Unsealed Megaupload Seizure Warrants Reveal Use Of Flawed Logic... And An 'Undercover Computer'

from the did-it-wear-a-mustache dept

Last month, we wrote about how the EFF, representing Kyle Goodwin, had asked the US district court handling the Megaupload case to unseal the warrants for the seizures of Megauploads domains and servers. The court has now ordered the documents unsealed. To be honest, there isn't too much surprising in them. There are some huge leaps to assume that hosting a cloud service somehow makes you criminally liable for what people do on that service. In fact, part of it ridiculously argues that the "proof" of criminality is the fact that the DOJ had alerted Megaupload to some infringing files, and those files had not been taken down. However, as Megaupload's lawyer points out, the "alert" was in the form of asking for cooperation, which Megaupload granted, and not to "interfere" in the investigation. Taking down the videos would be interfering. Megaupload's lawyer, Ira Rothken explained to CNET:
"MegaUpload was served with a criminal search warrant for alleged third-party user conduct and was advised not to interfere with that criminal investigation or with the files -- as such disclosure, would jeopardize the ongoing investigation. To ask MegaUpload to cooperate and then use that cooperation against them, to us seems to be both unfair and misleading."
Most of the argument in the warrants is just repeating the already questionable claims in the indictment -- which is what you'd expect. They're also not all that different from previous domain seizure requests -- with a few notable exceptions. First, you'll notice that the special agent who conducted the investigation has all personal information redacted. Apparently the Justice Department would prefer that its agent not receive the ridicule that the agent who made myriad mistakes in earlier domain seizures received.

But what was really amusing was the description of the investigation, which apparently involved an "undercover computer."
Using an undercover computer, [redacted] observed how a visitor may view content hosted on Megaupload.com. For example, on November 20, 2011, [redacted] observed the copyrighted picture "Zack and Miri Make a Porno," which was released in 2008 by The Weinstein Company, on the website Megavideo.com.
I'm still trying to figure out just what an "undercover computer" is -- and where I can buy one. Also, seems kind of random to choose Zack and Miri as the sample file to download -- especially given the director/writer of that particular movie, Kevin Smith, has talked extensively about how he believes "piracy" actually helps him gain more fans. Yes, the film's copyright is held by The Weinstein Company -- whose owners appear to have a slightly less enlightened view of infringement -- but it still seems like an odd choice.

In addition to those oddities, there are some other claims within the filings that don't make much sense. They make the argument that seizure is necessary with claims that are, simply speaking, not true:
Neither a restraining order nor an injunction is sufficient to guarantee the availability of the Subject Domain Names for forfeiture. By seizing the Subject Domain Names and redirecting them to another website, the United States will prevent supporters of the Mega Conspiracy or third parties from redirecting the Subject Domain Names to servers elsewhere in the world, and thus using them to commit additional crimes. Furthermore, seizure of the Subject Domain Names will prevent visitors from continuing to access the websites located at the Subject Domain Names.
To put it simply: that makes no sense. Either a restraining order or an injunction would, in fact, prevent those other things from happening. Yes, Megaupload could have ignored the two, but then it would face additional charges for ignoring the court. Given that Megaupload had repeatedly engaged in various lawsuits against it in the US before, there was simply no evidence that Megaupload would directly ignore the court and, as such, face additional charges.

Finally, the documents also show the DOJ's request for these documents to be sealed. You can understand why they wanted the warrants sealed prior to the takedowns and arrests happening. But those all took place within a week of the seizures being approved by the judge. There was no reason to keep them under seal. Yet the DOJ claims that it "has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation." That is, of course, empirically and definitively false because we've now seen the unsealed and redacted document and they do nothing to endanger the investigation (other than, perhaps, revealing the weaknesses of the DOJ's arguments).


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Loki, Nov 16th, 2012 @ 6:51pm

    You've got to appreciate the sheer irony of using a film by one of Hollywood's harshest critics as proof Hollywood needs protecting.

     

    reply to this | link to this | view in thread ]

  2.  
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    xploder (profile), Nov 16th, 2012 @ 6:53pm

    looks like a week case now

    as a KIWI i am now shocked to see that most of this case is hype, and not just by dotcom.
    if this is all the evidence, then we as kiwis owe dotcom an apology, and you yanks owe him a alot of money.

    xploder

     

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  3.  
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    X, Nov 16th, 2012 @ 6:54pm

    I could tell you what an undercover computer is and where to get one, but then I'd have to [REDACTED] you.

