LeaseWeb Deletes Megaupload's Servers Without Warning, Destroying Key Evidence

from the yikes dept

Last year, we found it absolutely bizarre that the DOJ would seize all of Megaupload’s servers, and then, just weeks later, tell its hosting partners that they could wipe those servers clean. Considering that the servers held key evidence that might exonerate the defendants in a criminal trial, it seemed insane that the DOJ was advocating for the destruction of evidence. A judge later told hosting company Carpathia that it needed to preserve the data, rather than delete it. Carpathia was annoyed at the expense, and Megaupload asked the government to free funds for the purpose of keeping the data maintained.

However, now it appears that another hosting partner of Megaupload, LeaseWeb, has wiped Megaupload’s servers clean, destroying all of the evidence, without any warning. Kim Dotcom has pointed out that his lawyers had repeatedly asked LeaseWeb not to destroy the evidence, so they were clearly on notice that they held key evidence in a criminal lawsuit, but they chose to destroy it anyway.

Even though the DOJ both supported this destruction of evidence and refused to release the funds to maintain it, it really seems like this could come back to bite the DOJ badly, because Dotcom and the other defendants can now point to the fact that the DOJ allowed for the destruction of key evidence that might prove their innocence. What a bizarre move by the DOJ.

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Companies: megaupload

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Comments on “LeaseWeb Deletes Megaupload's Servers Without Warning, Destroying Key Evidence”

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91 Comments
out_of_the_blue says:

Oh, I doubt the mythical exculpatory evidence!

In any case, you can’t rely on “dog ate my homework”.

But so long as keeps Mike’s hope alive that Dotcom won’t be prosecuted for OBVIOUS crimes, it makes Techdirt fare.

If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.

Anonymous Coward says:

Re: Oh, I doubt the mythical exculpatory evidence!

Losing the extradition trial would be a huge blow to the US case even if he DID come here.

Secondly, it doesnt matter, due process, following the law properly requires that evidence NOT be destroyed. Innocent people have gone to jail because they thought if they destroyed things they thought were evidence they wouldn’t be found guilty.

Evidence was in DOJs hands and now it’s destroyed.

You can’t have a trial based on that kind of thing.

G Thompson (profile) says:

Re: Re: Re: Oh, I doubt the mythical exculpatory evidence!

Actually it being a criminal case the prosecution has absolute control of all of the crime scene evidence.. If they allow it to be destroyed they have a major problem since that evidence could of held exculpatory evidence and therefore any inculpatory evidence they also hold BASED on that destroyed evidence they allowed vicariously to be destroyed is now unavailable to be used.. Well thats in a due process situation….this situation is far from due process

Ruben says:

Re: Oh, I doubt the mythical exculpatory evidence!

If it’s so obvious, then why are they delaying the conviction? If it’s such a slam dunk, as you insist all instances of rights infringement are, then why are they letting this case languish and (OBVIOUS)evidence be destroyed?

Don’t worry, I’m not expecting an answer(I already know what it is).

John Fenderson (profile) says:

Re: Re: Re: Oh, I doubt the mythical exculpatory evidence!

I don’t think even that would be all that hard. When a friend of mine was studying to be a cop, he mentioned something about this: that every car on the road has something citable about it. One of the exercises they engaged in was to find three citable violations in a randomly selected vehicle.

Bergman (profile) says:

Re: Oh, I doubt the mythical exculpatory evidence!

It’s not the government’s job to get convictions at all costs, especially if they have to frame someone to do it. There is a reason the department is called the Department of JUSTICE.

When one side or the other in a court case destroys evidence, it’s called spoliation of evidence. Doing so weakens the DOJ’s case against Dotcom.

If you’re rooting for the government in this, why cheer when they shoot themselves in the foot?

JMT says:

Re: Oh, I doubt the mythical exculpatory evidence!

“In any case, you can’t rely on “dog ate my homework”.”

Actually, in court you can rely on that when the dog is the prosecutor and the homework is material evidence.

“If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.”

I’m not sure if this statement is made out of ignorance, malice or both…

If you were accused of a crime in another country and set to be extradited, and you considered yourself to be innocent, would you willingly jump on a plane and present yourself to the authorities knowing that you’ll spend the next year or two stuck in that country and having to put your entire life on hold? Do you leave your family? (Dotcom has a wife and five kids remember.) Or do you uproot them from their lives too? Do you just quit your job? (Probably no choice there.) Is that what you’d do Blue?

