Appeals Court Reverses Previous Decision That Found Warrants Used In Kim Dotcom's Arrest 'Invalid'

from the the-wheels-of-justice-also-apparently-tread-water dept

The Kim Dotcom saga rolls on. The legal process that resulted in Dotcom's New Zealand mansion being raided by local police was always questionable, a fact that was never more obvious than when a New Zealand high court judge declared the warrants used in the raid "invalid" because they were "general warrants" that failed to specify what offense justified the raid as well as what particular items were being sought.

As Mike noted then, the warrants were problematic because they failed to specify which US law(s) had been broken (or whose laws, for that matter), something rather important in a case being run by the US government. A New Zealand appeals court saw things differently, however.

A New Zealand appeals court ruled Wednesday that police acted legally when armed officers raided Megaupload founder Kim Dotcom's Auckland mansion as part of a US-led online piracy probe.

The decision overturned an earlier finding that the January 2012 dawn raid was unlawful because the search warrants police used were too broad to be considered reasonable.

According to the appeals court, the warrants weren't invalid, but just mildly screwed up.

An appeals bench of three judges found the warrants were "defective in some respects" but not enough to render them invalid.

"This really was a case of error of expression. The defects were defects in form not in substance," they said in a 44-page written judgement.

As the appeals court sees it, failing to specify which set of laws was being applied (US/New Zealand) is more like a typo than an indication that the underlying legal basis is flawed. I would hazard a guess that "errors of expression" are the sort of thing that tend to crop up more frequently when one law enforcement agency acts on the behalf of another country's government… which is in turn acting on behalf of an industry.

And this warrant discussion isn't completely over. Dotcom's team is planning to appeal the decision, which will subject these admittedly faulty (by two courts!) warrants to another round of scrutiny, something that can't be welcome news for the US government's prosecution team.

Filed Under: kim dotcom, new zealand, warrant

New Zealand Spy Agency Deleted Evidence About Its Illegal Spying On Kim Dotcom

from the oops dept

I have to admit that I'm consistently amazed at just how badly law enforcement in both the US and New Zealand appeared to screw up the raid and the case against Kim Dotcom. I've said it a few times before, but it really feels like authorities in both places actually believed the bogus Hollywood hype being spread by the MPAA about how Dotcom was really a James Bondian-villain, and acted accordingly, while ignoring any evidence to the contrary. As you know by now, the New Zealand equivalent of the NSA, the GCSB, illegally spied on Kim Dotcom and other New Zealand residents and citizens -- and the New Zealand government then decided to try to hide that. While the police agreed that the spying was illegal, they declined to do anything about it, so Dotcom sued the government himself.

The latest news in this: GCSB appears to have deleted key evidence in the case in a hamfisted attempt to cover up its illegal activities. Even more ridiculous, GCSB is trying to cover this up by claiming that the material had "aged off" -- implying that it was deleted automatically. New Zealand Prime Minister John Key claims that they had to delete the information under the law.

Of course, there are a few problems with that. The first is that under New Zealand law, like most countries these days, parties have an obligation to preserve documents likely to be necessary in a legal case. But, even more damning is that there's video of John Key in the New Zealand Parliament trying to defend against an earlier claim that GCSB had deleted some evidence by insisting that GCSB does not delete anything ever: In the video, he notes: "This is a spy agency. We don't delete things. We archive them. And they went right back to the ultimate source document, and asked themselves the question: Has there ever been a deletion? And the answer was NO!!" And yet now he's claiming that it's normal everyday policy to delete key evidence?

Filed Under: destruction of evidence, evidence, gcsb, john key, kim dotcom, new zealand
Companies: megaupload