     

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  4.  
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    That One Guy (profile), Nov 16th, 2012 @ 7:09pm

    Simple enough really

    An 'undercover computer' is simply what they called it to spice things up.

    If they had said 'Agent X used a computer to gather evidence', that almost sounds clerical. However if instead it's 'Agent X used an undercover computer to gather evidence', why, that almost sounds straight out of a spy movie! And given who was giving the orders for the whole thing, of course they wanted it to look as flashy as possible!

     

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  5.  
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    Anonymous Coward, Nov 16th, 2012 @ 7:12pm

    Re:

    h, well [REDACT] you pal.....[REDACT] you all to hell, you dumb sum'of'a [REDACT]

    :) js kd

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 7:17pm

    Undercover plant

    What they don't reveal is that a different "undercover computer" likely uploaded the very same infringing video that the other "undercover computer" downloaded.

    Just like the FBI creating terrorist plots to thwart, what proof is there that Hollywood hasn't done the same thing here.

     

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  7.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 7:18pm

    Undercover computer

    Could it be.......no, im just imagining the worse

    http://www.youtube.com/watch?v=7qnd-hdmgfk

     

    reply to this | link to this | view in thread ]

  8. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Nov 16th, 2012 @ 7:32pm

    After milking this so long, you got bupkus.

    "To be honest, there isn't too much surprising in them." -- Yot. For once you're right.

    "There are some huge leaps to assume that hosting a cloud service somehow makes you criminally liable for what people do on that service." -- It's a clever dodge, but no, Mike: the people at Megaupload are responsible for what THEY did. It's beyond belief that they didn't have a clue there was copyrighted material on the sight when the least glance at filenames should have prompted a look. They've SOME responsiblity to spot-check here and there: it's absent. You're maintaining their sheerly legalistic fiction that they're entirely innocent, clueless aobut their own biz. Add in getting income from the draw of someone else's valuables, and it's an easy moral case, even if pesky law isn't yet ready to handle the loopholes in copyright. But as I told you last year, Big Media ain't gonna stand still and let that go on forever.

    "Neither a restraining order nor an injunction is sufficient to guarantee the availability of the Subject Domain Names for forfeiture." -- Now, Mike, at other times you'd brag that Pirate Bay has conclusively shown that true, keeps popping up while being chased.

    BTW: Dotcom's recent statements about using encryption and making it more difficult for DOJ next time should get his bond canceled and him into jail for the interim.





    All hail Mike "Streisand Effect" Masnick!
    http://en.wikipedia.org/wiki/Streisand_effect
    To properly honor Mike, I propose "Masnick Defect" as term for out-of-bounds self-aggrandizement such as years of trying to turn a single quip into fame.

     

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  9.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 7:46pm

    Re: After milking this so long, you got bupkus.

    Ahh, it's OOTB. I thought you had crawled back under your rock. What an ignorant schmuck. By your logic, I can go steal a watch from a jewelry store, and hide it in a gym locker. Then you'd go after the gym's owners claiming they are to blame because they should not only know the contents of every locker, but also who the rightful owners of each and every item are.

    Your handlers should find someone a little smarter to spin their bullshit a little more intelligently.

     

    reply to this | link to this | view in thread ]

  10.  
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    JoeCool (profile), Nov 16th, 2012 @ 8:11pm

    Protecting the investigation

    Yet the DOJ claims that it "has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation." That is, of course, empirically and definitively false because we've now seen the unsealed and redacted document and they do nothing to endanger the investigation (other than, perhaps, revealing the weaknesses of the DOJ's arguments).


    You got it right there at the end - it DOES endanger the investigation... it's in danger of being laughed right out of the courts.

     

    reply to this | link to this | view in thread ]

  11.  
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    Donnicton, Nov 16th, 2012 @ 9:08pm

    Re:

    I keep picturing a desktop computer wearing a Trench-coat and a Fedora.

     

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  12.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 11:15pm

    Re: After milking this so long, you got bupkus.

    Of course Masnick was right. The case is a complete sham, and the DOJ is proving Dotcom's case for him.

