so eff'd up and especially because it is not a NZ exclusive thing.

As a normal person I would love if the Gov "expanded my powers" and removed the speed limits. As in:
I didn't mean to break the law but I was late for work and 200km/h (120mph) in the city should be legal.
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Daydream, 26 Aug 2017 @ 5:41pm

As illegal and inequitable as this case is, it's not going to go away.
Think about it. The prosecution in the US hasn't just committed a few procedural oversights, they've flagrantly abused the law and thoroughly violated due process; withholding evidence from the defence team (emails, server contents, etc), used asset forfeiture to seize foreign assets without any proof, prevented innocent people from recovering their proven-legal intellectual property, Andrus Nomm was mistreated and pressured into giving a false confession...

If the US gives in now, if the judge in NZ finds that there's no case to answer (and thus, no cause for extradition), if if if, they'll be facing allegations that they knowingly stole and/or destroyed tremendous amounts of intellectual property belonging to others, that they unlawfully destroyed a business worth millions of dollars, that they misrepresented their legal rights and evidence to steal millions in foreign financial assets, that they falsely imprisoned someone and pressured him into perjury...AND, this has been going on for years and years, they will be facing someone (or lots of people, class-action and all) with the money and patience to prosecute these matters.
And if the US fails to successfully defend its committing these crimes under colour of authority, they will be looking at paying out millions, if not billions, to Kim Dotcom for his lost business and wrongful asset seizure, various Megaupload users for their lost intellectual property (and remember, other big companies were storing stuff on Megaupload too), Andrus Nomm for his false imprisonment...and they might be facing imprisonment themselves for such flagrant violations of the law.

In short, the US prosecution HAS to cling on to this case and never let go, because if and when their case against Megaupload is inevitably destroyed, the prosecutors, the RIAA, MPAA, and everyone else involved in this mess are going to go down with it, for gross violations of due process, fraud, and (ironically) criminal copyright infringement.

...Keeping that in mind, I wouldn't be surprised if Kim Dotcom is targeted for a discrete 'make it look like an accident' assassination. It's a bit harder to sue or bring charges when the richest plaintiff comes down with an inconvenient case of dead.
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Anonymous Coward, 26 Aug 2017 @ 7:14pm

Re: As illegal and inequitable as this case is, it's not going to go away.

In short, the US prosecution HAS to cling on to this case and never let go, because if and when their case against Megaupload is inevitably destroyed, the prosecutors, the RIAA, MPAA, and everyone else involved in this mess are going to go down with it, for gross violations of due process, fraud, and (ironically) criminal copyright infringement.

Nah, some government judge would just grant them all immunity and they'd all be whistling on their way out of court with big smiles on their faces. That is if it ever even got that far.
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That Anonymous Coward (profile), 26 Aug 2017 @ 8:18pm

Re: Re:
Well the DoJ has been acting for the **AA's, ICE for the NFL, its like every department has a corporate sponsor
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Anonymous Coward, 26 Aug 2017 @ 9:49pm

Re: Re: Re:
Reading through that, it focuses on one of the arguments in a different case, that there is no aiding and abetting in criminal copyright law. However, I have not seen Mike make that argument. In fact, in his own article about the Vaulin case, he explicitly said he disagrees with the argument that aiding and abetting doesn't apply to criminal copyright law. He said it does: https://www.techdirt.com/articles/20170805/00450537929/kickass-torrents-creator-cant-get-criminal-ca se-tossed-out.shtml

So, that link is totally unrelated to the argument it appears Mike has made. *That* argument is that to have aiding and abetting criminal copyright infringement, you first have to have some criminal copyright infringement. But the problem with these cases is that they show "aiding and abetting" in *civil* copyright infringement. The users of the site's actions do not elevate to criminal infringement -- just civil. The operators of the site are making money, but not by infringement. Thus, there's no clear criminal copyright infringement at all, and without that, how do you argue aiding and abetting a crime that does not exist?
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Anonymous Coward, 26 Aug 2017 @ 10:12pm

Re: Re: Re: Re:

Thus, there's no clear criminal copyright infringement at all, and without that, how do you argue aiding and abetting a crime that does not exist?

