New Zealand's High Court Steps Into Extradition Fight Over Kim Dotcom

from the not-so-simple dept

As the Justice Department continues to pretend there’s nothing strange at all about its highly questionable tactics in shutting down Megaupload and having its executives arrested, the courts are still struggling with the details. A few weeks back, we noted that a judge in New Zealand rejected the US’s demand that New Zealand merely rubberstamp an extradition order to the US, despite there being numerous questions over the case itself and whether or not extradition is appropriate. As part of that, the judge also ordered the US Attorneys to hand over the evidence they’re using to make the case against Dotcom and his colleagues, such that they can properly respond to the evidence. The US, as you might expect has gone absolutely ballistic about this, insisting that such an effort is impossible — and that “it would take at least two months” to get the evidence together.

Of course, to some of us, that suggests that the DOJ hasn’t yet looked at the evidence — and thus it shut down the company and arrested its staff first, without even knowing if a crime had been committed.

Either way, that months-long delay presented a problem, since New Zealand had scheduled the extradition hearing for August 6th, and the Megaupload legal team deserved some time with the evidence to formulate its defense. The latest, however, is that New Zealand’s High Court has agreed to an “urgent review” of the original ruling. The court also told the US to start the process of putting together the evidence to hand over to Dotcom’s lawyers, but that it can wait until the High Court has reviewed the case before actually handing them over.

No matter what, this is once again showing the US’s hubris in this case — assuming it could waltz into New Zealand, with highly questionable evidence, shut down a company, and extradite the executives to the US without anyone asking questions. With each move in this case, more questions are raised about the competence of the DOJ staff who worked on this case, led by Neil MacBride — a former “anti-piracy VP” for the copyright industries, who may have let his biases and previous (and future?) employers’ interests get the best of him.

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Comments on “New Zealand's High Court Steps Into Extradition Fight Over Kim Dotcom”

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RonKaminsky says:

Re: Re:

My hope is that the court proceedings will uncover the brazenness of this behavior, which will enable, via some obscure quirk in NZ law, Megaupload to successfully sue one or both of the governments involved for damages.

Not holding my breath, however. It’s practically impossible, nowadays, for a significant amount of seized digital data to not include at least some amount of infringing material. My understanding, in this case, that that’s not a show-stopper, here, because the US gov’t is claiming that MU had no significant non-infringing use (?!), but my guess is that such infringing material would poison any attempt to find the enforcement process itself wrongful enough to give a basis for suing for damages.

Zos (profile) says:

Re: Re: Re:

not really, the data itself is almost irrelevant, unless Dotcom uploaded it himself. OFC some users used mega for infringing, what they have to prove is either willful action on the part of mega to facilitate it, or enticement to infringe as a busines model. or…something. First i guess they have to figure out if this should have ever been a criminal case at all, since they’re using civil law to support criminal actions…. screw it, doesn’t matter, the only question at this point is if NZ is going to bend over. They get him here he’ll go down for decades, if they have to make up a law to do it with.

Chargone (profile) says:

Re: Re: Re: Re:

unfortunately, under the current government, and after the previous government (assuming you count based on who is PM not based on election cycles) stripped the Privy Council (technically the monarch.) out as the final court of appeal and replaced it with something that parliament can more easily lean on*, the answer to that question is not as cut and dried as it might be.

‘course, under the previous government odds are good this never would have got off the ground. oh, they were willing enough to bend over for the US government in terms of it’s Goals… but methods? nope. play by the rules or not at all. (not that they wouldn’t shamelessly take advantage of the rules, but every step along the way would be legit.)

*no, the public did NOT approve. it was yet another ‘sneak it through without warning and only tell anyone about it after the fact’ law change. a chronic problem here that will not end until we actually get a governor willing to do their damn job. not that there’s any hope of That. (seriously, as constitutional monarchies go, NZ’s actually set up to be quite absolutist in a lot of ways… and then the monarch doesn’t rule directly, but appoints a governor, and then the governor abdicates almost all responsibility to parliament… leaving parliament with those absolute powers WITHOUT a counter-balancing power to keep it in line…)

Anonymous Coward says:

Re: Re:

In 2 months, the US case against Megaupload has come to look incredibly shaky.
By contrast, in the UK, the seizure of by SOCA: There seems to have been no news whatsoever, no news of charges being brought, nobody at all seems to be following up on it in any way, in the 4 months since the site was seized with bizarre talk about if ppl had downloaded music from the site they definitely had damaged the careers of musicians and veiled threats against anybody visiting the site.

