Extradition Trial For Kim Dotcom Pushed Back Again

from the stalling,-stalling dept

It's not entirely clear why this is happening, but it appears that the hearings concerning Kim Dotcom's extradition have been postponed yet again (apparently for the 4th time). It mostly seems to have to do with this whole issue of getting access to the evidence against him, which the US has been fighting.

His extradition hearing has already been delayed several times due to legal action relating to an illegal raid on his home and disclosure of evidence relating to his case.

A hearing in August has now been put off until April next year.

But a tentative date has been set for November, just in case a final ruling on whether his lawyers should have access to evidence, is quickly made.

Either way, it seems like this case may drag on for quite a while.

Filed Under: doj, evidence, extradition, fbi, kim dotcom, new zealand
Companies: megaupload

NZ Supreme Court Will Review Kim Dotcom's Extradition Case

from the not-over-yet dept

Back in March, we noted that while a district court had ordered the US to hand over the evidence it was planning to use against Kim Dotcom, an appeals court had overturned that ruling, and said that the evidence wasn't needed for the extradition fight. Dotcom immediately appealed to New Zealand's Supreme Court, who has now said that it will review that ruling as well, so this case will continue to drag on for some time.

Filed Under: doj, evidence, extradition, fbi, kim dotcom, new zealand, supreme court
Companies: megaupload

Kiwis Want To Spy On All Communications, VPNs, And Be Able To Use Secret Evidence Against You

from the no-justification-needed dept

Although New Zealand's decision not to allow patents for programs "as such" was welcome, other moves there have been more problematic. For example, after it became clear that the New Zealand intelligence service, the Government Communications Security Bureau (GCSB), illegally wiretapped and spied on Kim Dotcom, the New Zealand government announced that it would change the law so as to make it legal in the future to snoop on New Zealanders as well as on foreigners. Judging by a major new bill that has been unveiled, that was just the start of a thoroughgoing plan to put in place the capability to spy on every New Zealander's Internet activity at any moment. Here's an excellent analysis of what the bill proposes, from Thomas Beagle, co-founder of the New Zealand digital rights organization Tech Liberty:

The TICS [Telecommunications (Interception Capability and Security)] Bill is a replacement for the Telecommunications (Interception Capability) Act 2004. This law forced communications providers (ISPs, telcos, data networks, etc) to provide "lawful intercept" capabilities so that the Police, SIS and GCSB could access communications once they had a suitable warrant. The new bill expands and clarifies these requirements.

However, the addition of the word "security" is the key to what has changed. The new bill now gives the GCSB sweeping powers of oversight and control over the design, deployment and operation of all data and telecommunications networks run by network providers in New Zealand. The stated reasons are to both protect New Zealand's infrastructure and to ensure that surveillance agencies can spy on traffic when required. As part of this, the GCSB will have the power to stop network providers from reselling overseas services that do not provide these capabilities.

As Beagle goes on to explain, this will have a number of implications, including a requirement to build backdoors into all telecoms networks:

From the Bill:

A network operator must ensure that every public telecommunications network that the operator owns, controls, or operates, and every telecommunications service that the operator provides in New Zealand, has full interception capability.

Note that the surveillance agencies still need to have a legally issued warrant (under the Search & Surveillance Act, NZ SIS Act, or GCSB Act) to actually intercept any communications and there are obligations to avoid capturing communications that are not covered by the warrant.

Here's one way that could dramatically impact Internet users in New Zealand:

It then goes on to give the Minister the power to ban the resale of an off-shore telecommunications service in New Zealand if it does not provide interception capabilities. This could stop the resale of foreign-hosted VPNs, instant message services, email, etc.

Another clause could have major implications for Megaupload:

Network operators must decrypt the intercepted communications if they have provided the encryption, but there is no obligation to do so if the encryption is provided by others.

What does this mean for providers such as Mega (file locker) or LastPass (password storage) who have a business model based on the fact that they supply a cloud product that uses encryption but have deliberately designed it so that they can not decrypt the files themselves? This gives users the assurance that they can trust them with their data. Will the government close them down unless they provide a backdoor into the system?

