Legal Issues

by Mike Masnick


Filed Under:
doj, kim dotcom, scotus

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megaupload



Kim Dotcom Asks US Supreme Court Not To Allow US Government To Steal All His Stuff Without Due Process

from the due-process-matters dept

Over the past few years we've covered what may seem like a side issue in the many legal issues facing Kim Dotcom, but it's an important one: is the US able to legally take all of his money and stuff, despite (1) him not being found guilty of anything and (2) that stuff not being anywhere near the US? As we've said, even if you think Dotcom is guilty of horrible crimes and should rot in jail, how the US is going about taking his assets should concern you massively. The fact that courts have blessed the DOJ's actions doesn't make it any less concerning.

On Friday, Dotcom (along with some powerhouse legal help) asked the Supreme Court to review this issue. The real issue here is one that we've covered a lot in other contexts: civil asset forfeiture, in which the US seizes and sues stuff rather than people. That's why this lawsuit is not actually against Kim Dotcom (there are other such lawsuits), but rather the United States v. All Assets Listed in Attachment A (no, really, that's the case). Of course, "Attachment A" is all of Dotcom's assets, mostly in Hong Kong. But the situation with Dotcom takes the normal questions about asset forfeiture and adds layer upon layer of complexity.

There are three specific issues that Dotcom is asking the Supreme Court to review, and all are important here. The first is whether or not a US court can allow for asset forfeiture for assets that are outside the US and outside of US government control. As the dissent pointed out in the appeals court ruling in this case, a federal court issuing a ruling is supposed to be a binding ruling, not an advisory ruling. And if the assets are held outside the US and not under the jurisdiction of the US courts, the ruling can't be binding.

The second two issues are connected: and it's basically the question of whether the courts were right in saying that the federal government could take Dotcom's stuff and that Dotcom could not protest, because he was "a fugitive." Of course, he's not a "fugitive." He's just fighting extradition to a place he's never been. He isn't running away and is going through the full legal process he's entitled to in New Zealand. That's not someone hiding from the US, it's someone who is following the basic rules of due process, which the US wishes to deny him. The specific questions are at what stage of the process he can be declared a fugitive and the other is whether or not intent needs to be shown.

As we have noted repeatedly, the Supreme Court rejects most requests to hear cases, but the lawyers here (Dotcom's long-term lawyer Ira Rothken along with legal giant Quinn Emanuel) have done a good job demonstrating real circuit splits in appeals courts on each of the three questions, which is often important in convincing the Supreme Court to actually take a case. As the filing notes:

This Court has previously admonished that the “harsh sanction” of fugitive disentitlement in a civil forfeiture action is “most severe and so could disserve the dignitary purposes for which it is invoked,” because it “foreclos[es] consideration of claims on the merits.” ... The Court noted that it “ha[d] held it unconstitutional to use disentitlement similar to this as punishment for rebellion against the United States,” but left open the question of “whether enforcement of a disentitlement rule under proper authority would violate due process.” ... Nonetheless, a divided panel of the Fourth Circuit affirmed civil forfeiture based on fugitive disentitlement.

I imagine that the federal government will insist there's no reason for the Supreme Court to weigh in here, but hopefully the court decides to review the case. Again, even if you dislike Dotcom or think he's guilty of a "megaconspiracy" to infringe on copyrights, the due process questions around civil asset forfeiture should concern you -- and hopefully they concern the Supreme Court.


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  • identicon
    They'reNotHisFiles, 10 Apr 2017 @ 1:31pm

    It's not even Kim Dotcoms files

    The thing is, the files are those of the users.
    Mega was the server.

    Those files don't belong to Kim Dotcom or Mega.

    When will the government realize this?

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

    • icon
      That One Guy (profile), 10 Apr 2017 @ 1:36pm

      Re: It's not even Kim Dotcoms files

      Oh no, the files from MU are long gone, the DOJ made sure of that. This is all about the money and more physical property, Megaupload as a business is beyond dead after the DOJ ensured that the servers containing the files from it would be wiped by refusing to pay their upkeep, and refusing Dotcom the ability to buy and/or pay their upkeep either.

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

    • identicon
      Anonymous Coward, 11 Apr 2017 @ 8:56am

      Re: It's not even Kim Dotcoms files

      Remember the prism leaks alleging that Google had a direct tap coming in from gubernment agencies and remember the outcry on that.

      This is by far worse, rather than a tap into the systems, the gubernment took the drives home with them to inspect.

      Forget the person DotCom

      Think about the SOHO folks that had their files on these servers that lost income because of this.

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

  • icon
    That One Guy (profile), 10 Apr 2017 @ 1:32pm

    "Only criminals demand due process under the law."

    The second two issues are connected: and it's basically the question of whether the courts were right in saying that the federal government could take Dotcom's stuff and that Dotcom could not protest, because he was "a fugitive." Of course, he's not a "fugitive." He's just fighting extradition to a place he's never been. He isn't running away and is going through the full legal process he's entitled to in New Zealand. That's not someone hiding from the US, it's someone who is following the basic rules of due process, which the US wishes to deny him.

    If the court refuses to take up the case, or worse takes it up and rules against him on that matter they might as well strike fighting against extradition as a legal right from the law entirely.