[citation needed or GTFO] says:

Re: Its all BS

Agreed. This is taking WAAAAAY too long and honestly I’m getting tired of hearing about how MegaUpload is getting screwed by the US.

It’s a waste of everyone’s time and money for them to keep pushing this. Seriously, this happened back in January. It’s June now. Just let the defendants have equal access to the evidence so they can show once again how screwed up this entire case was to begin with.

It’s not that hard.

Anonymous Coward says:

Re: Re: Its all BS

Even if the US says it will take months to hand over their ‘evidence’, there’s a simple solution for the High Court. What they need to do is to demand that the responsible people in New Zealand hand over the evidence that was used to justify the shutdown in the first place. No arguments about jurisdiction, no arguments about what the DOJ needs to hand over, no lengthy delays…it’s simple and easy.

In theory, the DOJ should have given the NZ authorities enough evidence for them least to establish that the arrest was reasonable. Also in theory, there’s absolutely no reason why the High Court can’t gain access to that evidence. If it turns out that there wasn’t any actual evidence presented, or that the evidence didn’t provide reasonable grounds for the takedown/arrests, then I’m pretty sure that the whole thing qualifies as a violation of the NZ Bill of Rights…and the High Court has a much bigger problem than just the extradition hearing.

G Thompson (profile) says:

Re: Re: Re: Its all BS

Also the US has a bigger problem with the NZHC getting involved. If the Court decides that the USJ has committed wrongful acts in this case they can nullify any extradition attempt instantly, also they can set an order that any extradition attempts (or for that matter any cross jurisdictional cases that involve the USJ) must fully work with all procedures, rule, and laws of the respective jurisdiction.

This then will set a huge bar for the USJ in ANY Commonwealth country, as well as even the US itself, since the NZHC is classified as a judicial authority of weight in all countries .

It could be as bad for the USJ for future instances as the recent case that AFACT (as a proxy for the MPAA) lost in the High Court of Australia regarding iiNet.

I stated this at the beginning when Mega and Kim were charged. This is NOT going to end well for the USJ and that I also predicted it would have to go to the NZHC.

Maybe Neil MacBride (and his cronies) who IMHO is an incompetent egotist who has entitlement issues needs to be introduced to Restorative Maori justice 😉

Justin Olbrantz (Quantam) (profile) says:

Thank You, Come Again

It’s about time for NZ to release all defendants and their property, suspend the case, and tell the DOJ to come back when they’re ready to make a case.

This is not the US, and there is no Patriot Act in NZ. You can’t simply arrest people, seize property, and hold both indefinitely without council while you attempt to find something you can use to someday make a case that might potentially stand up in court.

Greevar (profile) says:


Me thinks that other nations have realized that the US government is run by a bunch of incompetent boobs that don’t deserve any more respect than the schoolyard bully. I’m ashamed to call myself an American. There used to be a time when being an American meant something. Now everyone sees us as obnoxious, moronic, bigoted, imperialistic ass-wipes. Welcome to America, brought to you by The Corporation.

Anonymous Coward says:

Re: Hmm...

Welcome to America, brought to you by Carl’s Jr.

(If you didn’t get that joke, please go watch Idiocracy. It’s an excellent documentary of the future of the United States of America. There’s also a scene in there that I’m convinced was the inspiration for Windows 8’s Metro interface, but that’s beside the point.)

Mason Wheeler (profile) says:

Re: Re: Hmm...

Umm? The Metro interface is clearly inspired by iOS. Microsoft’s been ripping off Apple on user interface matters since day 1. They’ve been doing it so long it’s all they know how to do, so now they’re blindly following Apple off a cliff, copying a horrible (albeit popular) product and thinking that pasting its horrible interface into everything will make their product more popular.