One deeply troubling aspect is the following:

There is also a provision that allows the courts to receive classified information in a court case in the absence of the defendant or the defendant's lawyer. This applies to information that might reveal details of the interception methods used by the surveillance agency or is about particular operations in relation to any of the functions of the surveillance agency, or is provided as secret information from the surveillance agencies of another country. It can also be used if that disclosure would prejudice security of NZ, prejudice the maintenance of law, or endanger the safety of any person.

As Beagle notes:

particularly offensive to civil liberties are the provisions for convicting people based on secret evidence. How can you defend yourself fairly when you can't even find out the evidence presented against you?

He concludes with an important point:

One must ask where the justification for this expansion of power is coming from. Has New Zealand already been materially affected by attacks on our communications infrastructure? It seems clear that while the GCSB may not be that competent at exercising the powers they already have, they have done a fine job of convincing the government that they can handle a lot more.

That's a question that needs to be put to the governments of other countries, like the US and UK, that are also seeking to extend massively their ability to spy on their own citizens. What evidence do they have that such extreme, liberty-threatening powers are actually necessary, and will make the public safer, rather than simply being a convenient way for governments to identify whistleblowers who expose their incompetence and corruption, say, or to spy on those who dare to oppose them?

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Filed Under: communications, encryption, gcsb, new zealand, secret evidence, snooping, surveillance, vpns, wiretapping

New Zealand To Ban Software Patents 'As Such'; Tries To Pin Down What On Earth That Means

from the can-we-just-pass-a-law-now? dept

Few patent sagas have been as fraught as New Zealand's attempt to revise its laws to exclude software. Techdirt first wrote about this move in March 2010, and again in June 2010, when it seemed that lobbyists had convinced the New Zealand government to reverse its position and allow software patents. Then, a month after that, word was that software would indeed be unpatentable. Things went quiet for a while, until a new version of the proposed law was unveiled by New Zealand's Commerce Minister Craig Foss, apparently weakening the bill once more:

His amendment has changed some crucial wording in the bill that some say has the government moving away from excluding software from being patented (as per select committee recommendations), to parts of the bill being sufficiently vague that software may indeed become patentable. Clause 10a of the supplementary order paper 120 was amended to read: "..prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such"

The two words "as such" tacked on at the end there are precisely the same as those that are found in Article 52 of the European Patent Convention that also excludes software patents:

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

…

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

…

(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

As that makes clear, "programs for computers" are not regarded as inventions, and are therefore ineligible for software patents in Europe. But that only applies to programs "as such": the trouble is, nobody really knows what those two words mean in this context, which has allowed lawyers to obtain thousands of software patents in the EU on the grounds that they weren't software patents "as such".

The appearance of precisely these same two words in the draft of New Zealand's patent law was naturally deeply troubling for the local software industry, since they threatened to provide a way to circumvent the ban as they had in Europe. And so another round of lobbying began, as reported here by Guy Burgess in an informative post on the subject:

The local IT community mounted a concerted pushback on the unclear "as such" amendment. An industry petition (backed by key groups IITP, InternetNZ, NZRise and NZOSS) was set up and gained wide support. The petition called on the Government to remove the ambiguous "as such" language, and replace it with a simpler clause that clarified the underlying intention. Labour's Clare Curran adopted the petition's proposed alternative clause as an official proposed amendment to the Patents Bill, and other MPs and parties, including United Future MP Peter Dunne, also raised concerns about the lack of clarity in the Bill.

To its credit, and thanks to the concentrated efforts of many people and not inconsiderable political pressure, the Government decided to take another look at the Bill and has now put forward a new amendment.

The section dealing with software in the most recent version of the Patents Bill (pdf) still includes the vexed words "as such", but it now tries to clarify what exactly they mean here:

Helpfully, it adds two examples into the Bill - one for a software patent application which may be granted, and one which should be declined. Examples in legislation are a good way to demonstrate how a section is intended to be interpreted. The "valid" example is of a washing machine that uses embedded software.... The "invalid" example is of a software process for automating company incorporation. It includes the key comment: "The mere execution of a method within a computer does not allow the method to be patented."