    If you can be punished for exercising a legal right, to say it's a legal right becomes little more than empty words, and at that point why waste time and effort keeping up with the obvious fiction about it being a right, just honestly state 'The second the extradition order is handed out you are considered guilty, and any objections you may make will merely be taken as further evidence of your guilt.'

    Either fighting extradition is a right under the law, in which case it's absurd to punish someone for making use of it, or it's not a right, in which case stop with the farce and remove it from the law entirely.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 2:16pm

      Re: "Only criminals demand due process under the law."

      I hate to break it to you, but we have lost every single "right" we had at some point or another already.

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

      • identicon
        Anonymous Coward, 10 Apr 2017 @ 2:25pm

        Re: Re: "Only criminals demand due process under the law."

        Every single one has been lost!

        We currently only have the rights they decide to let us have in the moment.

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

      • identicon
        Thad, 10 Apr 2017 @ 3:37pm

        Re: Re: "Only criminals demand due process under the law."

        You know, I'm just about tired of seeing the "I hate to break it to you, but they already took all our rights" post.

        Yes. We know. We are aware that the US government has a long record of infringing on individual constitutional rights. In fact, if we are posting in the comments section of Techdirt, odds are pretty good that we have just finished reading an article that reminded us of that.

        Do you have any original thoughts to contribute to the conversation, or are you just going to state the very very obvious over and over again and pat yourself on the back for your cleverness?

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

        • identicon
          Anonymous Coward, 10 Apr 2017 @ 5:29pm

          Re: Re: Re: "Only criminals demand due process under the law."

          Important things must be repeated lest we forget and fall to the terrors of history being repeated.

          You are a part of the problem. You constantly tell people to shut-up because you "think" you know or understand. You do not.

          Stop telling people to shut up, instead, join the chorus, then, and only then, might it become loud enough for people to hear. Until then, running around telling people to shut up about the truth because you have grown tired of hearing it only serves to ensure that history repeats itself and people remain ignorant and unmotivated to change.

          I hope you do not lead anyone, you would clearly suck at it!

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

          • identicon
            Anonymous Coward, 10 Apr 2017 @ 6:21pm

            Re: Re: Re: Re: "Only criminals demand due process under the law."

            Umm, you might want to read your comment back to yourself.

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

            • identicon
              Anonymous Coward, 10 Apr 2017 @ 8:27pm

              Re: Re: Re: Re: Re: "Only criminals demand due process under the law."

              Why? Is there something in your juvenile logic that fails you? I did not tell him to shut up, I just told him to stop telling others to shut up AND to join the chorus, there is quite a significant difference between the two... o wait, keep forgetting, juvenile logic does not understand things like this!

              But don't let me stop you from putting your foot in your own mouth!

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

              • icon
                jupiterkansas (profile), 11 Apr 2017 @ 8:14am

                Re: Re: Re: Re: Re: Re: "Only criminals demand due process under the law."

                I hope you don't lead someone, because you certainly are lacking in tact.

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

          • identicon
            Anonymous Coward, 11 Apr 2017 @ 5:34am

            Re: Re: Re: Re: "Only criminals demand due process under the law."

            If your attitude is an indicator of your leadership. You don't have ability to lead a stripper to a dollar bill.

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

      • icon
        btr1701 (profile), 11 Apr 2017 @ 11:00am

        Re: Re: "Only criminals demand due process under the law."

        > I hate to break it to you, but we have lost every
        > single "right" we had at some point or another already.

        Well, I haven't been forced to quarter any military troops in my home yet, so I think I might still have that right.

        3rd Amendment 4Eva!

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

    • icon
      Bergman (profile), 12 Apr 2017 @ 4:40am

      Re: "Only criminals demand due process under the law."

      It's not just fighting an extradition in court. Under the DOJ's interpretation of the law, any US citizen who so much as requests a lawyer be present during questioning could be construed as being a fugitive from justice.

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

  • identicon
    Anonymous Coward, 10 Apr 2017 @ 2:23pm

    Such smelly bullshit all over

    #1. Kim's 'cuntry' is responsible for keeping him safe from American Imperialism. They failed! They instead conspired with the American government to fuck over one of their own. It's their fault, if they don't like it they can vote in different leadership or start an insurrection. Their call.

    #2. Kim is not a US citizen, while it is abhorrent for the American government to act as tax paid henchmen for business a foreigner has no protections against this especially when their own government is giving them away. America might as well have just assassinated Kim just because. They have already almost economically assassinated him with the help of his own government.

    #3. Americans don't give a fuck, they 'act' like they do, but they still keep voting for Clinton, Bush, Obama, and Trump and of course the entire dirty diaper that is the house and congress. None of these guys gives a flipping shit about the little guy, never have and never will! For now, Americans are too busy chasing the diminishing American dream, freaking out over micro-aggressions, and pandering to their party or political affiliations as though their neighbor next door whom voted for Obama or Trump are the enemy.

    Sorry kids, this problem is entirely an extension of an ignorant and sycophantic electorate in America. If we gave a shit, things would be a lot different.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 2:48pm

      Re: Such smelly bullshit all over

      "For now, Americans are too busy chasing the diminishing American dream, freaking out over micro-aggressions, and pandering to their party or political affiliations as though their neighbor next door whom voted for Obama or Trump are the enemy."

      As a proud American, I can only respond by saying, You nailed it.