    Honestly, the fact that the government is willing to demand that other countries deploy SWAT teams on people without warning would give anyone a reason to go into further hiding. I think, in fact, that I'll do just that. Want to sic your precious DOJ on me?

    "Pesky law"? Tough tits. You argue that it's immoral precisely because it's against the law. If the law doesn't cover it, it's not immoral and it's definitely not illegal.

    Want to know why you don't have $100 million dollar movies, out_of_the_ass? They go to pay for laws that you masturbate to, you walking industry cum dumpster.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Nov 16th, 2012 @ 11:24pm

    A Red Fedora

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Nov 17th, 2012 @ 1:19am

    Re:

    rape?

     

    reply to this | link to this | view in thread ]

  15.  
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    The eejit (profile), Nov 17th, 2012 @ 1:48am

    Re: Re:

    Mine is wearing a balaclava and is wielding a switchblade, cloak clock and a screensaver that matches its surroundings.

    Oh, and it keeps trying to stab me in the back.

     

    reply to this | link to this | view in thread ]

  16.  
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    The eejit (profile), Nov 17th, 2012 @ 1:51am

    Re: Protecting the investigation

    I'm surprise dit hasn't been set-up for an assassination yet. Plausible deniability and all that jazz.

     

    reply to this | link to this | view in thread ]

  17.  
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    That Anonymous Coward (profile), Nov 17th, 2012 @ 2:00am

    After all of this time and waste of resources... why are we still waiting for evidence?

    But then even with emails admitting how deep the corruption was a GS, they found no evidence of wrong doing... but where there was no wrong doing in the Mega case they invented bunches.

    Justice... You're doing it wrong.

     

    reply to this | link to this | view in thread ]

  18.  
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    That One Guy (profile), Nov 17th, 2012 @ 2:21am

    I couldn't resist...

    I take it then you got an Apple and didn't uncheck the 'Have computer act like the executives and legal department' option when you ordered?

     

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  19.  
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    Violated (profile), Nov 17th, 2012 @ 3:57am

    I was left wondering about those files months ago so if Mega can prove an investigate said not to touch them then the DoJ really have no case. Not following the law and only making a request won't help them either.

    Well I am now starting to believe that NZ could well deny extraditing them off to the USA. The FBI/DoJ now have such a small case that at worst he could get be fined and certainly not prison time or company shut down.

     

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  20.  
    identicon
    Anonymous Coward, Nov 17th, 2012 @ 4:11am

    Re:

    If it does all end in having to pay a fine I wouldn't be too surprised that the DOJ will insist that the fine be a minimum of say 500 million dollars to be used as a deterent for other businesses to get into the storage business.

     

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  21.  
    identicon
    Anonymous Coward, Nov 17th, 2012 @ 5:33am

    The revelation that [redacted] is a Twilight fan will seriously endanger this investigation. I canít fathom why that information wasnít redacted.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Nov 17th, 2012 @ 5:34am

    Re: After milking this so long, you got bupkus.

    "BTW: Dotcom's recent statements about using encryption and making it more difficult for DOJ next time should get his bond canceled and him into jail for the interim."

    Only New Zealand can cancel his bail and put him back into jail if it is warranted for them to do so but as he hasn't broken any laws in New Zealand then this will never happen.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    FuzzyDuck, Nov 17th, 2012 @ 5:42am

    Re: Re: After milking this so long, you got bupkus.

    Out_of_the_blue doesn't really come here for the discussion, more likely because he enjoys the virtual arse-raping he so deservedly receives here.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Pixelation, Nov 17th, 2012 @ 8:49am

    I love the term Mega conspiracy. There is a Mega conspiracy but it isn't being prosecuted.

     

    reply to this | link to this | view in thread ]

  25.  
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    Rikuo (profile), Nov 17th, 2012 @ 9:22am

    Re: After milking this so long, you got bupkus.

    I uploaded a file to Megaupload before the takedown. The file-name was "Most_Evil_Incest_Child_Porn_HD.mp4". According to you, just looking at the file name should have determined it was child porn.
    Actually, upon downloading it and double clicking it, shows it to be a JPEG, of someone winking and giving a one fingered salute.