Importantly, the explanatory note has been enhanced to make the intention of the Bill very clear, including the following comments: "... where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program".

Given all the problems with the phrase "as such", it would have been easier to omit it completely, rather than resort to well-meaning but necessarily limited attempts to clarify it through examples. Burgess offers an interesting explanation of why that didn't happen:

It appears that the concern was whether doing so would open New Zealand up for a legal challenge for allegedly not meeting its TRIPS treaty obligations. By aligning the law with wording from another jurisdiction [the EU] that hasn't been challenged, it provided some comfort that New Zealand would be safe. Whether or not this would have happened is moot now - it was a significant enough concern to the powers that be for the above approach to be adopted.

That's certainly a fair point; let's hope it means that the latest wording won't need changing again, and that the updated bill banning software patents finally gets passed.

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Filed Under: new zealand, patents, software patents

Eric Holder Answers Question About Kim Dotcom Prosecution

from the blah-blah-blah dept

Attorney General Eric Holder was in New Zealand for a meeting of Attorneys General from the US, New Zealand, Canada, Australia and the UK. Radio New Zealand got to meet up with Holder and after asking him about the meeting proceeded to ask him about the Megaupload case (mp3), which the interviewer noted was of great interest to New Zealanders.

Holder, in his usual fashion, answers with generalities that don't actually answer the questions being asked. He gives his standard "intellectual property theft = bad!" speech:

Well I don't want to comment on a case that is pending. But I will say, more generally, that we are very concerned about the theft of intellectual property. It's something that we take very seriously, both in the United States, and I think our allies do as well. With regard that case, we've been cooperating with the New Zealand authorities. And I will just rely on the pleadings we have filed in court to talk about that.

First of all, we've pointed this out before, but you would think that the supreme "lawyer" for the government would know the damn law. There is no "intellectual property theft." That's a made up term by copyright maximalists. There is such a thing as copyright infringement, which is what he means. He should use the actual term. Otherwise it does make him look like a pawn of Hollywood.... Which leads right into the next question. The interviewer notes that Kim Dotcom has been saying that the case is all about the DOJ "heeding the beck and call of Hollywood moguls." Holder immediately responds:

Well, that's not true. I don't want to comment on that case other than to say that it was brought on the basis of the facts and the basis of the law and it's consistent with the enforcement priorities that this administration has had.

Well, yes, the enforcement priorities that have heavily been pushed for by Hollywood.

The interviewer notes the various screwups in the case, and Holder doesn't bite, saying that there's been good collaboration and they expect everything to turn out fine in the end. The next question is about how serious Holder is about pursuing extradition, and Holder makes it sound like no big deal:

We have made an extradition request. We have an existing treaty between the US and New Zealand that has been used a great many times throughout the years. And I don't see how any individual would not be subject to that treaty.

Uh.... that's a bullshit answer. Because the problem with the extradition issue is not whether or not Dotcom is subject to it, but whether or not the issues in the case are subject to it. The DOJ had to bolt on some questionable conspiracy claims to make this work, since mere copyright infringement is not an extraditable offense. Holder also responded to a question about New Zealand's attempt to spy more on citizens and residents by saying he doesn't see how that violates civil liberties. When questioned on that, he throws out some random statement about cooperation to stop terrorism, and again says that spying on people doesn't need to violate civil liberties.

Filed Under: copyright, copyright infringement, eric holder, extradition, kim dotcom, new zealand
Companies: megaupload

New Zealand Wants New Spying Powers To Legalize Illegal Spying On Kim Dotcom And Others

from the i'm-sure-that-will-go-over-well dept

You may recall that in the course of the case against Kim Dotcom in New Zealand, it was revealed that the New Zealand intelligence service, the Government Communications Security Bureau (GCSB), illegally wiretapped and spied on Kim Dotcom. The GCSB's mandate is that it can only spy on foreign communications, but used its powers illegally domestically. While NZ prime minister John Key apologized for the episode, it has raised lots of questions about his role in the whole matter -- and when he knew the law was being broken. Other info has come out as well, including attempts to cover up the illegal surveillance, and the fact that the GCSB illegally spied on nearly 100 people. Dotcom is now suing the government over this whole mess.