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

    • identicon
      Anonymous Coward, 11 Apr 2017 @ 9:45am

      Re: Such smelly bullshit all over

      Americans don't give a fuck, they 'act' like they do, but they still keep voting for Clinton, Bush, Obama, and Trump

      They vote for the lesser of two evils, because they've been convinced evil is the only option.

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

      • identicon
        Anonymous Coward, 11 Apr 2017 @ 1:35pm

        Re: Re: Such smelly bullshit all over

        Convinced or not, two evils is all we're ever offered. This past election we were offered a shit sandwich and a moldy orange. Even record voter turnout can't fix that mess.

        Those who champion people getting out and voting should focus their efforts on political system reform instead.

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

        • icon
          Bergman (profile), 12 Apr 2017 @ 4:43am

          Re: Re: Re: Such smelly bullshit all over

          This.

          When our only options are to abstain from voting or choose between the Second Coming of Adolf Hitler and a candidate who -- if her own publicly stated beliefs were applied to her own actions -- is guilty of espionage and treason?

          No matter what we do, we're screwed.

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

          • identicon
            Another Option, 13 Apr 2017 @ 12:55pm

            Re: Re: Re: Re: Such smelly bullshit all over

            The third option was Bernie Sanders. I voted for Bernie, but not enough other people joined me, so we wound up with Clinton as the nominee.

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

  • icon
    Richard M (profile), 10 Apr 2017 @ 2:26pm

    How is any of this constitutional

    I really fail to see how asset forfeiture ever passed constitutional muster. The complete lack of due process involved just makes the fact that anyone with more than two brain cells to rub together would defend it on constitutional grounds.

    I would weep for my country but I have almost become numb to the fact that we are sliding ever more rapidly into a police state.

    The question is not will we but what kind it will be. If we finally tip over and the Republicans are in charge we will get Iran. If we finally tip over when the Democrats are in charge we will get Venezuela

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

    • icon
      That One Guy (profile), 10 Apr 2017 @ 3:28pm

      Re: How is any of this constitutional

      Because Drugs! And Criminals!

      Asset forfeiture is for going after druggies and other criminals, criminals don't have rights, therefore there's no need to consider whether or not stealing someone's possessions based upon accusation is constitutional.

      (I wish I was being sarcastic here, but as far as I know the above is an only slightly exaggerated version of the justification for the legal abomination known as asset forfeiture/robbery-at-badgepoint)

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

      • identicon
        Paul, 10 Apr 2017 @ 3:46pm

        Re: Re: How is any of this constitutional

        Asset Forfeiture was originally about being caught in the act. If your found with 5 lbs of Drugs and a wad of cash, its easy to say you were "Caught in the act" and such and such.

        Of course when the law was finished "Caught in the act" was forgotten and now we have lawsuits vs the items found in the appendix.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 4:39pm

      Re: How is any of this constitutional

      Beyond this, I've never understood how they can apply CIVIL asset forfeiture to Dotcom's holdings in Hong Kong -- isn't that essentially the US Federal Government claiming territory owned by China?

      Civil asset forfeiture, I thought, had to be against something owned by the government (money).

      Is their argument that they're grabbing back the US dollars in his HK account? Or that they're clawing back his debt that's owned by US companies? Because even that's a huge stretch -- why not just claim that all US money held in China is forfeit, and claw it back? The US would have the exact same legal right to do that as it has to pull CAF on Dotcom's likely illegally gotten funds.

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

      • identicon
        Anonymous Coward, 10 Apr 2017 @ 4:49pm

        Re: Re: How is any of this constitutional

        Civil asset forfeiture, I thought, had to be against something owned by the government (money).

        Nope. Any property at all can be subject to civil asset forfeiture. It's commonly used on vehicles, and has been used on everything from TVs to clothes.

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

        • identicon
          Anonymous Coward, 11 Apr 2017 @ 9:48am

          Re: Re: Re: How is any of this constitutional

          Any property at all can be subject to civil asset forfeiture.

          How does that work for non-US property? The FBI can't just go storming into a Hong Kong bank. Wouldn't they need to use an MLAT, which could give Dotcom standing under HK law? Is he suing there too?

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

          • identicon
            Anonymous Coward, 11 Apr 2017 @ 1:39pm

            Re: Re: Re: Re: How is any of this constitutional

            Apparently they can do exactly that. Here they've seized foreign-held assets (they're not dollars if they're in a foreign bank, either) of a citizen of a foreign nation who never once in his life set foot in the US. Kim has had absolutely nothing to do with the US ever in his life and yet, somehow, the US government is allowed to trample over New Zealand's sovereignty and baselessly punish one of its citizens rather than all NZ to handle their own affairs.

            You can thank big money in politics for that. And damn near everything else wrong with this derelict husk of a nation.

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

    • icon
      discordian_eris (profile), 11 Apr 2017 @ 10:02am

      Re: How is any of this constitutional

      Because constitutionally property HAS NO RIGHTS! People do.

      The only 'rights' that property can ever have are those granted by Congress as enforced by the other two branches. Yes, due process applies, but only insofar as making sure that the laws are followed properly. Don't necessarily blame the Supreme Court for this fustercluck of laws and regulations that comprise asset forfeiture. If the agencies that use asset forfeiture follow the rules laid down, even if the rules are BS, they can claim that their was due process. Even though the process is rigged.