No, of course it’s not. Since you believe you’re innocent you’d fight every effort to you drag you into that hell. Even if you assume Dotcom would get a fair trial (far from guaranteed) and can win, it’s still something no sane person would volunteer for.

The extradition process is not just to ensure criminals can be returned to the country where a crime was committed, but also to ensure people who are innocent or unlikely to be found guilty are not unduly punished before a verdict is even delivered.

Lowestofthekeys (profile) says:

I might need some more details but this is from Leaseweb’s TOS:


25.2 Upon expiration or termination of the Agreement:
25.2.1 LeaseWeb shall cease to provide all Services;
25.2.2 LeaseWeb shall be entitled to erase and delete any and all data of Customer -and any
and all data of Customer?s End Users- from LeaseWeb?s Infrastructure, including from
the Dedicated Infrastructure;

http://www.leaseweb.us/uploads/legal/20130521_USA_General_Terms_v2013-1_1.pdf

I’m wondering if the lack of funds caused them to delete the data.

G Thompson (profile) says:

Re: Re: Re: Re:

Actually it’s better if the court finds against the business since then Leaseweb could (dependent on US qualified immunity rules) counter sue the DOJ. If the DOJ balk and carry on like the idiots they seem to be in this case then that will just show all business’s that basically if the DOJ come knocking tell em to politely fuck off unless all warrants and liability structures for third parties at a crime scene are upheld.

This is a lose-lose for DOJ though LeaseWeb are also culpable too here.

New Mexico Mark says:

Re: Re: Re: Re:

Easy enough to either pull and label the drives (which are relatively cheap) and replace them or do forensically sound image backups that could be restored later if needed. No need to keep servers tied up. Admittedly a royal PITA and financial hit given the volume of data, but certainly feasible. (And they could probably still work in storage charges if anyone needed that data restored.)

Smarter thing would have been to get confirmation from DOJ first. “You have chosen to delete all files. Once deleted, files cannot be restored. Are you SURE you want to proceed? yes / NO”

Internet Zen Master (profile) says:

Re: Re: Re:

And as I recall, the only reason that the DOJ was able to identify several infringing files (39ish? Can’t remember for certain) and claim “HEY! MegaUpload’s hosting infringing content! Send in ze marines!” was because those files were movies that had been submitted by the NinjaVideo group, which the DOJ was using as evidence.

MU would’ve deleted the infringing files if the DOJ gave them the go-ahead (they were told all this through Carpathia), because the DOJ said “Don’t do this or we’ll charge you with tampering of evidence.” So they kept them active and untouched, even after the NinjaVideo case ended, waiting for the green light from the DOJ to delete them. Instead, Megaupload gets taken down using those exact same files.

Go figure.

Anonymous Coward says:

Re: Re:

Why is it assumed that KDC should be on the hook for maintaing the evidence on the servers?

Wasn’t it “seized” by the DOJ?

If my car is seized as evidence, how exactly would I be responsible for maintaining the integrity of it, since I don’t have possession of it?

Sounds like a typical fuckup at multiple levels (or par for the course when it comes to the DOJ).

Anonymous Coward says:

Re: Re: Re:3 Re:

Now what?

Now I suggest you brush up on some legal text because you have no idea what you are talking about.

First and foremost, the government didn’t seize anything. If they had seized the servers then they would be in the governments custody, not LeaseWebs.

In this case the government is attempting to destroy evidence by preventing a defendant from maintaining said evidence. If this goes to trial I presume the DOJ will try to use an argument along the lines of “we never seized their equipment and therefore had no obligation to preserve it for trial” they would then try to pull out copies of some of the data and say “we were able to secure THIS evidence before the defendant destroyed the originals.”

Personally I find it very unlikely that any judge will allow that evidence to be used at trial as the government does not have the originals and will have no way to prove that the copy wasn’t tampered with.

It seems the DOJ has no interest in actually bringing this to trial. Instead they are using the legal system to administer the punishment without the conviction.

Rekrul says:

Re: Re: Re: Re:

Well, if your car was seized by the government, then you stopped making payments and later the cops decided they din’t need it- would you be crying about the repo guy picking it up?

