from the should-be-public-info dept
In the ongoing case involving Kyle Goodwin trying to
get back
the content that he backed up via Megaupload and lost as a result of
the US taking down the site, the EFF (representing Goodwin) has asked
the court to unseal the initial seizure warrants that the US relied on
to grab the Megaupload servers from hosting company Carpathia. They
point out the number of concerns that New Zealand courts have raised
with the legitimacy of the warrants, as well as some basic principles
related to the limits on such warrants within the US.
.... these materials will certainly assist him to
learn what steps, if any, the government took to inform the court of the scope of its planned
seizure and related execution of search warrants. They would also show any plan provided by the
government or the court in the warrant materials for minimization to protect innocent users
before the seizure or to segregate the data after seizure. Federal judges increasingly impose
detailed conditions prior to execution of computer searches.... For example, Judge Kozinski in
the Ninth Circuit has observed that if the government refuses to forswear the ability to retain or
use data that should have been segregated initially, the judge “should order that the seizable and
non-seizable data be separated by an independent third party under the supervision of the court,
or deny the warrant altogether.” .... Unsealing will allow Mr. Goodwin, as well as the general public, to learn which, if
any, such conditions were undertaken in this case.
Similarly, under the Fourth Amendment people have a right to be secure
in their “papers”
and “effects” against unreasonable searches and seizures. A person's
“effects” may be the
subject of Fourth Amendment protection even where there is no particular
privacy or liberty
interest.... A property seizure occurs when a
governmental intrusion meaningfully interferes with an individual's
possessory interest.... The Fourth Amendment analysis, in turn, requires
the Court to determine whether
the seizure was “reasonable.” Gaining access to the materials that
served as a basis for the
government’s seizure of his property can assist Mr. Goodwin and other
innocent Megaupload
users in determining whether the seizure was unreasonable.
Separately, they note that there is tremendous public interest in
revealing these details, and criminal cases should be done as publicly
as possible. And, considering how frequently the US government is now
seizing websites, the issue is of tremendous importance:
The public also has a strong interest in understanding the government process in
executing search warrants on cloud computing servers that contain innocent third-party
property. Seizures of domain names, and resulting searches of related servers, are tools the
government is using with increasing frequency in criminal copyright enforcement actions. For
example, the federal government has reportedly seized more than 800 websites so far under its
Operation in our Sites campaign. The government has issued press releases and otherwise
sought to publicize its efforts, obviously giving its own perspective on its actions. Legislators,
the media, and the public are vigorously debating the very issue of these domain name seizures
and related searches, even as a large percentage of Americans continue to use cloud computing
services. Access to judicial records would ensure a more accurate and informed public debate,
rather than one informed merely by the government’s press releases
Finally, they note that the government has already said it has no more
need for the servers in question, so why would it make sense to keep the
seizure warrant sealed? It seems difficult to argue with any of these
points... but I have a feeling that the US Attorneys are about to try to
do exactly that...
http://www.techdirt.com/articles/20121022/17320820793/eff-files-motion-to-have-court-release-seizure-warrant-megaupload-case.shtml
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