60 Minutes vs. Vice On Kim Dotcom -- Neither One Goes Deep Into The Issues

from the two-sides dept

A few months back I spent quite some time on the phone with two producers from 60 Minutes concerning a story they were planning on Kim Dotcom. They insisted that it was going to be a more nuanced piece than the usual media coverage portraying Dotcom as the "Dr. Evil" of the copyright industry. The episode finally aired this past weekend, and to the show's credit, it definitely does take a somewhat more nuanced look at Dotcom. An interview with Dotcom is the centerpiece of the story, which certainly allows him to express some of his position. However, it also allows a number of highly questionable statements from the FBI and others, including saying that the $500 million that Megaupload made is "lost revenue" from Hollywood. However, when Dotcom himself makes a claim about being a businessman, the reporter openly laughs at him and points out the fact that decades ago, Dotcom claimed to have hacked into government computers. Much of the piece (and the extra material on the web) focuses almost exclusively on the fact that he lives in a mansion (they conveniently leave out that it's rented). It's not a completely one-sided portrait, but it hardly gets at any of the underlying legal issues that are at the core of the case. Basically, every time they suggest any of the legal issues, it's almost immediately followed up by "But look at this amazing house!" Meanwhile, a day or two before the 60 Minutes episode aired, Vice released its own interview with Kim Dotcom which is worth watching as well. It covers some of the same stuff from a very different perspective, of course. A lot more of a focus on video gaming, music and such. Unfortunately, it too, is a bit weak on the legal issues. In the second half of that video (the first half is basically just wandering around the house), Dotcom finally is given some chance to weigh in on legal and policy issues -- things that never come up at all in the 60 Minutes interview. Dotcom focuses much more on the NSA revelations, discussing how it's had such a negative impact on the tech industry. Of course, right after Dotcom goes into discussing all these points, the reporter immediately jumps to asking him about the photos of Dotcom on a private plane and a yacht. Also, way too much of the video focuses on the reporter wanting to sing in one of Dotcom's songs. Really? In the end, both of them are kind of different generations doing the same thing: a story on Kim Dotcom that focuses on "Gee, look at his massive house, and this crazy guy," rather than really presenting the key issues concerning copyright, surveillance, privacy, internet freedom -- and the policies behind all of the laws related to those things. That's too bad, as it's really a lost opportunity for both media properties. Vice at least lets Dotcom raise some of these issues, but pays almost no attention to them.

I can understand the "media" appeal of both stories. Dotcom and his persona are entertaining. But unfortunately, it seems like that too often is used to obscure the underlying issues which are incredibly important and serious.

Filed Under: 60 minutes, kim dotcom, vice
Companies: megaupload

DOJ Releases Some Megaupload Evidence; Actually Shows Difficulty Of Running Cloud Service

from the chilling-effects dept

Following the reports of how the DOJ was sharing Megaupload evidence with private companies, the DOJ has now unsealed details of some of the evidence it has against Megaupload. Looking through the details, it's not surprising that much of it simply repeats things that were in the Megaupload indictment. And, as we noted about the indictment, that seems to include taking a bunch of things out of context, and trying to paint them in the worst possible light, when put back into the context, much of what's discussed doesn't seem that bad at all.

For example, the DOJ discusses Skype chats and emails in which Megaupload employees discuss ways in which they might prevent some infringement from happening, and at other times say things like "I have the feeling that Kim tolerates a certain amount of copyright infringement." While the DOJ seems to think these are damning, it seems like the opposite. It seems clear from a statement like the one quoted that "enabling infringement" wasn't a focus of the operation. After all, if the company was so focused on profiting from infringement, wouldn't it be clearly known and wouldn't it be openly discussed as such? Saying that you think the boss "tolerates a certain amount of copyright infringement" suggests, without any direct evidence, that the company recognizes it needs to deal with the infringement effort, but that there are tradeoffs there. IF the company was really a "piracy conspiracy" as the DOJ and the MPAA like to claim, then you'd think the comments would be much more along the lines of direct quotes about figuring out ways to enable much more infringement. Instead, you get discussions of ways to possibly stop more infringement:

“Maybe we should automatically delete videos on Megavideo that are longer than 30 minutes and have more than XXX views or something because I still see so much piracy that is being embedded.”;

That doesn't sound like something coming from a company that is interested in building a business around infringement. It sounds like a cloud storage provider struggling with the best way to provide the best service possible, while thinking through ways to limit infringement.

As far as I can tell from these snippets, the DOJ seems to be arguing "well, they knew the service was used for infringement, thus they're guilty for not stopping it." But that's not (at all) how the law works. As was found in the Viacom/YouTube case, company officials need to be aware of specific cases of infringement (such as via a clear and complying takedown notice) rather than general knowledge that the platform is used (even widely) for infringement.

Once again, while you never know how a judge might read these statements out of context when presented in the worst possible light by a DOJ that's in-bed with the MPAA, the striking thing to me is that the evidence is so weak. Given just how much the MPAA made Kim Dotcom out to be pure evil, I honestly expected real evidence of an operation built around infringement. The DOJ's case is stunningly weak here. If I were working at the DOJ, honestly, I'd be hoping that the extradition attempt fails, because actually pursuing this case in court runs a very serious risk of a huge embarrassment for the government, bringing a highly questionable case on the weakest of evidence, presented entirely out of context.

Filed Under: doj, evidence, kim dotcom
Companies: megaupload

NZ Customs Refuses To Answer Questions After Revelations Of Illegal Orders To Give FBI Info On Kim Dotcom For 'Brownie Points'

from the the-scandal-expands dept

The scandal around New Zealand law enforcement's illegal activities in helping the US government raid Kim Dotcom's house and file criminal charges against him keeps expanding. The raid on the house has already been declared illegal by the NZ High Court. Then there was the issue of the local equivalent of the NSA, the GCSB, illegally spying on Dotcom for the US, despite rules that forbid GCSB from spying on New Zealand residents. It seems to be getting even worse.

