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DOTCOM saga - updates
IainB:
Two interesting news items from the NZ Herald:
* 2013-03-25: Dotcom case back in court
Kim Dotcom's case is back in court today where legal arguments are happening behind closed doors...
(Read the rest at the link.)
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* 2013-03-25: Residency agreed at last minute
Kim Dotcom questions whether his bid to live here was granted to make him easier to arrest and extradite to US.
Kim Dotcom's residency application stalled and was then suddenly lifted.
The Security Intelligence Service blocked Kim Dotcom's application for residency after learning of the FBI investigation into internet piracy - then lifted it at the last minute to allow him and his family to move to New Zealand...
(Read the rest at the link.)
--- End quote ---
Neither article seems to carry any mention of what action is to be taken regarding the apparent perjury by police.
IainB:
In the US, it seems that, if the State can't lay a charge legally - i.e., under the prevailing law - then altering the law to fit the charge might be the best way around that.
Post from torrentfreak:
(Copied below sans embedded hyperlinks/images.)
U.S. Flip-flopping Proves Us Right, Megaupload Tells Court
In a filing just submitted to a U.S. federal court Megaupload is using the Government’s own words against it, hoping to get the case against it dismissed. Megaupload points out that the Department of Justice is trying to change the law to legitimize the destruction of Megaupload. The DoJ wants to amend the law so that it’s possible to serve foreign defendants, while it previously argued in court that the authorities didn’t require such power.
While Dotcom’s legal battle in New Zealand focuses on spying efforts and unwarranted seizures, the U.S. federal court still has to decide on Megaupload’s request to dismiss the entire case against the company.
Several months ago Megaupload filed a request to dismiss the indictment against it, until the U.S. Government finds a way to properly serve the company.
According to “Rule 4” of criminal procedure the authorities have to serve a company at an address in the United States. However, since Megaupload is a Hong Kong company, this was and is impossible.
Only by dismissing the case can the court protect Megaupload’s due process rights, the defense argued. However, the Government disagreed and asked the court to deny Megaupload’s motion. Among other things the Government claimed that the federal rules shouldn’t be interpreted so narrowly.
A company should only be served on a U.S. address if they have one, they argued.
Last week a new chapter was added to this standoff and it turned out that, behind the scenes, the Department of Justice is trying to change the law in its favor. In a letter to the Advisory Committee on the Criminal Rules the DoJ made suggestions that would directly influence the Megaupload case.
Among other things the Government asked to “remove the requirement that a copy of the summons be sent to the organization’s last known mailing address within the district or principal place of business within the United States,” and to amend the Rule to “provide the means to serve a summons upon an organization located outside the United States.”
These were the exact issues Megaupload used in its request to dismiss the charges against it, and Megaupload was even cited in the letter as an example of why the law should be improved.
The question is, however, whether the proposed amendments will help or hurt the Government’s case. Megaupload’s defense argues the latter and has now submitted the letter to court, using it as evidence that the authorities knew all along that they were not playing by the rules.
“The Government’s letter is directly relevant to the Court’s consideration of Megaupload’s pending motion to dismiss without prejudice, as it contradicts the Government’s repeated contention that it can validly serve Megaupload—a wholly foreign entity that has never had an office in the United States—without regard for Rule 4’s mailing requirement,” Megaupload’s lawyers write.
Megaupload’s legal team goes on to explain that the letter shows that the Government knew it couldn’t possibly serve the Hong Kong company.
“To the contrary, the Government explicitly acknowledges in the letter that it has a ‘duty’ under the current Rule to mail a copy of the summons to a corporate defendant’s last known address within the district or to its principal place of business elsewhere in the United States.”
“Moreover, by seeking to have the mailing requirement eliminated, the Government implicitly admits it cannot validly serve Megaupload consistent with Rule 4 as currently written,” Megaupload writes.
Adding up the bits and pieces Megaupload’s lawyers argue that the letter proves that there was no legal basis to destroy Megaupload. It therefore asks the court to take the letter into account when it decides on the motion for dismissal.
“The Government’s letter to the Advisory Committee thus confirms what Megaupload has argued all along—that the Government indicted Megaupload, branded it a criminal, froze every penny of its assets, took its servers offline, and inflicted a corporate death penalty, notwithstanding the fact that the Government had no prospect of serving the company in accordance with current law, yet to be amended.”
“Megaupload should not be made to bear the burdens of criminal limbo while the Government seeks to rewrite the Federal Rules to suit its purposes,” the lawyers conclude.
The court now has to decide whether or not Megaupload should be dismissed from the indictment. If that’s the case, Megaupload plans to give users access to the files that were seized, and it will also free up funds for a proper defense.
--- End quote ---
IainB:
Latest news update on the Dotcom extradition case in NZ:
(Copied below sans embedded hyperlinks/images.)
Dotcom granted leave for Crown appeal
KIRSTY JOHNSTON
Last updated 14:25 16/05/20
Kim Dotcom has been granted leave to appeal his case against the Crown in the Supreme Court.
The MegaUpload mogul's legal team applied in March to be heard in the country's highest court after a decision about disclosure made in the Court of Appeal went against him.
Dotcom's lawyers want to be able to view the documents that make up the basis of the US Government's case against him.
US authorities are seeking to extradite the German-born internet entrepreneur to stand trial on criminal charges alleging copyright piracy and racketeering.
The Crown, on behalf of the US, argue he should not be allowed to see the documents..
