This Court recently ordered the unsealing of the documents previously submitted by the United States to support taking down the Megaupload cloud storage site by seizing the domain name(s) --- such unsealing lays bare a crucial omission the Government made to the Court in the secret process.  Specifically, the Government’s affidavits underpinning the warrants omitted critical, exculpatory information regarding whether, why and how Megaupload knew it was hosting criminally infringing files.  The Government represented that, “[o]n or about June 24, 2010, members of the Mega Conspiracy were informed, pursuant to a criminal search warrant from the U.S. District Court for the Eastern District of Virginia, that thirty-nine infringing copies of copyrighted motion pictures were present on their leased servers at Carpathia Hosting, a hosting company headquartered in the Eastern District of Virginia,” and that, “[a]s of November 18, 2011, thirty-six of the thirty-nine infringing copies of copyrighted motion pictures were still being stored on servers controlled by the Mega Conspiracy,” after it was informed of the infringing content.... This snippet—which appears in each relevant affidavit and is the only direct, corroborated evidence the Government purports to offer as proof that Megaupload had requisite knowledge—suggests that Megaupload was warned of its potentially criminal complicity yet persisted in hosting the files without concern for their illegal content.  The affidavits, in short, paint Megaupload as a brazen scofflaw. 

The truth, as the Government well knows, is quite different.  Megaupload had every reason to retain those files in good faith because the Government had sought and obtained Megaupload’s cooperation in retrieving the files and warned that alerting users to the existence of the warrant and the Government’s interest in the files could compromise the investigation.  Carpathia informed Megaupload that the warrant was sealed, and that only Carpathia and Megaupload, not the users of the infringing files, were to know of its existence, and at the Government’s request provided Megaupload a copy of the sealing order. The Government selectively parsed its account so as to exclude critical facts that negate any notion that Megaupload had criminal mens rea to retain the infringing files.  The Government deliberately neglected to apprise the Court that:

•       Megaupload received the June 24, 2010 warrant in the course of cooperating with a Government investigation; 
•       Megaupload was informed of the June 24, 2010 warrant by its vendor, Carpathia Hosting (“Carpathia”), with the Government’s consent and for the express purpose of obtaining Megaupload’s voluntary assistance with executing the warrant;
•       The Government declined to communicate directly with Megaupload about the warrant, instead deputizing Carpathia to communicate on its behalf;
• Carpathia directed Megaupload not to open “EM7 tickets” on the infringing files—which would have alerted a larger number of people to the existence of the warrant and jeopardized the secrecy of the investigation—“[b]ecause of the Government’s seal on the warrant,” asking that Megaupload instead deal directly with a single person at Carpathia;
• Megaupload’s preservation of the status quo, particularly by not taking down or otherwise disturbing the files identified in the June 24, 2010 warrant, was faithful to the Government’s express desire, reflected by the Magistrate Judge’s order sealing the warrant (provided to Megaupload by Carpathia at the Government’s request) and by Carpathia’s instructions on the Government’s behalf, for Megaupload to ensure that evidence would remain preserved and that the target users would remain unaware of the investigation; and
• Consistent with its stated desire that the warrant and investigation remain confidential so as not to tip off the target users, the Government—neither directly nor through Carpathia—ever requested that Megaupload take down the files identified in the June 24, 2010 warrant.

Nowhere did the Government tell this Court that its June 24, 2010 warrant had been calculated to enlist good-faith cooperation with a criminal investigation, while preserving the secrecy thereof. Nowhere did the Government tell this Court that the Government had sought Megaupload's voluntary assistance in executing the warrant. Nowhere did the Government tell this Court that Carpathia had assured Megaupload, in the interests of its requested cooperation, that there was no basis to believe that Megaupload was a target. Nowhere did the Government tell this Court that Megaupload had in fact cooperated precisely as requested. Most importantly and most troublingly, nowhere did the Government tell this Court that Megaupload had been informed by Carpathia, acting on behalf of the Government and heeding the Government's insistence upon sealing, that the secrecy of the warrant and the Government's investigation must be preserved to avoid destruction of evidence and notification of the targeted users. Nor did the Government inform this Court that the sealing order it had obtained and furnished Carpathia to provide to Megaupload likewise required secrecy and expressly specified that [redacted ]. In sum, nowhere did the Government tell this Court that Megaupload had done exactly what the Government had asked it to do--execute a search warrant without alerting the ostensible targets to the existence of an investigation. The Government's contention to this Court that Megaupload's preservation of the status quo was evidence of criminal intent is false, and deliberately so.

.... these materials will certainly assist him to learn what steps, if any, the government took to inform the court of the scope of its planned seizure and related execution of search warrants. They would also show any plan provided by the government or the court in the warrant materials for minimization to protect innocent users before the seizure or to segregate the data after seizure. Federal judges increasingly impose detailed conditions prior to execution of computer searches.... For example, Judge Kozinski in the Ninth Circuit has observed that if the government refuses to forswear the ability to retain or use data that should have been segregated initially, the judge “should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.” .... Unsealing will allow Mr. Goodwin, as well as the general public, to learn which, if any, such conditions were undertaken in this case.

Similarly, under the Fourth Amendment people have a right to be secure in their “papers” and “effects” against unreasonable searches and seizures. A person's “effects” may be the subject of Fourth Amendment protection even where there is no particular privacy or liberty interest.... A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.... The Fourth Amendment analysis, in turn, requires the Court to determine whether the seizure was “reasonable.” Gaining access to the materials that served as a basis for the government’s seizure of his property can assist Mr. Goodwin and other innocent Megaupload users in determining whether the seizure was unreasonable.

The public also has a strong interest in understanding the government process in executing search warrants on cloud computing servers that contain innocent third-party property. Seizures of domain names, and resulting searches of related servers, are tools the government is using with increasing frequency in criminal copyright enforcement actions. For example, the federal government has reportedly seized more than 800 websites so far under its Operation in our Sites campaign. The government has issued press releases and otherwise sought to publicize its efforts, obviously giving its own perspective on its actions. Legislators, the media, and the public are vigorously debating the very issue of these domain name seizures and related searches, even as a large percentage of Americans continue to use cloud computing services. Access to judicial records would ensure a more accurate and informed public debate, rather than one informed merely by the government’s press releases

It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.

"If you asked most Americans, I think they would tell you that surreptitiously turning somebody's cell phone into a modern-day tracking device ... and using it to monitor their movements, 24/7, is a pretty serious intrusion into their privacy, pretty much comparable to searching their house or tapping their phone calls."

Mr. Calixte uses two different operating systems to hide his illegal activities. One is the regular B.C. operating system and the other is a black screen with white font which he uses prompt commands on.