Given all that, you might think that PM Key would be focused on putting in place safeguards to stop the system from being so abused in the future. Not so. Instead, as reader aster points out, Key is now trying to change the law to make it easier to spy on citizens and others in the country. In other words, he's seeking to legalize domestic spying for the intelligence agency. The new proposal would allow for domestic spying on citizens and residents if approved by PM Key. As if he didn't already appear untrustworthy in the matter, he's now suggesting that because it has to go through him, it'll somehow avoid abuses? Opposition politicians are pointing out how laughable it is that Key is now asking people to trust him personally that such spying powers won't be abused.

Filed Under: gcsb, john key, kim dotcom, new zealand, privacy, spying, surveillance

Investigation Into Illegal Spying On Kim Doctom Reveals NZ Intelligence Illegally Spied On 85 People

from the oops dept

Remember how the New Zealand intelligence organization GCSB (Government Communications Security Bureau) had to admit that it had illegally spied on Kim Dotcom? That kicked off an investigation that has now revealed that the GCSB illegally spied on somewhere around 85 people.

GCSB director Ian Fletcher said in February that his agency did not illegally spy on anyone else on behalf of law enforcement agencies.

But the Kitteridge report contradicts this - questioning the lawfulness of GCSB surveillance involving 85 New Zealanders. The agency is forbidden from spying on anyone with citizenship or permanent residence here.

The illegal spying was conducted between April 2003 and September last year and done on behalf of the Security Intelligence Service, the domestic spy agency.

But wait... there's more. The report also found that it's likely GCSB violated other laws as well, including the Privacy Act and the Defence Act. Not surprisingly, the report also finds a mess of an agency with terrible management, poor record-keeping and little oversight. Shocking, isn't it, that such conditions would lead to abuse of power and illegal surveillance, huh?

Filed Under: gcsb, kim dotcom, new zealand, spying, surveillance

Kiwi Three Strikes Tribunal Fines Soldier Who Was Serving In Afghanistan When Infringement Happened

from the manifestly-unjust dept

G Thompson was the first of a few of you to send in this story about the latest "three strikes" Tribunal hearing in New Zealand, in which the Tribunal ruled against a guy, despite the fact that he was a soldier in the NZ Armed Forces and deployed in Afghanistan at the time the various accusations of infringement occurred. Upon getting the third strike, having just returned from his tour of duty, he sent the tribunal a letter, noting that it was impossible for him to determine who had actually infringed, as he was away fighting for the country and there had been a number of flatmates in the place during the time of the accusations, such that it could have been any one (or multiple ones) of them downloading infringing material. Still, he agreed to "accept responsibility" because it was his account. That's an honorable thing to do, though it's simply ridiculous that he should have to do that, since he is clearly not at fault.

I have just returned from deployment overseas [in] Afghanistan and was not aware of music being downloaded. It is very difficult to determine who in the household is responsible for downloading music as flatmates are currently deployed around NZ.

However I understand entirely that I am the person who is held liable for these actions. I have spoken to the pers [sic] who have access to my internet IP address, and between 8 pers, we cannot determine who is fully responsible.

I ask that this notice be a lesson to those in my household as they now understand how severe the consequences may be for committing such an act. I do not wish this situation to grow any more than it needs to be. I am currently going through transitioning from military life in Afghanistan to life back home in NZ, and I'm not fit to tackle this allegation made against me.

However, I take full responsibility for the acts committed under my IP address and wish for this to be resolved asap. I am willing to co-operate by any means required of me.

And yet... the Tribunal still made him pay $255.97, despite not doing anything. The breakdown was $200 to reimburse the RIANZ for the application against him, $50 in fees, and another $5.97 for the "price" of the 3 songs on iTunes. Of course, since he wasn't the one who downloaded the songs in the first place, it seems ridiculous that he should have to pay for those songs, let alone the various other fees.