Chargone (profile) says:

Re: Re: Re:

further, there’s good odds the current administration was meddling in the process. they’ve managed to establish themselves a bit of a reputation as dishonest, incompetent, unwilling to listen to the public if they can possibly get away with it, and quite prone to supposedly doing what the public wants then later, quietly, changing it Back to the thing everyone was protesting against without any mention making it’s way into the news until after the fact, if at all.

as has been pointed out quite often, the current administration has a majority in parliament (just, barely, squeeked it.), but it has no mandate.

(meanwhile it’s pushing HARD for the one thing even it’s Own Supporters hated… the PM keeps trying to claim that people voted for it knowing they were going to do the asset sales thing, he won the election, thus they have a mandate to do it. missing that even their own supporters were against That part of their plan, even when otherwise supporting them and considering all other parties to be much worse. a 50%+1 (or maybe 2) majority does not a mandate make when a record 1/4th of the electorate DID NOT VOTE, you got TIES in some electorates, came close enough in others that it had to be disputed in court or whatever due to error margins, and even the people who supported you are speaking out against what you’re claiming to have a mandate to do! meanwhile, the whole mega-upload thing is bleeding national of the saner portion of it’s voter base (the ones who actually think) due to all sorts of different parts of it’s handling. the only people who actually Support the government/US on this are the sort of rabid crazies who think ANYTHING that isn’t going exactly how their perfect party wants is due to ‘whinging and ignorance’ on the part of some nebulous ‘left’… never mind that their so called ‘left’ makes up closer to 3/4ths of the electorate and parliament than 1/2 when nothing suspect happens with the elections and economically only has ‘National and ACT need to stop being idiots and trying to copy the Failed US model’ in common. )

gah. rant got away from me again. i’m not good at staying on topic at all, am i?

Chargone (profile) says:

Re: A quick fix, and a great way to seriously stymie the USG...

put it this way: the current government is on thin ice as it is. if the high court does anything Other than that or forcing the US to hand the evidence over to the defendant (and tossing the whole case if they refuse), if it looks in ANY way like there was undue influence from the government here (and it will, whether there is or not) …

let’s just say, combined with the asset sales, the curren’t government’s odds of staying in power are pathetic.

that said, given who’s in it, the asset sales make sense in light of that… they try to run the country like a corporation, and their leadership is known for being of the mindset that ‘asset stripping things then selling the failing husk on is totally legit business’ and the like… guess that would explain the asset sales…

added bonus: they’re putting serious effort into breaking the school and social welfare systems too. (the social welfare system has issues that are basically unfixable without a fundamental shift in how the government views the economy and economics as a whole, however. and just tossing it entirely would probably collapse the government far more easily than the so called ‘constitutional crises’ which would supposedly happen should the GG actually do their job…)

Anonymous Coward says:

The US is fucked. It's as plain as the nose on your face.

Obama just wants his so-called justice department to delay until after the next us presidential election, so that the mafiaa doesn’t turn against his party financially before the election. Then the case can fall apart and quietly go away.

Obama needs wall street’s money and the mafiaa’s money.

US elections are a joke and the people don’t give a shit.

Business owns their political system and peoples’ choices are between bad and badder.

PapaFox (profile) says:

Understand exactly what the DOJ is appealing

There are two piles of evidence in this case. The first was gathered by the DOJ over a number of years and most notoriously includes many petabytes of Megauploads customers’ data located in Virginia (hence the involvement of Neil MacBride, the US Attorney for the Eastern District of Virginia).

The second pile of evidence is that siezed by the NZ Police, acting of a request from the US DOJ. This includes 150TB of disks containing Megaupload corporate data and emails. It is this second pile of evidence which Judge Harvey ordered the NZ Crown Prosecutor to copy and make available to Kim Dotcom and his defence team. While there is an assumption that the NZ prosecutors are acting as sock puppets for the US DOJ, the court orders do not name or apply to any US entity.

So, it is pretty rich for the US DOJ to claim that a defendant before a NZ court should not have access to evidence seized and located in NZ until the defendants surrender to the jurisdiction of a US court.

Now I guessing, but I am assuming that the DOJ did not have access to most (if any) of that data before it filed the case against Megaupload. The DOJ has said that the among the 150TB of seized data is “10 million emails and a large amount of financial data”. So clearly, it would like enough time to enhance (or perhaps prepare?) its’ case using those emails and financial data while at the same time stopping Megaupload from preparing its defence.