Let’s try it from the opposite point of view;

You’re accused of a computer crime. Before the police can get a search warrant for your computer, you have your own “expert” go through it and collect evidence of your innocence. Then as soon as he’s finished, you wipe the hard drive. How do you think the authorities would react?

Anonymous Coward says:

DOJ's response

Shake magic 8-ball to figure out which response to use:

1) Those files needed to be deleted for national security.
2) There was nothing important on those servers.
3) They had nothing to do with this case and no evidence was harmed.
4) We didn’t do it. LeaseWeb did.

Course then follow that up with the classic:
You need to trust us cause we’re the DOJ. Just extradite Dotcom already so we can hold our kangaroo court.

I’m still putting my bet on more charges magically showing up if he is extradited to the US.

Anonymous Coward says:

It is only a bizarre move if the point was actually to try DotCom for some sort of actual crime, which it was not. This case was, pure and simple, about keeping DotCom tied up in legal proceeding in yet another attempt by the entertainment industry to try to limit/prevent serious competition. With the destruction of the data, even if he wins, potential clients are going to be quite leery of using any service he provides for fear of something like this happening again.

At the end of the day, it’s the consumers and content creators who are going to lose out, just as the entertainment industry wanted all along.

Anonymous Coward says:

From what I understand, in a case where few pieces of data from a hard drive can be retrieved (from someone attempting to destroy it) the less data you can get out of it the more incriminating that out of context data tends to be in courts.

But that’s in cases where the DEFENDANT does something to try to hide/destroy evidence against themselves on the hard drive, not the reverse with the prosecution doing that.

Are the DOJ dumb enough to think this will be treated the same way as if Kim Dotcom destroyed the evidence?

It would seem that due to the 1st ten amendments that the evidence the DOJ gathered is now inadmissible in court, which could destroy their whole case if this happens to the rest of the evidence on the other servers. Unless the judge is a real moron who doesn’t read the constitution (entirely possible).

Digger says:

DOJ Wanted the evidence gone

Since the evidence proved beyond a shadow of any doubt that Megaupload was innocent of any wrongdoing, the DOJ can’t have that embarassing evidence show up – so they ordered it deleted.

Now the DOJ gets to see what it’s like in prison since they tampered with and destroyed evidence in a criminal case, they get to go to prison (the people within the DOJ, no matter how high up, that ordered or okayed the evidence destruction).
Can’t wait to see them in prison orange.

If they don’t serve time, then no one can ever be tried for evidence destruction again.

SolkeshNaranek says:

Herd of jackasses

From the point of view of the DOJ, this is a God send.

They (DOJ) currently look like a herd of brain dead jackasses with the way they have handled this case.

Everything they have touched has gone straight down the tubes.

If they file to dismiss the charges, it will only make them look even worse (if that is possible).

By having the hosting provider delete possible exculpatory evidence, the entire proceeding is tainted thus warranting a dismissal.

The case goes away for reasons beyond the control of the DOJ, letting them trumpet to the press how they would have convicted Kim, if not for the loss of evidence.

This seems to be a big face saving win for the DOJ.

Kenneth Michaels (profile) says:

Re: The DOJ wants to lose this extradition case

The DOJ does not want their criminal-law theory to be tested in US court, so they want to lose the extradition case in NZ. That way they can continue to use the wrong theory of criminal law to prosecute other providers.

The idea from the beginning was to seize Kim’s assets to prevent him from defending himself – and he would plea out (again not testing the legal theory in court). Once Kim was able to defend himself, they had to sabotage the case, again to prevent the theory from being tested in court.

Internet Zen Master (profile) says:

Forget about Dotcom and the case for a moment

Think about all the idi-I mean, poor souls who uploaded their child’s baby pictures/wedding photos/personal files/etc to MegaUpload without backing them up locally! They just lost all of that because of LeaseWeb.

…Actually, hold on for a second.

Since LeaseWeb’s deleted all the content from the servers, does that mean that the data on Carpathia is gone as well?

eaving (profile) says:

Prosecute or destroy?