      In the long run, it is probably a GOOD thing that property has no rights. Originally IIRC corporations had no rights, and no obligations, under the law. That meant that they could neither sue or be sued. The courts made them "people" for the limited purpose of allowing them to fully interact with the legal system and be held accountable. We've all seen where that has led. Giving property rights would be a slippery slope under current jurisprudence.

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

      • icon
        btr1701 (profile), 11 Apr 2017 @ 11:08am

        Re: Re: How is any of this constitutional

        > Because constitutionally property HAS NO RIGHTS! People
        > do.

        But people have rights to their own property. The 5th Amendment says so. Which is why the whole concept is constitutionally suspect.

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

        • icon
          discordian_eris (profile), 11 Apr 2017 @ 11:41am

          Re: Re: Re: How is any of this constitutional

          "The right of the people to be secure in their persons, houses, papers, and effects..." 4th

          "No person... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." 5th

          In both cases they refer to the people having the rights, not the property. I agree that it is laughable that any court would consider the current asset forfeiture regime to be 'due process'. The word used to describe their arguments is sophistry. Unfortunately, the law is 90% sophistry and 10% pedantic bullshit. That is why a rigged 'due process' system endures. Well that and the fact that most judges act to perpetuate the system due to institutional cowardice. Which starts at the very top. You just can't get five Justices to actually man the fuck up at the same time -on the same case- very often.

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

    • icon
      btr1701 (profile), 11 Apr 2017 @ 11:06am

      Re: How is any of this constitutional

      > I really fail to see how asset forfeiture ever passed
      > constitutional muster. The complete lack of due process
      > involved just makes the fact that anyone with more than
      > two brain cells to rub together would defend it on
      > constitutional grounds.

      This.

      I've never understood it, either. Bad precedent was set back in the 1700 and 1800s when they used it to seize the assets of pirates on the high seas. Somehow it grew from that foundation into some sheriff on the side of road in Alabama stealing all your cash from you.

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

  • identicon
    Daydream, 10 Apr 2017 @ 3:55pm

    So...what's the legal basis behind asset forfeiture?

    Would it be possible, using a private prosecution, to bring charges against, say, the MPAA's headquarters for being a site used in money laundering (we all know they don't pay the actors what they should)?

    Or is it considered a police power rather than a civil right to bring prosecutions now?

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 4:41pm

      Re: So...what's the legal basis behind asset forfeiture?

      Good question, considering it's a civil suit.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 4:51pm

      Re: So...what's the legal basis behind asset forfeiture?

      the MPAA's headquarters for being a site used in money laundering (we all know they don't pay the actors what they should)?

      Perhaps you should look up the term money laundering...

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

      • identicon
        Daydream, 11 Apr 2017 @ 2:09am

        Re: Re: So...what's the legal basis behind asset forfeiture?

        You're right, sorry. I was looking for a fancy way to say 'fraud'. 'Fraud' doesn't sound like a legal term, it's only one syllable...

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 5:23pm

      Re: So...what's the legal basis behind asset forfeiture?

      "So...what's the legal basis behind asset forfeiture?"

      There is none, it is completely unconstitutional 100%.
      But its not exactly the first time someone ignored the constitution or tricked others into thinking that 1+1 = 3 either. It is very easy to fool people using the English language because people will often allow for metaphorical, slang, or just plain etymological ignorance trick them into thinking a very straightforward line of English in not very straight forward at all.

      Example.

      4th. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

      Many Jurists, legal scholars(scoff!) intentionally and wrongly conflate the word "unreasonable" to mean that anything the court or police to "think is reasonable" is all that is required to overcome the 4th. The 4th clearly states that the ONLY REASONABLE way to search or seize a citizen or their property is by obtaining a warrant. Probable cause, good faith, barking dog, smelling pot, or even witnessing a crime in progress is not sufficient to search an seize a person. There is a lot of history that goes to this, and due to the 14th Amendment and a SCOTUS ruling this Amendment was never fixed to allow officers at the state and local levels to arrest people.

      I really cannot intimate how much our laws are fucked up and how much leeway is given in the "attempt to serve the spirit of the constitution" while simultaneously, but completely destroying it!

      The 4th is written in such a way that you cannot even be arrested without a warrant, because at the time it only applied to the "Federal Government" and it was the job of state law enforcement or the local Sheriffs/deputies of the many states/municipalities to have that power over their citizens, which also included, taking your guns or your property at will, murdering you, or calling you a slave or owned property.

      This is why the US Constitution is incompatible with Slavery even without the 13th amendment, but we do like to make laws and most people are not able to infer that if all men are equal, then you cannot say that one man is no longer a man just to class them as slave/property. But hey, this will not be the first/last time a person will read plain English and reason with themselves that whatever rules that exist do not apply to their snowflake self.

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

      • icon
        The Wanderer (profile), 10 Apr 2017 @ 6:21pm

        Re: Re: So...what's the legal basis behind asset forfeiture?

        The 4th clearly states that the ONLY REASONABLE way to search or seize a citizen or their property is by obtaining a warrant.

        Where does it say that?

        I've looked several times, and devoted considerable attention to attempting to parse it in a way which squeezes this statement out of it, and I just don't see that.