As Rick Shera points out in the link above, the Tribunal even acknowledged that it could override the automatic fine by claiming such a ruling would be "manifestly unjust," but bizarrely chose not to. Shera questions under what circumstances the Tribunal would ever use that ability if it didn't use it in this case:

So, it was open to the Tribunal to decide in these circumstances - soldier overseas, no way of knowing who infringed and therefore no ability to recover any award, admitted responsibility - that to make an award was manifestly unjust. Remember that it is unjustness to the account holder (the soldier in this instance) that is relevant not any unjustness to or cost incurred by the copyright owner. Difficult for the Tribunal though without any argument on the point being presented by the Respondent.

I have said before that trying to show manifest unjustness will be extremely hard, especially given the presumption of guilt in section 122N and the fact that an account holder is liable for all actions taken using its account. I think this case underlines that. I find it hard now to imagine any circumstance that will invoke this protection for an account holder.

Filed Under: afghanistan, copyright, liability, new zealand, three strikes, tribunal
Companies: rianz

Kim Dotcom Allowed To Sue Kiwi Government For Illegal Spying

from the and-off-we-go dept

You may recall that last fall, the New Zealand government admitted that its equivalent of the NSA, the Government Communications Security Bureau (GCSB) had illegally spied on Kim Dotcom for US law enforcement. Like the NSA (in theory), the GCSB is not allowed to spy on people domestically. But they did exactly that. Now the other shoe has dropped, as Kim Dotcom has been allowed to sue the government over illegal surveillance, for which Dotcom may receive compensation. The NZ government had tried to argue that it was "inappropriate," but a court has rejected that idea. This also means that Dotcom (and his lawyers) will be told what information was captured and who it was sent to -- though the actual documents won't be shown to him.

Filed Under: gcsb, kim dotcom, new zealand, privacy, surveillance

Early Lessons From New Zealand's 'Three Strikes' Punishments

from the you-call-that-justice? dept

New Zealand has the unhappy distinction of being in the vanguard of using the "three strikes" approach of punishment for people accused of sharing unauthorized copies online. As in France and the UK, this was brought in without any preparatory research to ascertain its effectiveness, and without any real thought about the practical implications. That makes a post by Susan Chalmers on the blog of InternetNZ, a "non-profit open membership organisation dedicated to protecting and promoting the Internet in New Zealand", particularly valuable.

It's entitled "Early Lessons from the Copyright Tribunal", and looks at the first two cases that have come before the New Zealand body responsible for implementing the three strikes law (recently, a third one has been added.)

It's full of fascinating details, and is well-worth reading for the insights it gives into the realities of the three-strike approach in New Zealand. Take the following, for example:

Both were caught illegally uploading songs. The specific "wrong" here according to the Copyright Act is that only the copyright owner can "communicate the work to the public". The law appears to presume that when your BitTorrent client allows other P2P users to download from you, then you are communicating that work to the public, even though that “public” could in fact be one person

That might seem a mere technicality, but as Chalmers points out, it isn't:

The written decisions showed that the account holders had a limited understanding of the technology they had been punished for using. Neither account holder seems to have understood that when you download a file, the client will automatically start uploading it to peers who request it. This goes to suggest that the account holders didn't know what their computer was doing was wrong (though they may have understood that downloading was wrong).

Again, this isn't a minor detail, because of perhaps the most problematic aspect of the three-strikes approach:

The law inverts the age-old principle (you know, that one that's essential to due process and a democratic society) that a person is "innocent until proven guilty". In a normal copyright infringement case that occurs in a court of law, the burden is on the copyright owner to prove that the alleged infringer infringed.

Under Skynet, the burden is on the alleged infringer/account holder to prove that they did not infringe. Specifically, they have to contest each of the three infringements listed on the notices.

Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined. With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.

As Chalmers emphasizes:

We have to be immensely careful that in developing novel legal standards and processes to protect copyright owners in the online environment, we do not gloss over the basic safeguards that should be provided to people under a fair legal system.

On the basis of these early cases, and the clear bewilderment and helplessness of those accused, it would seem that this is simply not happening. It will be interesting to read a similar analysis once more people have been processed by the system.

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Filed Under: early lessons, new zealand, three strikes