There are all sorts of problems with the federal government's arguments
against Megaupload. Even if the site and its founders are guilty of breaking the law, it's amazingly troubling to look at the details of how the government has gone about proving this. The most immediate situation, as we've been discussing, involves the handling of the data on Megaupload's servers.
Very soon after the raids, the feds told the hosting company that Megaupload used, Carpathia, that it no longer needed the data and that it could be destroyed
. As we pointed out at the time, this made no sense at all. After all, the government is alleging that this content is at the center of a criminal conspiracy ring. So why would it want the evidence destroyed? Furthermore, it seems likely that there could be plenty of evidence on those servers that support Megaupload's case (ah, perhaps that's why the government wants it destoryed!).
Of course, since then, a bunch of parties, including Megaupload, EFF, Megaupload users and (oddly) the MPAA have gotten involved
in trying to preserve the data, while the hosting firm, Carpathia has asked the court for permission to delete it, get paid for it, or have someone take it off their hands. Megaupload has specifically offered to pay Carpathia to get the servers, but since the government seized all its assets, it can't do that. Plus, the government has objected to this plan. Furthermore, the MPAA -- which still wants the data preserved -- has claimed that if the content goes to any third party it's infringement
-- and could lead to the revival of Megaupload.
The whole thing is a bit of a mess, and now Megaupload has pointed out that the government's argument would result in the destruction of key evidence it needs for its case
. The filing is very compelling.
The United States has seized and frozen all of Megaupload's assets, which, together with those seized from the other Defendants, include more than $60 million in cash and well over $100 million all told. In taking this extraordinary step, the Government must necessarily be alleging that every dollar of these assets is the proceeds of illegal activity. The basis of this allegation are the Government's self-selected copies of a tiny fraction of Carpathia's 1,100+ servers; even as to that fraction, the Court is asked to assume that every scrap of information on those servers amounts to criminal copyright infringement or perhaps some other illegal activity. If there is logic to the Government's actions, there is nothing lawful to be found across Megaupload's business as reflected on those 1,100+ servers. Only thus might the Government forbid Carpathia from so much as transferring to Megaupload the Mega Servers housing Megaupload content. Notably, the government is further forbidding Megaupload from using any of its assets to pay Carpathia for continued preservation of the Mega Servers' content. And, it has, in the face of Carpathia's earnest submission that it will cease preserving the servers absent the requested relief, urged the Court to deny such relief, because "the government has already completed its acquisition of data from the Carpathia Servers authorized by the warrant." ... In essence, the Government has taken what it wants from the scene of the alleged crime and is content that the remaining evidence, even if it is exculpatory or otherwise relevant to the defense, be destroyed. And by refusing to permit Megaupload to use its assets to mount a defense, the Government is effectively making sure that Megaupload has no practical way to preserve the evidence itself.
Such a course of proceeding by the Government would be troubling in any circumstance. But this is, of course, a criminal case. It is, in fact, what the Government has called the largest such case it has ever brought in the history of alleged copyright infringement. If the Government's position now wins the day, the integrity of of what ensues will be lost--the Mega Servers will have been wiped and potentially exculpatory or relevant evidence will have been spoliated, en masse, before being properly surveyed by the parties, not to mention the Court. The Government's case may be advantaged by this course of action, but much else will suffer and due process will not permit it.
The filing also rips to shreds
the Justice Department's claim that the content should be destroyed because some of it may contain child pornography, by noting that it appears the US government is advocating the destruction of evidence of child porn
, rather than using it to capture those responsible:
Its reasoning then becomes altogether mystifying when it asserts (without any substantiation) "that the Carpathia Servers may contain child pornography, rendering the Carpathia Servers contraband." ... To take the Government at its word, therefore, it at best is greeting with equanimity and at worst is advocating, the imminent destruction of evidence of child pornography. It is passing strange for the Government to express preference for the destruction of evidence of criminal misconduct over the preservation of it for criminal investigation.
The filing is worth reading, as it goes on in great detail, about the ridiculousness of the government's position, and how it is clearly destroying important evidence in this case, hoping to set it up so that Megaupload can only use the sliver of evidence that the government chooses to make available to it. And it's doing this before the actual case begins, where Megaupload doesn't even know the full details of what evidence is being presented and how it can defend itself. Without that, it's highly questionable, and almost certainly a violation of due process to support the destruction of evidence when Megaupload doesn't even know what evidence it needs to defend itself.
As Tim Lee writes (at the link above) about this filing, this whole situation looks really bad for the government, and seems completely contrary to our basic concepts of due process and innocent until proven guilty:
The government's intransigence on the preservation of evidence is the latest example of the government's scorched-earth approach to the Megaupload prosecution. Theoretically, criminal defendants are innocent until proven guilty. Yet the seizure of Megaupload's servers, freezing of its assets, and arrest of its top executives did immense damage to the company long before they had a chance to tell their side of the story to the jury. Now, the government seems to be trying to deny Megaupload the opportunity to fully defend itself in court. Megaupload may be found guilty, but like everyone else it has the right to a fair trial.
Indeed. Megaupload may not be a sympathetic defendant at all, and may very well have violated the law. But if the government truly believes it has a strong case, why is it trying so hard to destroy so much evidence? If the case is as strong as the Justice Department makes it out to be, then surely it can withstand Megaupload having access to all of the evidence? That the Justice Department is fighting so hard to destroy evidence in the case seems like a clear admission that it knows its case is incredibly weak.