        The clause about unreasonable search and seizure and the clause about warrants appear to be structurally distinct and, aside from their juxtaposition, unrelated. The authors of the amendment almost certainly meant for them to be related and interlinked, but they don't seem to have stated that intention explicitly in the text.

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

        • identicon
          Anonymous Coward, 10 Apr 2017 @ 8:40pm

          Re: Re: Re: So...what's the legal basis behind asset forfeiture?

          "Where does it say that?"

          Says it in plain English! Try a course on English where you learn how to diagram a sentence. Yes, I know that compound sentences make it a little more difficult but not that much.

          It clearly says that...
          1. You must have probable cause before you can issue a warrant.
          2. You must have a warrant particularly describing the place and person or things to be seized.
          3. If Warrant obtained, officers of the law may arrest and search and seize things, but only the things described in the warrant!

          Was that hard? Or do you need more education? Because if that was not clear... you need to leave this conversation to the grownups until you can read, otherwise you are a disservice to your countrymen unable to assist in the defense of liberty and instead have become a weakness that can be used to assail others by proxy. Or in short... the more idiots like you they can get to agree with their bastardization of the constitution, the smaller and more marginalized the voice of truth, knowledge, & reason becomes!

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

          • icon
            The Wanderer (profile), 11 Apr 2017 @ 5:02am

            Re: Re: Re: Re: So...what's the legal basis behind asset forfeiture?

            Where does any of that say that a search without a warrant is not reasonable?

            The Fourth Amendment does say that (paraphrasing) people have a right to be secure against unreasonable search and seizure, and that that right shall not be infringed upon; it also defines the conditions that must exist for a warrant to be issued.

            But it does not seem to say that a warrant must be issued in order for the search to be reasonable. It probably should say that, and the drafters probably meant something close to that (with wiggle room to prevent excluding e.g. things discovered in the course of perfectly ordinary, non-investigatory activity), but it does not seem to actually explicitly say that.

            If you can see how it does say that, please do share. I'd very much like to understand how it does, because I'd very much like to be wrong about the conclusion that it does not, but so far nothing has convinced me that I am.

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

            • identicon
              Anonymous Coward, 11 Apr 2017 @ 5:44am

              Re: Re: Re: Re: Re: So...what's the legal basis behind asset forfeiture?

              "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"

              If the second part of the clause describing the requirements for a warrant are ignored then the right is violated. The US Constitution gives a non-exclusive list of inalienable rights. These rights are something you are born with and cannot be separated from the person. Thus they are a right and not a license. The 4th states you have a right to be free from government taking you or your stuff. If the government wants to take you or your stuff they have to get a warrant that says who or what they are taking. This is why general warrants are unconstitutional. The requirement for the warrant is to make sure that the taking is constitutional as it requires a judge to approve a warrant that must have cause that is sworn to "by oath or affirmation", so there also is the requirement of "why". Who, what, where and why are all included in the 4th. Civil asset forfeiture is clearly unconstitutional but the only way to get the government to abide by the law is probably illegal.

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

              • icon
                The Wanderer (profile), 11 Apr 2017 @ 7:15am

                Re: Re: Re: Re: Re: Re: So...what's the legal basis behind asset forfeiture?

                If the second part of the clause describing the requirements for a warrant are ignored then the right is violated.

                That's an assumption, though. It's not explicitly stated in the Amendment. (The Amendment doesn't even explicitly state that the issuance of a warrant under the described conditions results in reasonability.)

                That's the loophole through with the courts have established the various exceptions to the warrant requirement.

                I can't even in good conscience argue that the warrant requirement should be absolute, either. If an ordinary, non-government-agent citizen would be permitted to look somewhere without permission (and to testify as to what was seen there), should a police officer or similar government agent be forbidden to look there without permission, in the absence of a warrant?

                The answer "yes" would seem unreasonable, in the ordinary meaning of that term - and yet if the warrant requirement were absolute then a "yes" would be required.

                Unfortunately, if you allow that one example of "reasonable" outside of a warrant context, you've opened the door to the possibility of others - and my understanding is that that's exactly what has happened, and that it's simply cascaded out until we reach the current situation.

                I believe the drafters of the Amendment included the qualifier "unreasonable" specifically so that "oh, of course he's allowed to do that, anyone is allowed to do that, trying to insist otherwise would be crazy" sorts of situation would not be barred - but it's been extended and expanded, over centuries of legal dispute and discourse, to cover far more than they would probably have intended.

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

                • identicon
                  Anonymous Coward, 11 Apr 2017 @ 8:05am

                  Re: Re: Re: Re: Re: Re: Re: So...what's the legal basis behind asset forfeiture?

                  You are either...

                  a troll...
                  -or-
                  ignorant on a level that cannot be repaired without being re-education on how to use a dictionary and that the definitions of words mean what the dictionary means and NOT what you WANT them to mean.
                  -or-
                  one of those political gas bags that actively seek to subvert and corrupt the Constitution. Not just the idea behind it, but the very words themselves by getting people to think that words don't mean what they mean.

                  You are a special kind of evil or idiot!

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

                  • icon
                    The Wanderer (profile), 11 Apr 2017 @ 8:24am

                    Re: Re: Re: Re: Re: Re: Re: Re: So...what's the legal basis behind asset forfeiture?

                    Neither of the above, in fact. I simply don't like to see people arguing from what appear to me to be false premises.