Judges in the District Court and High Court ruled in favour of disclosure, but the Court of Appeal ruling made in March said extradition hearings were not trials and the full protections and procedures for criminal trials did not apply.
So far, US authorities have filed a 109-page record of the case against Dotcom, the contents of which are suppressed.
Dotcom denies his MegaUpload internet storage facility encouraged copyright breaches and wants to use the extradition hearing to challenge the assumptions made against him.
A date is yet to be set for the Supreme Court hearing.
Dotcom's extradition hearing is due to get under way in August, however it looks likely to be delayed again, as several strands of the case continued to be appealed.
The 39-year-old, a New Zealand resident, was arrested in a dramatic raid on his rented Coatesville mansion, north of Auckland, on January 20 last year.
Computers and assets were seized as New Zealand police co-operated with US authorities.
- © Fairfax NZ News
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IainB:
News update on the Dotcom case from NZ Herald:
(Copied below sans embedded hyperlinks/images.)
Dotcom: Police ordered to return assets
Updated 7:27 PM Friday May 31, 2013
The court has ordered the return of some assets belonging to Kim Dotcom and three of his associates, seized during the January 2012 raids.
High Court Judge Helen Winkelmann found police search warrants used during the raids were invalid because they could not authorise the seizure of irrelevant material.
She ordered that none of the items seized, nor copies or clones of them, be permitted to leave New Zealand and that any irrelevant material be returned to the four men.
Police said they were considering the judgement, and would work with Crown Law to determine their next steps.
"Police note that the judgement requires Mr Dotcom to provide Police with the appropriate passwords to enable Police to access the items seized (eg hard drives and laptops) in order to assess their content for relevance,'' a statement said.
"The judgement also provides for relevant material to be released to the FBI and for irrelevant material to be returned to Mr Dotcom and his associates.''
--- End quote ---
(I wonder what that all means?)
I have just seen this more informative report and summary from Stuff:
(Copied below sans embedded hyperlinks/images.)
Police have to return material to Dotcom
KIRSTY JOHNSTON
Last updated 15:05 31/05/2013
HE WINS AGAIN: Kim Dotcom has won the right to material seized from his home returned.
A judge has ordered the police to sift through all digital material taken illegally from Megaupload founder Kim Dotcom and to return anything irrelevant to their investigation- at their own cost.
Clones of hard-drives already sent to the United States must also be returned if they contain personal information, while any further copies must be destroyed, the court ruled.
Dotcom and his co-accused will then receive clones of devices deemed to be relevant to the case.
The judgement, made by chief High Court justice Helen Winkelmann today, says the seizure of devices without sorting them first was unlawful, and that the police have no right to keep irrelevant material.
Her orders follow a three-day remedies hearing in April, where Kim Dotcom's lawyers argued for the return of the material, while Crown lawyers said that was unnecessary.
It is the latest blow to the Crown and police following the January 2012 raid on Dotcom's Coatesville mansion.
The raid, requested by the FBI and carried out by the New Zealand police Special Tactics Group, was previously deemed illegal by the High Court last year, when Justice Helen Winkelmann ruled the warrants authorising it were too general.
Today, Winkelmann repeated that position, saying the defects in the search warrants "were such that the warrants were nullities", and that a miscarriage of justice did result.
She said, contrary to the police view, that she did not regard the deficiencies as minor or technical.
"The warrants could not authorise the permanent seizure of hard drives and digital materials against the possibility that they might contain relevant material, with no obligation to check them for relevance," Winkelmann wrote. "They could not authorise the shipping offshore of those hard drives with no check to see if they contained relevant material. Nor could they authorise keeping the plaintiffs out of their own information, including information irrelevant to the offences."
Winkelmann asked the police to inform the FBI of her decision.
Police are expected to complete the request at their own cost.
DOTCOM FOR DUMMIES
So far, the Dotcom case is up to five separate strands in four different courts. Confused? We don't blame you. But it's got a long way to go yet, so we've created a five-point guide to the case to help out.
1. Disclosure. Kim Dotcom's lawyers want to know what evidence the US Government has against them. The US says "disclosure" of evidence isn't required for an extradition hearing. Although the High Court ordered the evidence to be handed over, the Court of Appeal overturned that decision. This argument is now heading for the Supreme Court.
2. Search and Seizure: Last year, a court ruled the search warrants used in the January raid on Dotcom's house were too broad, and therefore illegal. Today, Dotcom's lawyers were granted a "remedy" - all his hard-drives to be returned to him. This is now likely to go to the Court of Appeal.
3. Compensation from police: This is also related to the search and seizure. Dotcom's team are effectively suing police for illegally searching his home and taking his property. This proceeding has the potential to get sexy - with the defence lawyers proposing to put two very senior police - including an Assistant Commissioner - on the witness stand. Also in the High Court.
4. Compensation from the GCSB: After it was revealed that the country's spy agency illegally recorded Dotcom's communications for a month (illegal because it's not allowed to spy on New Zealanders, and Dotcom's a resident), the Mega founder's lawyers applied to also get compensation from the GCSB. Originally, this was joined to the police hearing, but it's now separate. High Court.
5. The Extradition: Originally set down for March, due to the myriad of complications in the case, the extradition has now been moved to August. At this stage, it's looking likely it will be delayed again. Usually extradition hearings are relatively straight forward, but don't cross your fingers in this case.
- © Fairfax NZ News
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Tinman57:
Oh yeah, you just know that the U.S. is going to comply with everything right down to the letter....
<Yep, that's sarcasm alright....>
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