The role of judges is to pick winners and losers, and help winners win while making losers lose. However, most judges have a strong commitment to fairness and due process. They also have have open minds. So even for a certain winner (the vast, vast majority of extradition cases are approved), if they are caught placing a fat greasy thumb on the scales of justice, the Judge may decide to make them a loser.

That Anonymous Coward (profile) says:

Re: Understand exactly what the DOJ is appealing

A problem with one of your evidence piles.
DoJ walked into Carpathia, locked down the building and in a few hours got everything they wanted. They then claimed Carpathia was free to delete the servers and reprovision them. The DoJ wants to pretend they never took control of the entirety of the MU servers, even as they cut off everyones access to them and cherry picked data off of them.
Much of the evidence presented to the Grand Jury came from data they can not explain how they came into possession of, internal emails from inside the company as well as Skype calls. It appears from an unindicted co-conspirator they were able to gain this information, one wonders what crimes they charged this person with to gain insight into the company.

The second pile was taken in violation of NZ law and the order of the court. Evidence in a trial in NZ was handed to the FBI who dubbed copies while it was in their possession, in a country where they were just guests, and quickly FedEx’ed them out of the country.
Anyone else have a problem with giving a 3rd party access to evidence in a “criminal” proceeding with no oversight?

The DoJ wants time to go through the 150TB of data to find anything to support the case they presented to the Grand Jury.

The DoJ wants to block MU from hiring a lawyer who represented companies who might be plaintiffs in a future civil matter, by that same reasoning shouldn’t the former BSA lawyer be barred from running the the DoJ case?

There is a good chance the extradition case is going to collapse, and then with a small push the US case is going to be sunk. Then the real fight will begin trying to get back everything they took from Mega before 2025.

Anonymous Coward says:

Re: Re: Understand exactly what the DOJ is appealing

The second pile was taken in violation of NZ law and the order of the court. Evidence in a trial in NZ was handed to the FBI who dubbed copies while it was in their possession, in a country where they were just guests, and quickly FedEx’ed them out of the country.
Anyone else have a problem with giving a 3rd party access to evidence in a “criminal” proceeding with no oversight?

I think you have this wrong. In an extradition, the government seeking the extradition is like a plaintiff. An extradition is not a criminal proceeding per se. It is custodial in nature. While details of the crime are germane to the proceeding, it’s not up to NZ to try the case. It makes sense that both Dotcom and the US Attorney have access to the information.

That Anonymous Coward (profile) says:

Re: Re: Re: Understand exactly what the DOJ is appealing

Dotcom has been denied access to the data, including the “missing” security footage of the raid on the mansion. These items were handed over to FBI agents who made copies of the drives seized from the Dotcom mansion and shipped the copies out of the country. These were part of the items seized with the defective warrant, that was corrected after the fact.

This allowed them access to evidence gathered during the NZ raid of the Dotcom mansion, that they might not be entitled to… a court has yet to rule if the DoJ has a worthwhile case. Copies were taken and will most likely be used in the US case against Mega, no US court issued a subpoena for this data, and a US court order does not supersede NZ law.

It is up to NZ to see if the case actually has merit, which is why the Mega indictment has elements that make no sense in reality but carry prison terms of just enough to satisfy NZ law regarding extradition.

G Thompson (profile) says:

Re: Re: Re: Understand exactly what the DOJ is appealing

Normally you would be correct, except that under extradition laws (and especially in this case since the originating Judge is highly informed about digital evidence) the plaintiff which is the NZ prosecution acting as a representative in an administrative function (not plaintiff at all nor amicus, it’s more as counsel) has to prove since it’s upon criminal charges that the extradition is for, that there is enough weight for a trier of facts to accept that a criminal offence on balance should be tried under the reciprocity that is absolute in extradition treaties.

For this to occur the trier (in this case the judge and not a jury) is wondering why “procedural fairness” in both it’s shapes has not even been seen to be done. This is where the US legal system (and the USJ and people here fall down) Procedural fairness is a absolute and MUST be shown to occur. It’s more than due process it’s a state of English law that is older than the US Constitution.