A few days ago, it was revealed that a document, which was illegally withheld from an earlier freedom of information request, showed that a senior New Zealand Customs official named Greg Davis, told staffers that it would "buy you many brownie points" if they shared info about Kim Dotcom with the US FBI -- despite not being allowed to share info like this. At least one of the people who received the email noted that people should "seek legal advice" before handing over such information, but it's unclear if anyone actually did that.

Now, as concerned members of the New Zealand Parliament are wondering why top customs officials were interested in handing over private information on New Zealand residents to a foreign country's intelligence agencies for "brownie points," New Zealand's Customs officials have announced that they will not answer questions about it, in an effort to -- get this -- "protect the privacy" of the guy who sent that email, Greg Davis.

Davis, by the way, was running New Zealand Custom's "Integrated Targeting Operations Centre," which collects a ton of information on travelers. Many in New Zealand had already complained about the possibility of this group to abuse its powers, but at nearly the same time Davis was proving their point, New Zealand Prime Minister John Key was defending the center with that old liar's trope: "anyone who is innocent has nothing to fear." He should have added "unless US officials are interested in you -- then you're fucked."

Filed Under: brownie points, customs, fbi, greg davis, kim dotcom, new zealand
Companies: megaupload

US Court Secretly Lets Government Share Megaupload Evidence With Copyright Industry

from the government-copyright-industrial-complex dept

In the latest in a long list of travesties carried out by the US government in the Megaupload case, apparently it went to the US court handling the case, and without letting Megaupload know, got an ex parte order allowing the government to share evidence from the case with various copyright holders and then to issue press releases about the case. As Megaupload's lawyers point out, the whole thing is a clear due process violation.

The defendants have been indicted, their assets have been frozen, their business has been destroyed, and their liberty has been restrained. Given these constraints, it is unclear what evils the Government fears defendants will inflict if provided notice of the Government’s submission, beyond having Defendants’ counsel come into court to make opposing arguments.

Basically, Megaupload's lawyers are asking to be a part of this process, since it appears that the government wanted (and the court allowed) to cut them out. As Megaupload's lawyers note, allowing the government to sort through and cherry-pick evidence to share, without any context or potential additional exonerating information, is a clear due process violation.

“The Government’s request also substantially prejudices the defendants in the case. Permitting the Government to widely disseminate a one-sided, cherry-picked set of facts threatens to improperly infect the jury pool before defendants are afforded any opportunity to present their side of the story.”

Apparently part of the issue for the original filing to reveal this information was that some copyright holders are getting antsy that as the case drags on, they won't also be able to file civil cases against Megaupload before the three-year statute of limitations expires. However, as Megaupload's lawyers point out, there is no urgency here since the government itself made no move to share this information over the past two years. If it really wanted to share the information it had ample time to make the request and allow Megaupload's lawyers to review and take part in the process, rather than trying to route around them entirely.

I'm guessing the recent successes against IsoHunt and Hotfile may have contributed to the timing as well. The MPAA pretty clearly thinks it can use those two cases to go after Megaupload as well, outside of the criminal case which will continue.

Filed Under: civil case, copyright, doj, ex parte, kim dotcom
Companies: megaupload

New Encrypted Email Services Coming From Kim Dotcom's Mega And Newzbin

from the unintended-effects dept

A month ago, we wrote about Kim Dotcom's plans to form his own political party in New Zealand. But that's not the only way that Dotcom is going on the attack against the system. Here's Vikram Kumar, the Chief Executive of Dotcom's "privacy company" Mega, on another bold move:

Mega chief executive Vikram Kumar told ZDNet that the company was being asked to deliver secure email and voice services. In the wake of the closures [of other email services like Lavabit], he expanded on his plans.

Kumar said work is in progress, building off the end-to-end encryption and contacts functionality already working for documents in Mega.

That's not going to be easy, as both Lavabit and Silent Circle know too well. Despite that challenge, Mega isn't the only company hoping to meet it. Another, rather surprisingly perhaps, is Newzbin, best known as a UK Usenet aggregator. TorrentFreak explains:

according to the site's former lawyer, Newzbin intends to make a comeback with new services designed to defeat NSA spying.

"We are horrified by the recently disclosed antics of the NSA in indiscriminately spying on all Internet users," David Harris told TorrentFreak.

"We cut our teeth protecting our users from the surveillance of corrupt US corporations like the Hollywood movie studios. We now plan to bring a range of privacy services to help protect the public from governments. Our first product is a secure email service which is about to enter closed early beta testing."