At this point do we actually think the purpose of things was to prosecute Megaupload, or simply to destroy it? Saying this all ended tomorrow and Dotcom got everything back it would still be a huge process to get Megaupload back on its feet. I definitely think in that circumstance he could, but with his new Mega I am not sure he would bother even now. With them continuing to drag their feet and keeping as much as they can in limbo it look every day more and more like they wish to simply bury something they cannot rightfully legally take down.

Anonymous Coward says:

the backlash over this is going to be nowhere near as bad as it would have been. there was obviously evidence on the HDDs that would have shown exactly what had happened, when and who was involved. it surely isn’t any surprise that the DoJ has gone along with what Leaseweb has done, in fact, they probably were the instigators of having them wiped. just think, now there is nothing to back up the claims of who was behind the whole episode and why it was done, who to please etc etc. and as far as the DoJ being held liable, who actually thinks they give a fuck? they will keep pissing people about until they get fed up and stop trying to get compensation, so will pay out nothing! typical government reaction and attitude, ie, the people dont matter!!

Rich Fiscus (profile) says:

Or maybe it’s not a bizarre move at all. Think of it like a poker game. The DOJ thought they had a good hand because the MPAA sock puppets in IP enforcement told them so. Besides the deck is almost always stacked in their favor. Under Federal law there’s almost always something to fall back on for leverage (ie plea bargain extortion) like making false statements or computer hacking.

In this case, though, it turns out the deck isn’t stacked the way they thought it was so now they have to actually play the hand they were dealt or fold. Keep playing and there’s a good chance they lose. Plus everybody gets to see their cards. Fold and they can keep their cards secret but at the cost of admitting how bad they were. Or they can go with a third option to create a distraction and then throw all the cards on the floor.

While that may kill their case it also prevents MegaUpload from proving their innocence. The government can continue to make whatever claims they want against MegaUpload because they got off “on a technicality.” Instead of proof of government overreach and corporate influence it becomes more proof we need tougher IP laws.

That’s assuming the government can’t win based solely on the quasi-religious deference most judges give to statements from law enforcement officials.

Anonymous Coward says:

Re: Re:

I’ve been thinking almost the exact same thing. I’m becoming increasingly convinced that the DOJ is purposely trying to get the case tossed on procedural grounds. They’ve realized that they basically have no case and the last thing they want to do is set an unfavorable (from their perspective) precedent. Most expedient way of doing that? Bungle the technicalities so bad that the case never even gets to trial.

Anonymous Coward says:

The ironic thing is that even if the DOJ loses, the DOJ wins. I think the plan all along was to ruin Kim’s business by whatever means possible. Getting Kim convicted would have been the icing on the cake, but it was never the main objective. The MAFIAA got its cake, the DOJ got its money and everyone is happy. Except for Kim and those who lost their legitimate files.

Ben (profile) says:

Backups

If LeaseWeb didn’t have backups nobody would ever lease space from them again. This is conjecture, but informed conjecture: they repurposed the hard drives that they had had to keep idle waiting for the Megaupload situation to calm down. They finally decided to just wipe them (has anyone stated how much data this represents?)

If they were diligent they would have done a backup to tape before wiping them. Alternatively, they could have just relied on their last backup. I think it would be prudent for someone to make sure they locate those backups and keep them safe.

The company I work for has 50TB+ of data that gets incrementally backed up each night, with a full backup each week; I would think LeaseWeb would be be engaging in something similar.

Anonymous Coward says:

I am confused. Once the DOJ had collected what it deemed relevant from the servers it no longer had any concern regarding the servers. Megaupload and its affiliates were free to do as they wished without DOJ interference. How this equates to the DOJ supposedly encouraging the destruction of evidence eludes me.

That One Guy (profile) says:

Re: Re:

Because MU wasn’t free to do with the servers as they wished, as they were considered evidence, or containing evidence, of the DoJ’s investigation, and therefor could not be touched.

Add to that the DoJ seized all of Dotcom’s funds and refused to allow him to pay for the servers(which would not have been a cheap thing to do), and the DoJ pretty much did everything short of ordering the servers to be wiped.

Anonymous Coward says:

Re: Re:

This is what they were fighting for.

Actually getting to access their own servers. The DOJ took the servers, blocked an attempt at paying Carpathia, refused to release the funds required to pay for the servers and refused to release the information contained on the servers.

This ball was in the DOJ’s court, and if the data was deleted, it’s entirely their fault, as it was deleted while under their supervision.

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