Easy. Just get yourself a sympathetic and/or ignorant judge, claim that it is, get it rubber stamped, and move on to the conviction phase.
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Anonymous Coward, 27 Aug 2017 @ 1:03am

Re: Re: Re: Re: Re: Re: Re:
"It is not a matter involving copyright law"

Except that it is. It's the basis for which they decided to extradite him based on fraud.

If the DOJ had to wait for Dotcom to be in the US for the courts to decide if it was an issue of copyright law, this extradition nonsense wouldn't have happened. Inconveniencing the RIAA is not an extraditable offense, which is why they had to have it changed to fraud.
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Anonymous Coward, 27 Aug 2017 @ 7:14am

Re: Re: Re: Re: Re: Re: Re:
"enters the US to stand trial on various criminal charges."

Various criminal charges ... I love the smell of bullshit in the morning.
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Anonymous Coward, 27 Aug 2017 @ 7:20am

Re: Rule of law
And if they keep pushing ... I think they want to start a civil war so that they can declare martial law and make their guy a dictator/king/emperor - whatever you want to call it.

I doubt they have thought this through to its inevitable end, because they are not students of history they seem clueless, anyways - on their schedule there is probably a milestone which reads "and then a miracle happens".
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Anonymous Coward, 27 Aug 2017 @ 7:23am

Re: Re: As illegal and inequitable as this case is, it's not going to go away.
Yup. If they pardon Sheriff Joe, they will pardon anyone.
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DONT BE STUPID BE EDUCATED, 27 Aug 2017 @ 8:49am

i didnt mean to cut off that guys head ( wink wink)
i didnt mean to cut off that guys head ( wink wink)
and then beat him with a hammer to make sure he was dead...no really i didnt honest

hahahaaahahahaha
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Anonymous Coward, 27 Aug 2017 @ 10:18am

Re: Re: Re: Re: Re: Re: Re: Re:
I take it that you are an expert and legal practitioner in matters involving criminal law. Otherwise, yours is just a non-sensical comment adding nothing to the ongoing discussion.
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Anonymous Coward, 27 Aug 2017 @ 12:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
The RIAA and MPAA went on a witch hunt, and decided that Kim was an evil Wizard, and the accusation is sufficient to get him tied to a stake and burnt.
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Anonymous Coward, 27 Aug 2017 @ 12:22pm

Re: i didnt mean to cut off that guys head ( wink wink)
What in the world are you going on about? Or maybe I should just ask, what are you on?
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Anonymous Coward, 27 Aug 2017 @ 12:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

The RIAA and MPAA went on a witch hunt, and decided that Kim was an evil Wizard, and the accusation is sufficient to get him tied to a stake and burnt.

Hey, those witches all got trials.
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Anonymous Coward, 28 Aug 2017 @ 1:26am

No Fair Trial
By now, even the dimmest member of the NZ judiciary should understand that Kim Dotcom has no chance of getting anything remotely like a fair trial, if he gets extradited to USA. Therefore, extraditing him would be a clear injustice. Therefore, stop trying to extradite him and consider revising the extradition treaty between NZ and USA.

If the USA government cannot manage to stay away from obvious corruption, when Hollywood is involved, then they do not get the presumption of extradition being justified.
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Anonymous Coward, 28 Aug 2017 @ 7:48am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I call bullshit and that means that I am an expert?
Interesting.

.. and it is "non-sensical".

My contributions - lol
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Get off my cyber-lawn! (profile), 28 Aug 2017 @ 3:24pm

Witch Hunt
Tie them to a pole and dunk them underwater!
- if they survive they are a witch & kill them!
- If they don't....well at least they died without being a witch!

Megaload - Seize all his assets and extradite him to the US!
- If he is convicted (because he can't afford a decent defense after the US seized all his assets) then he was guilty all along
- If he successfully defends himself....then he's got something else going on so repeat again from the top!
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Get off my cyber-lawn! (profile), 28 Aug 2017 @ 3:35pm

Aiding & Abetting
So, given this particular train of logic....all US telephone carriers should be found guilty of aiding & abetting every single drug transaction ever arranged using their network. They provide the technology and even though MOST of the uses are legitimate, they ABSOLUTELY KNOW FOR A FACT that some of their users are committing crimes using their technology. Ipso facto - they are aiding & abetting.

AT&T, VERIZON, etc - go ahead and turn yourselves in at the nearest PD. I'm sure you'll be treated fairly just like MegaUpload has been.
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