There is a rather curious new item in
Torrentfreak. In the matter of
the undeleted files (see emboldened quotation below), it seems that Megaupload is currently not being
allowed by the DOJ to attempt to establish in a court of law a defence that it (MU) had effectively been entrapped by what could apparently have been a tricky piece of underhand work
by the DOJ.
But, given the facts as described (and which are apparently not disputed by the DOJ), then anyone (including the man on the Clapham omnibus) would presumably be able to see for themselves that that
must have been the outcome/effect, whether or not the the DOJ had acted intentionally in that regard.
However, if, under the hard light of scrutiny in a legal court it can be shown that Megaupload acted in good faith in leaving the files undeleted, and if the Government did not mention Megaupload’s full cooperation in the indictment or the search warrants but instead used the fact that the files were not deleted as an example of criminal behavior as charged, then one obvious conclusion is that the Government may have acted in a deliberately biased or prejudicial manner so as to maximise the appearance that MU had exhibited criminal behaviour, whilst at the same time concealing from the court that there were mitigating circumstances that could clear MU of such a charge altogether. In that hard light, the charges might even seem bogus.
The thing is that this would seem to be a very easy thing for MU to demonstrate (it is factual), but a very flimsy assertion of guilt for the DOJ to hang on to. If it
were challenged in a court of law, then it could even end up that the court could rule that the raids were carried out illegally under US law, as they have
already been so deemed under New Zealand law.
So the DOJ has apparently decided to try to block MU from attempting to establish in a court of law a defence that it (MU) had effectively been innocent, if not entrapped, on this matter alone.
This seems remarkable to me. I hadn't realised that, under US law, an accused person could be blocked from defending themselves in such a manner.
If I have got all this aright, then I am completely mystified as to how it can be construed to be due legal process. I mean, how can a defence which points to genuine (not hypothetical) mitigating circumstances
not be allowed? It would mean that the charges against MU would need to be reduced, if not collapsed.
It does seem to me as though someone in the Establishment must want to hang MU out to dry
awful bad, and regardless of the legal niceties, and for such apparently legally flimsy and dubious accusations, to be so tightly protected by the Establishment.
Regardless of whether he has broken the law, it would seem to be no wonder that Dotcom might wish to avoid deportation to the US to face charges. How
could he be expected to receive a fair hearing/trial given these (QED) and other circumstances (e.g., the NZ legal view)? The whole thing stinks - the planning and spying prior to the raid, the
illegal raid, the apparent deliberate perjury by a/some police witnesses, the extraordinary mistakes/BS by the NZ government, the GCSB admissions of illegal spying.
The only bit that
doesn't seem to stink so far is the good old objective NZ judiciary - which gives me some hope for that country's integrity.
Here is the
Torrentfreak news item:
(Copied below
sans embedded hyperlinks/images.)
Megaupload “Planted Evidence” Claim is an Unfounded Conspiracy Theory, U.S. Says
Ernesto, February 15, 2013.
The Department of Justice has responded to Megaupload’s claims that they “planted” evidence and tried to mislead the court. According to United States Attorney Neil MacBride these allegations are “sensationalist rhetoric” and a “conspiracy theory.” The Government says it never asked Kim Dotcom’s file-hosting service to preserve any infringing files, and asks the court to deny Megaupload’s request to be heard on the matter.
Early January Megaupload filed a motion claiming the U.S. Government deliberately misled the court.
When the U.S. Government applied for the search warrants against Megaupload last year it told the court that they had warned Megaupload in 2010 that it was hosting infringing files.
Through its hosting company Megaupload was informed about a criminal search warrant in an unrelated case where the Government requested information on 39 infringing files stored by the file-hosting service.
At the time Megaupload cooperated with this request and handed over details on the uploaders. The files were kept online as Megaupload believed it was not to touch any of the evidence. However, a year later this inaction is being used by the U.S. Government to claim that Megaupload was negligent, leaving out much of the context.
According to Megaupload this course of action was misleading and the company now wants to address the matter through a so-called Frank’s hearing.
However, in a new filing yesterday the U.S. Government asks the court to deny Megaupload’s request. According to United States Attorney Neil MacBride it would allow Megaupload to circumvent the Federal Rules of Criminal Procedure.
The United States Attorney further refutes Megaupload’s “planted evidence” allegations, saying that they’re an unfounded conspiracy theory, and certainly not enough to grant a hearing.
“Megaupload has supplied nothing but a conspiracy theory; this is not enough,” the U.S. writes.
“Because Megaupload’s claims are insufficient as a matter of law to authorize its intervention in this matter, Megaupload has wrapped them in layers of sensationalist rhetoric. However, Megaupload’s claims regarding government misconduct are unfounded.”
The Government argues that it never asked Megaupload to preserve any of files that were under investigation in the NinjaVideo case.
“The government made no preservation request, and the government is not aware that the service of a search warrant creates an obligation on the part of the recipient of a search warrant to preserve infringing content on a computer in a way that continues to make it available for illegal download.”
Megaupload’s argument that they didn’t want to disable access to the files, because this could alert the targets of the investigation, is also weak according to the U.S. – especially when Megaupload regularly disabled access to infringing links.
“If this [removing links] practice was common, it would not necessarily be alerting. Megaupload also, when removing infringing content, did not as a practice inform customers that their content had been removed. It is also unlikely that any Court would interpret a sealing order to require the continued distribution of infringing content,” the U.S. writes.
The U.S. basically says they did not specifically request that the files should remain intact, or be removed.
Dotcom’s lawyers may not contest this specific language, but find it misleading that the Government did not mention Megaupload’s full cooperation in the indictment or the search warrants. Instead, the U.S. uses the fact that the files were not deleted as an example of criminal behavior.
The U.S., however, believes that is was not necessary to provide the complete context.
“Megaupload’s theory that the government misled the Court by omitting a discussion of the June 24, 2010 search warrant misstates the relevant law. An affiant does not need to include every potentially relevant fact in a seizure warrant affidavit,” the U.S. writes.
The above, leads the Government to conclude that Megaupload should be denied a hearing on the matter.
However, United States Attorney Neil MacBride does not object to a Megaupload representative being heard as a witness in the hearing that’s scheduled for Megaupload user Kyle Goodwin, the reporter who is trying to gain access to his lost files.
“Though Megaupload’s claims are false, nothing prevents Kyle Goodwin from asserting them. If Mr. Goodwin wants to develop a factual basis for his claim, and the Court allows the live testimony, Mr. Goodwin could call a representative from Megaupload as a witness.”
The court now has to decide what action is appropriate here.
This upcoming decision may become crucial for the ongoing criminal proceedings. If the hearing is granted and the warrants are declared unlawful, as happened earlier in New Zealand, then Kim Dotcom and his fellow defendants will be at a significant advantage.
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