                    I would very much like to be able to read the Fourth Amendment as saying what you've claimed it says, but I have not managed to do that.

                    I honestly believe that the courts are reading it the same way I am, and that that is why they have held that exceptions to the warrant requirement exist.

                    If you want to convince the courts, you need to argue in their terms, on the same premises they hold - or else argue against those very premises. (And "Yes, it does say that" is an assertion, not an argument.)

                    Which words do you claim I need to be educated on? If you can point to specific words which mean things that I'm missing, or specific wording which means something I'm not catching, I'd be glad to learn.

                    I would love for the Fourth Amendment to explicitly say that a warrant is required, or to explicitly say that the issuance of a warrant, results in reasonability, or to explicitly define what "reasonable" means in any other way. Even if there were negative consequences from that explicit clarity (such as ruling out things which obviously should be permitted), it would make it possible to debate the matter on a much more solid footing.

                    But as far as I can see, the explicit wording of the Fourth Amendment does not do any of those things. It is, instead, highly reliant on the reader to implicitly extract those meanings from its explicit wording - and different people will disagree on what meanings are implied.

                    If you are arguing that the Fourth Amendment does do any of those things, it is incumbent upon you to either point to where it does, or explain how the understanding that it does inevitably arises from the explicit things which it does say.

                    If you can do either of those things, you might have a chance of convincing a court - and if you can improve the reach of the protections of the Fourth Amendment in the process, I say more power to you. (Convincing me, in the wilds of the Internet, means little or nothing.)

                    If not... well, to my eye it looks much more as if you are the one who is failing to understand the definitions of words and the logic of how they link together.

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

    • identicon
      Tin-Foil-Hat, 10 Apr 2017 @ 6:51pm

      Re: So...what's the legal basis behind asset forfeiture?

      It is a function of the executive branch of government. Ordinary people cannot prosecute unfortunately.

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

      • identicon
        Anonymous Coward, 10 Apr 2017 @ 8:52pm

        Re: Re: So...what's the legal basis behind asset forfeiture?

        You both are looking for the term, "civil lawsuit". This is where a plaintiff and a defendant battle in court where a plaintiff seeks to legally assign liability onto a defendant.

        Criminal prosecution deals with people breaking a law where criminal penalties apply and civil suit is where citizens can sue for damages to their property which is common for auto accidents for example. People can be criminally and civilly sued at the same time and for the same perceived wrong doing and neither preclude each other.

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

  • identicon
    Anonymous Coward, 10 Apr 2017 @ 5:11pm

    The basic mistake you seem to make is not understanding or ignoring a couple od basuc things.

    When kim's site sold memberships to Americans, the question of jurusduction is settled. Business was conducted in the US, American consumers purchased the products.

    Kim's various promotional dites marketed copyright material. The main Mega site processed the transaction to access the pirated materials and then paid a commission to his companies.

    In any siruation of fraud or money laundering it is entirely normal to seize the fruits of the illegal acts. Otherwise fraudsters like Bernie Madoff would be rich and victims would get no restitution.

    The charges against kim are serious. They show actions to both profit from illegal acts (piracy) but also to move the money away from the main site to clean it and make it appear as legal earnings. It appears to have been done in a manner to avoid prosecutions and to limit losses in case od legal problems with any of the companies.

    Kim's long and drawn out attempts to avoid extradition are done only to try to stymie the US legal system. While it is reasonable to fight extradition, it seems clear that his intent is to never face the charges. It would be a miscarriage of justice to allow him to use delay tactcs and continue to benefit from the wealth generated by his crimes.

    If he is innocent he needs only to go ti court and prove it. Trying everything possible to avoid that date with destiny should tell you everything you need to know. It says he clearly knows that he has a very weak position and he is more likely to stay out of jail pkaying tge NZ courts ti the end rather than facing the actual charges.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 6:22pm

      Re:

      "It's reasonable to fight extradition, but he shouldn't be fighting extradition."

      I saved you some time reading your rant.

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

    • icon
      Hugo S Cunningham (profile), 10 Apr 2017 @ 6:46pm

      The right to hire counsel of one's choice in complex cases [Was: Re

      @AC 5:11pm--

      Many of your arguments have merit, until you claim he "only needs to go to court and prove" his innocence.
      (1) He needs competent counsel to argue the complexities of his case, but the US government has frozen all the funds he could use to hire such counsel. A public defender with 30 other cases to handle at the same time does not cut it.

      (2) (a technical quibble) In US legal tradition, it is up to the prosecution to "prove" a defendant's guilt beyond a reasonable doubt, no to the defendant to "prove" his innocence.

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

      • identicon
        Anonymous Coward, 10 Apr 2017 @ 6:53pm

        Re: The right to hire counsel of one's choice in complex cases [Was: Re

        Item 1 does not stand up as he has spent millions in NZ trying to avoid court. Essentially he is using up all of his resources and then complaining about being out of money... while still living an expensive lifestyle.

        As for two while technically correct failure to present a defense leaves yge courts few options. The us government has an indictment in hand. He needs to defend himself and he isnt doing that playing legal tiddly winks on NZ.

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

        • icon
          Hugo S Cunningham (profile), 10 Apr 2017 @ 8:59pm

          Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

          My understanding is that he will *not* have access to funds for defense once he enters the USA. I would be receptive to a compromise where he would be extradited, but with access to sufficient funds to hire effective lawyers.