    Why is it you remain completely incapable (and I do mean COMPLETELY) of formulating even a half-way decent argument in support of copyright? I mean...file names are supposed to be an indicator of copyright infringement? Really? Not only that, but Megaupload was supposed to do spot-checks? Last I heard, those who use lockers, whether cyber or not, are entitled to privacy. A company scouring its lockers, which are full of private information (whether infringing on copyright or not doesn't matter at that point) is in and of itself ILLEGAL.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    The eejit (profile), Nov 17th, 2012 @ 12:17pm

    Re: I couldn't resist...

    No, it came pre-loaded with BLU software.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    The eejit (profile), Nov 17th, 2012 @ 12:21pm

    Re:

    Because the Twihards in the DoJ wanted sparkly Dotcom.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    DogBreath, Nov 17th, 2012 @ 12:24pm

    Re:

    After seeing the unsealed seizure warrants, I'm thinking it was more than likely this one:

    http://www.youtube.com/watch?v=1eA3XCvrK90

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    That Anonymous Coward (profile), Nov 17th, 2012 @ 11:13pm

    Re: Re:

    Stealing a companies servers, domain, finances by writing a fairy tale was much more effective than a huge fine.

    Look at poor Rapidshare, they have bent themselves into a pretzel to meet every single insane demand and they are still on the naughty list every freaking time.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Nov 18th, 2012 @ 5:52am

    Government monitoring

    I recently read of a case in which a guy was caught for child porn. He had taken his computer in to be repaired. Someone at the repair shop discovered the images and videos on his hard drive and turned him in to the FBI. He told the judge he had been downloading child porn for between 10 and 15 years.
    Now think about that. If he had been downloading it for 10-15 years and was caught only because of a computer repairman, maybe the government isn't monitoring the internet as much as some people think.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Nov 18th, 2012 @ 9:24am

    Re: Government monitoring

    This story will probably now give the government the amunition needed to come down more heavilly for internet monitoring.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    JMT (profile), Nov 18th, 2012 @ 1:10pm

    Re: After milking this so long, you got bupkus.

    "But as I told you last year, Big Media ain't gonna stand still and let that go on forever."

    As cheezy as it is to paraphrase from Star Wars, in this case it's quite appropriate. The more "Big Media" try to tighten their grip on control of content, the more consumers, customers and income will slip through their fingers. Those days are over, and it's the public that ain't gonna stand still and let that go on forever.

    "BTW: Dotcom's recent statements about using encryption and making it more difficult for DOJ next time should get his bond canceled and him into jail for the interim."

    Can you explain how making statements about future legal behaviour could possibly be used to have bail revoked? Your reasons should be entertaining if nothing else...

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Bubba, Nov 18th, 2012 @ 1:43pm

    Multiple flash objects to post the documents?



    jackasses.

     

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  34.  
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    The Groove Tiger (profile), Nov 18th, 2012 @ 4:51pm

    Re: After milking this so long, you got bupkus.

    See, this is how you properly blargha flargha.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Michael, Nov 19th, 2012 @ 5:56am

    Undercover Computer

    Obviously, an undercover computer is a computer masquerading and another computer.

    You can buy these from shady dealers on eBay. They are typically "Apple" computers of some kind. Frequently a MacBook that is made entirely of plastic with stick on apple logos.

    Search for "Louis Vuitton" and find a seller that also sells computers. You may even find a deal in which you get a very expensive handbag along with your high-end laptop. You may, however, have to wait for it to all ship from Hong Kong.

     

    reply to this | link to this | view in thread ]

  36.  
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    btr1701 (profile), Nov 19th, 2012 @ 11:16am

    Undercover Computers

    > I'm still trying to figure out just what an "undercover computer" is -- and where I can buy one

    It's simple. We have them in my agency, too.

    It's just a computer that doesn't trace back to the police or the government. Used in investigations where it's not desirable that the target know the police are visiting his site. The IP address routes through a commercial (rather than government) ISP and comes back to a fictitious individual. No different than an undercover phone line that doesn't pop up as "NYPD" or "Department of Justice" on the bad guy's caller ID.

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Nov 19th, 2012 @ 2:17pm

    Re: Undercover Computers

    You'd think that government employees who use P2P (Department Of Defense) or download child porn (Homeland Security, NSA) would use something like that.

     

    reply to this | link to this | view in thread ]


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