For this to occur a defendant has to be able to face their accusers and the prosecution has to be shown to be impartial allowing all facts and other matters to be available to the defence.

It might not be up to NZ to try the case, but it is absolutely up to NZ to make sure the case before it is tried conforms to all and every procedural fairness doctrine that is under NZ law.

anon says:


All that Kim has to do is start a site for music lovers that is only for music that does not have copyrights attached to it. Anyone uploading of any music that is from the copyright monopolists would be banned from accessing the service, and anyone trying to get any music taken down would be sued if they did not have the right to take the music down.
Enable visitors to the site to up vote music they like in the different genres and give rewards for people up-voting the top 10, like a t-shirt or something along those lines. Encourage people to donate to the artists they like and put up stats to the website relating to all traffic and money artists have made on a weekly basis. Even give people micro payments if they support the website , i am sure there would be a way to make a site like this grow so big that most artists with common sense would join it. Then there would be a new top 40 on the radios and tv shows would be allowed to use music in there shows for a small fee, something in the region of 10% of what the studios charge.

All copyright would always remain with the artist but once it reached a certain level of support the artist would agree to keep it up on the site. Or some other rule that would prevent the studios from stealing the top artists.

Maybe even allow other sites to share the music with the only provision being that there was a link to donate to the artist if people wanted to.

If he does this as soon as the case is dropped , which i am sure it will be , he will be able to destroy the copyright monopolists very very quickly.

Aileron says:

In these actions and with Julian Assange too, the US has become nothing but the corporate bully boy policemen of the world; they make up laws as they go along and abuse other nations sovereignty. Shameful, despicable, immoral, inept and corrupted all in one. They care more for the corporations than their own people.

Now its time for NZ to show its own people where its loyalties are placed. Does it respect its own justice system and people more than a foreign bully boy country? It shouldn’t be a hard question for any country to answer, but the cancer of corporate interests and international alliances has infected the world.

Don’t think I’m standing up for kim dot megajerk. He made his insane money on the piracy of creative peoples hard work, he knows it, everyone knows it! But the US behavior is far worse and far more of a danger to civilized society.

Anonymous Coward says:

And to think, that this was a service I used weekly to easily get files to and from customers. Since it’s shutdown I’ve tried quite a few free file hosting services and they are all terribe compared to how easy Megaupload was to use for both me, and my customers.

Used for evil piracy related files? Probably. Used by legit busineses and people using it as Kim intended? Yes!

It was a service that worked and is missed now that it is gone and all other services like it act like scared little kids now.


No it's not the US, it's the US DOJ

“No matter what, this is once again showing the US’s hubris in this case — assuming it could waltz into New Zealand, with highly questionable evidence, shut down a company, and extradite the executives to the US without anyone asking questions.”

Nope, it’s not the US that is doing this it is the Obama administrations Department of Justice.

G Thompson (profile) says:

Re: No it's not the US, it's the US DOJ

Actually it is the United States of America that IS doing this.. Individual citizens no, but the entity as a sovereign state doing it. ABSOLUTELY!

Most reasonable people in the world understand that the average US citizen doesn’t or wouldn’t if they knew of this sort of thing happening. On the other hand, with or without your semantics there is no doubt that the average US citizen is to blame though their part in the blame is very minor, for your current administration now, previously, and in the future no matter there political allegiance.

Anonymous Coward says:

‘it would take at least two months” to get the evidence together.’
what i think this points out is that regardless of whether the DoJ actually does have any real evidence against Kim and Co., the incompetence is staggering! anyone that was trying to prosecute someone would surely at least keep all evidence found in chronological order and backed up on a computer as well as on a removable drive, in case of some disaster or other?
i think it also brings into the open the absolutely disgraceful behaviour of the DoJ and their expectation of being able to do exactly what they want, when they want regardless of where they and their victim(s) may be, without even the slightest concept that they are not in charge of that world, that different countries have different laws to the USA and those countries are not obliged to uphold US laws. i am still waiting for the threats to be issued to the NZ court and government and how quickly they fold to US pressure. fascism seems to be alive and thriving quite well in places no one would normally associate it with. might just as well have saved millions from dying needlessly and let it rule 70+years ago!

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