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

          • icon
            PaulT (profile), 11 Apr 2017 @ 1:19am

            Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

            With these kinds of people, I often wonder what they'd be saying if this was the NZ government going after an American. Somehow, I think they'd suddenly be reversing all their positions.

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

          • icon
            That One Guy (profile), 11 Apr 2017 @ 2:58am

            Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

            A 'compromise' the DOJ would refuse flat out, as they have no interest in him being able to afford a defense if they manage to force him to come to the US.

            I know this because Dotcom himself made a similar offer way back in 2012:

            'He said he would willingly go to the US if he and his co-defendants were given a guarantee of a fair trial, money to pay for a defence and funds to support themselves and their families. '

            If the DOJ had been willing to accept simple terms like that they could have agreed five years ago and the process would have been long over with, and yet for some strange reason they refused.

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

            • identicon
              Anonymous Coward, 11 Apr 2017 @ 4:09am

              Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

              And yet this "willingly of coming to the US" by Dotcom and then he hasn't done so willingly or voluntary in these last 5 years is one reason why the DOJ has labelled Dotcom as a "fugitive" on the basis that that Dotcom is refusing to come to the US as he he said he would willingly but now hasn't done so.

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

              • icon
                PaulT (profile), 11 Apr 2017 @ 4:25am

                Re: Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

                He said he'd come willingly on the proviso that some conditions were met by the DOJ. Has the DOJ honoured those conditions? If not, it's pretty faulty reasoning to say that he's not honoured his part of the deal.

                Not to say that this isn't their stance, but you really can't blame Dotcom for not wanting to fly to a foreign country where he's openly being denied a free trial, no matter which country that happens to be.

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

                • icon
                  That One Guy (profile), 11 Apr 2017 @ 4:31am

                  Re: Re: Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

                  Balderdash, the wolves have assured the sheep that if they only walk into the den they'll be sure to get a fair treatment. Only a guilty sheep would refuse a generous offer like that.

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

              • icon
                That One Guy (profile), 11 Apr 2017 @ 4:29am

                Re: Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

                Nah, as far as I know the extent of their 'Dotcom is a fugitive' argument is that he refused to come to the US at all, having the utter gall to fight extradition instead of being a good little tool and doing what the DOJ demands, it has nothing to do with the 'He offered, we declined' bit.

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

                • identicon
                  Anonymous Coward, 11 Apr 2017 @ 5:17am

                  Re: Re: Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

                  Dotcom offered a deal to the US stating that he would waiver the extradition and come to the US voluntary in return if the US would allow and give him access to the seized assets etc. to pay for his defense and living quarters whilst in the US. The US never gave him a response and now the DOJ are using the fact that he offered to waiver extradition and volunteer himself to the US but then hasn't done so and is now fighting extradition instead when he offered to waiver extradition to label him a "fugitive".

                  I am on Dotcoms side and there are times when you shouldn't say things but Dotcom likes to talk and tweet and when he does he puts his foot in it as what he says can be used against him like this offer of waivering the extradition in return to access of his money etc.

                  I hope that the US Supreme Court hears the case and then comes out along the lines that once the extradition process has come to an end and should extradition be granted and you still don't come to the US then to label the person a "fugitive" that way you will be absconding from actual extradition.

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

                  • identicon
                    Anonymous Coward, 11 Apr 2017 @ 5:25am

                    Re: Re: Re: Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

                    Also, I think the US Supreme Court should come out and say that you cannot seize the assets of a foreign person that are located outside of US Jurisdiction until extradition has actually been granted after all due process required and appeals in the extradition process and then only when the person has actually been convicted of an actual crime in a US court after all appeals etc.

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

                    • identicon
                      Anonymous Coward, 11 Apr 2017 @ 3:37pm

                      Re: Re: Re: Re: Re: Re: Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

                      The issue was that some of the restraining orders for Dotcom's funds had something like a maximum 2 year hold on the funds before they must be returned. The extradition process takes longer than the ability for the governments holding the funds to legally keep holding the funds. The US Govt has decided that loop hole should be decided in their favour instead of Dotcom being given his money back.

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

        • identicon
          Anonymous Coward, 11 Apr 2017 @ 8:23am

          Re: Re: The right to hire counsel of one's choice in complex cases [Was: Re

          Your understanding of the situation, US civil law, international treaties, US criminal law and pretty much everything else involved, is as bad as your spelling and grammar. Stop digging.

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

      • identicon
        Tin-Foil-Hat, 10 Apr 2017 @ 6:59pm

        Re: The right to hire counsel of one's choice in complex cases [Was: Re

        I don't know about New Zealand but in the US you aren't entitled to representation in civil cases. It's what makes civil forfeiture particularly egregious. A recent supreme court ruling said it was unconstitutional to freeze or otherwise prevent someone using funds to defend themselves without evidence of a crime.

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

    • identicon
      Dennis, 10 Apr 2017 @ 6:53pm

      Re:

      What a lot of garbage. Creating a novel. Propaganda

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

    • identicon
      Tin-Foil-Hat, 10 Apr 2017 @ 7:23pm

      Response to: Anonymous Coward on Apr 10th, 2017 @ 5:11pm

      He's going through the legal process that exists. They may end up with nothing if that is the outcome of the legal process. Why should they be more entitled to skate around the process? New Zealand would be nuts to turn over any assets even if they ultimately extradite .com. The US would never allow another country to confiscate funds even if they were justified.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 7:29pm

      Re:

      I have a couple of questions about your points.