What's interesting here is the common thread with Dotcom. Both he and Newzbin's David Harris ran services that tried to resist unwanted scrutiny. That puts both of them in a good position when it comes to establishing secure email services -- at least, insofar that is possible given the limitations imposed by email's architecture. It looks like the US government's uncritical support for the copyright industry's frenzied pursuit of file-sharing sites could ultimately lead to the creation of new online services that thwart its law agencies in the far more important area of national security.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: encrypted email, kim dotcom, privacy, security, unintended consequences
Companies: mega, newzbin

Kim Dotcom Seeks Millions From The New Zealand Government For Illegal Raid On His Home

from the maybe-acting-all-commando-wasn't-a-good-idea dept

New Zealand's High Court has already ruled that parts of the raid on Kim Dotcom's house were illegal, and that's even without the fact that New Zealand's intelligence agency, the GCSB (the local version of the NSA) had illegally spied on Dotcom prior to the raid. Even law enforcement officials admit that the raid was over the top." In response, Dotcom has been trying to sue the New Zealand government. The government tried to block the lawsuit, but lost... twice.

While that lawsuit has been underway, the documents were only just revealed, showing that he, along with his Megaupload partners and Dotcom's wife, are asking for about $6 million NZ (about $5 million US) in damages for the raid and the spying. Either way, this particular case is scheduled to be heard just slightly before the resumption of Dotcom's case fighting extradition to the US, though I imagine that the results of this case could come into play in that legal fight as well.

Filed Under: gcsb, kim dotcom, lawsuit, new zealand

Kim Dotcom Forming New Political Party In New Zealand

from the never-a-dull-moment dept

Whatever your views about Kim Dotcom, you have to admire his dogged fight against extradition from New Zealand, not least because it has revealed some serious abuses of power against dozens of people. Now it seems he is taking things a stage further, if this recent tweet is any indication:

My embryonic NZ political plans leaked by whistleblower. Still looking for partners. Not ready yet :-) pic.twitter.com/azpTQm98kJ

— Kim Dotcom (@KimDotcom) August 31, 2013

In case you can't read that, it says:

My embryonic NZ political plans leaked by whistleblower. Still looking for partners. Not ready yet :-)

TorrentFreak has more details:

The photograph of the magazine [shown in the tweet above] suggests that Dotcom might become PM, but speaking with TorrentFreak today the Mega founder told us that at least for now, that won't be possible.

"I'm not a citizen of New Zealand and therefore I can't be elected into Parliament myself but I can be the president of a new party," Dotcom explained.

So, with an eye on his presidency, work is already underway to form a brand new party.

"I have created a draft political program and I am in the early stages of meeting potential candidates to join me," Dotcom added.

Another tweet spells out what might be in that program:

After the 2014 election I will get New Zealanders a new submarine cable [to connect New Zealand to the rest of the Internet], fair Internet pricing & no more data caps.

General elections don't take place in New Zealand until November 2014, so he still has some time. He's already mentioned that the party's official Web site will be launched at a "big event" on 20 January next year -- the second anniversary of the raid on his house that started everything.

New Zealand's current Prime Minister, John Key, said on a breakfast TV program that Dotcom should call his political party the "nohope" party. It remains to be seen whether Dotcom follows through with this idea, and what traction he gains. But the success around the world of the Pirate Party, with a platform largely focused on copyright reform, and the rise of other non-traditional movements such as the fledgling Wikileaks Party in Australia, shows that dismissing Dotcom's plans as hopeless may turn out to be unwise. While any individual party may not succeed, the fact that so many are popping up shows how little traditional political parties seem to grasp how important these issues are to many internet users.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, digital rights, internet freedom, kim dotcom, new zealand, political parties

Police Admit That NZ Spy Agency Illegally Spied On Kim Dotcom, But Aren't Going To Do Anything About It

from the enforce-the-law? dept

You may recall that it came out last year that the New Zealand equivalent of the NSA, the GCSB, illegally spied on Kim Dotcom (oh, and dozens of others), possibly with the help of the NSA, despite not being allowed to spy on those in New Zealand.

An investigation by the police has agreed that the GCSB clearly broke the law... but the police have said that they don't plan to prosecute the spy agency. Because, you know, that might hold them accountable. Now, at least, the GCSB knows that it can abuse the law at will with no punishment.

Instead, it appears that the excuse being used by the police is the same one we've been hearing from NSA defenders: because these abuses weren't intentional, they can be ignored:

Today, Detective Superintendent Peter Read told a media conference that in spite of the GCSB committing one breach under the provisions of the Crimes Act, no criminal "intent" by the GCSB could be established.

I'm not sure that actually makes sense. Yes, when it comes to criminal activity, intent can be important in determining if it's actually criminal, but there's little doubt that the GCSB intentionally spied on Dotcom. It wouldn't have taken very much at all to recognize that Dotcom was a resident of New Zealand who GCSB is forbidden from surveilling. So it seems like the intent was pretty clear.

Filed Under: criminal, gcsb, intent, kim dotcom, mens rea, new zealand, spying, surveillance