      1) Jurisdiction
      Does that mean that operators of international websites need to simultaneously adhere to every country's often conflicting laws? If not, why not?

      2) Marketing copyrighted material
      Much like YouTube, Dropbox, Onedrive and Facebook? Isn't this what the DMCA safe harbors are for? Protecting sites from liability from the bad behavior of their users?

      3) Asset forfeiture
      I agree, criminals are not entitled to the fruits of their criminal acts. The problem is that as yet, Kim Dotcom is awaiting expedition to be accused of a crime. He is a suspect, not a criminal.

      4) Fighting extradition
      So, fighting extradition to the fullest extent is bad. How far can you fight extradition before it becomes just evidence of "delay tactics" rather than legal defense?

      5) Proving it in court
      Proving a negative is always hard, especially when the opposition has had copies of all the information for years to build a case, then had it destroyed before you can use it to build a defense; frozen/drained all your accounts and destroyed your main source of income. Seems to me like he's being railroaded at least a little bit.

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

      • identicon
        The Dipshit, 11 Apr 2017 @ 11:34am

        Re: Re:

        1: No, of course not. It's only American laws that need to be followed by everyone. The world will be so much better once people realize this.

        2: If he came to the US he could argue that in court. But he hasn't, so he's clearly guilty of something.

        3: See point 2.

        4: You can fight it for five minutes. Anything more is delaying.

        5: See point 2.

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

    • identicon
      Anonymous Coward, 10 Apr 2017 @ 8:46pm

      Re:

      "When kim's site sold memberships to Americans, the question of jurusduction is settled. Business was conducted in the US, American consumers purchased the products."

      You are a mindless numbnut. This hardly settles the question of jurisdiction. Your entire diatribe is exceptionally flawed and ignorant.

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

    • icon
      Narcissus (profile), 11 Apr 2017 @ 2:35am

      Re:

      Wow... Even though I see where you're coming from your statements are scary.

      "If he is innocent he needs only to go ti court and prove it".
      So let's see where this can lead...

      Say you have a website that allows other people to sell T-shirts. Obviously your website is accessible everywhere so now your liability has gone worldwide.
      One of your customers makes a nice Erdogan=Gollem T-shirt.

      So if I read your statements correct you would be fine with Turkey taking all of your stuff and you would be willing to personally go to court in Turkey to explain that you're innocent of insulting the Mustache in Chief?

      You're a braver man than I!

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

    • identicon
      Anonymous Coward, 11 Apr 2017 @ 5:37am

      Re:

      I hope they paid you to spew that absolute stinking pile of tripe.

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

    • icon
      btr1701 (profile), 11 Apr 2017 @ 11:13am

      Re:

      > While it is reasonable to fight extradition, it seems
      > clear that his intent is to never face the charges.

      That's the intent of *everyone* that fights extradition, genius.

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

    • icon
      btr1701 (profile), 11 Apr 2017 @ 11:14am

      Re:

      > If he is innocent he needs only to go to court and prove
      > it.

      In our system of government, defendants are not required to prove their innocence. The burden is on the government to prove their guilt.

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

  • identicon
    Rekrul, 10 Apr 2017 @ 6:17pm

    I imagine that the federal government will insist there's no reason for the Supreme Court to weigh in here, but hopefully the court decides to review the case.

    You're assuming that the court will rule in his favor, which is a huge longshot.

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

  • identicon
    Tin-Foil-Hat, 10 Apr 2017 @ 6:38pm

    Ironic

    It would be ironic if the impetus for change came about as a result of overreach levied against a foreigner.

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

  • identicon
    Anonymous Coward, 11 Apr 2017 @ 12:08am

    And the 2017 Churchillian Understatement Award Goes To...

    "The fact that courts have blessed the DOJ's actions doesn't make it any less concerning."

    NOTE: In 1951, Winston Churchill referred to World War II as "the recent unpleasantness."

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

  • identicon
    Simon Prophet, 11 Apr 2017 @ 12:57am

    civil asset forfeiture

    Civil asset forfeiture is wrong but can it be used against the suspects in my video? https://youtu.be/d634wEZPImI

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

  • identicon
    Dennis, 11 Apr 2017 @ 7:02pm

    The foreign restraining orders were made by District Court Judge O'Grady prior to a number of tow trucks arriving without notice and seizing Kim Dotcom's cars. I will not mention armed police or you would think that I am making things up. Someone needs to look at not what this judge has done but how? There claims to have been a Grand Jury consider an indictment. The indictment sent to NZ is beyond belief. The charges are directed towards entities nicknamed "Mega Conspiracy" over 300 times. Either the process by which the evidence be put to a jury did not occur, the nickname was added later or the process was out of control. If charging witchcraft the prosecutor could not get away with chanting "mega witch" 357 times. There cannot have been any impartial person in charge of process if it actually did, in fact, actually occur

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

  • identicon
    Anonymous Coward, 23 Apr 2017 @ 5:26pm

    The copyright mafia is really powerful, runining lives since its existence.

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


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