---BREAKAWAY CIVILIZATION ---ALTERNATIVE HISTORY---NEW BUSINESS MODELS--- ROCK & ROLL 'S STRANGE BEGINNINGS---SERIAL KILLERS---YEA AND THAT BAD WORD "CONSPIRACY"--- AMERICANS DON'T EXPLORE ANYTHING ANYMORE.WE JUST CONSUME AND DIE.---
Thursday, January 3, 2013
Kim Dotcom: US “planted” evidence to obtain illegal search warrants Megaupload says it kept infringing files—only because US ordered it to do so.
Megaupload has accused US investigators of "planting" evidence the
government used to prove that Megaupload knowingly kept copyrighted
files on its servers and ultimately shut the file-sharing site down. In a
new brief, Megaupload argues that the key evidence being used against
it—36 unauthorized copies of various movies—are files that the company
kept specifically in order to satisfy the government's demands.
Megaupload's domain names were seized by the feds one year ago.
In addition to the case against Megaupload founder Kim Dotcom, there is
the case of innocent bystander Kyle Goodwin, who wants to regain the legitimate files he lost
because of the Megaupload shutdown. The Goodwin case resulted in the
unsealing of affidavits used to obtain the search warrants leading to
the seizure of Megaupload domain names. Dotcom's legal team argued in a
brief filed yesterday in United States v. Kim Dotcom (PDF)
that the affidavits show the government "omitted critical, exculpatory
information regarding whether, why and how Megaupload knew it was
hosting criminally infringing files."
In the unsealed affidavits, government officials say they informed
Megaupload in June 2010 that 39 infringing copies of copyrighted movies
were on the servers Megaupload leased at Carpathia Hosting, and that
Megaupload still had not removed 36 of them by November 2011, according
to the Dotcom brief. This statement "appears in each relevant affidavit
and is the only direct, corroborated evidence the Government purports to
offer as proof that Megaupload had requisite knowledge" that it was
hosting copyrighted content, the brief states.
The June 2010 event is from a separate case in which the government
had a criminal search warrant apparently targeting a Megaupload user,
and Megaupload says it was led to believe that it was not a target of
that case itself. Government officials never communicated directly with
Megaupload, "instead deputizing Carpathia to communicate on its behalf"
because of "complex jurisdictional issues." Carpathia allegedly told
Megaupload that it must keep evidence related to the infringing files.
As for those 39 movies, Megaupload says it cooperated with Carpathia
to supply the files to the government while preserving the files in
their original condition so as not to tip off users to the
investigation. Because the warrant was sealed, Megaupload was supposed
to cooperate with Carpathia to comply with the warrant "without publicly
opening a ticket as it normally would."
"Megaupload's preservation of the status quo, particularly by not
taking down or otherwise disturbing the files identified in the June 24,
2010 warrant, was faithful to the Government's express desire,
reflected by the Magistrate Judge's order sealing the warrant… and by
Carpathia's instructions on the Government's behalf, for Megaupload to
ensure that evidence would remain preserved and that the target users
would remain unaware of the investigation," the Dotcom brief states.
The brief then argues that the government used the June 2010 warrant
to collect evidence against Megaupload in the ostensibly separate case
that led to the January 2012 shutdown of the website:
Although it is now apparent that Megaupload, itself, was
the target of a criminal investigation at the time it received the June
24, 2010 warrant from Carpathia, Megaupload was led to believe otherwise
at this time. Indeed, it was steered to cooperate with the Government
by Carpathia's express assurance that the Government had given it 'no
reason to believe the [sic] MegaUpload is the target of the
investigation.' By all indications, the Government tapped Carpathia to
convey the June 24, 2010 warrant to Megaupload, thereby planting what
the Government would later claim, for purposes of this case, amounted to
criminal knowledge that Megaupload was hosting infringing files, while
simultaneously lulling Megaupload into thinking it was not a
target of its ongoing investigation … and, what is worse affirmatively
leading Megaupload to understand from the warrant's sealing order and
Carpathia's representations that Megaupload should take no action with
respect to the infringing files lest it tip off the ostensible targets.
A separate warrant shows that the government's investigation into
what it called the "Mega Conspiracy" began in March 2010. Although
Megaupload speculates that the June 2010 warrant targeting one of its
users was used deliberately to entrap Megaupload, it seems plausible
that the cases were unrelated at the time.
An e-mail concerning the warrant that Carpathia's Philip Hedlund sent
to Megaupload on June 25, 2010 shows the delicate balance Carpathia
tried to strike, one that might satisfy both the government and one of
its biggest customers. The e-mail does not tell Megaupload to keep
infringing material, but also contains no request that Megaupload delete
any files. The e-mail reads:
Please find attached a Search Warrant received by
Carpathia today. Over the past days (since our return from our visit to
you); Carpathia has been negotiating with the Government to avoid
receiving a search warrant that could result in a seizure or imaging of
the servers Carpathia provides to Mega. Instead, we've managed to
convince the Government to issue this sealed (meaning we cannot disclose
to anybody) warrant with an exception to disclose to you. Please know
that we attempted to convince the Government to work directly with Mega
on this matter, but given the complex jurisdictional issues, they have
been unwilling. Nonetheless, Carpathia feels as if we've achieved a
small victory by preventing the Government from issuing a search warrant
giving them power to seize or image the servers themselves. Kim, we
were able to do this specifically because we relayed to the Government
Mega's willingness to work with the Government for these types of
requests -just as we discussed during the last day of our visit (boy, am
I happy we discussed it).
Carpathia needs your help collecting the information sought in this
warrant so Carpathia can hand the information over to the Government. We
have no reason to believe the MegaUpload is the target of the
investigation. Mega's assistance in providing this information is the
path most likely to avoid any disruption of services.
The e-mail then asks Megaupload to "move all the files" to a disk to be passed on to the government.
Separately, the warrants used to raid Dotcom's home in New Zealand have already been ruled illegal
by a New Zealand judge. The US government's method of obtaining
warrants "calls into grave question the legality of any and all seizures
effected pursuant to those warrants," and is also relevant to Goodwin's
request to get back his own files, the Dotcom brief from yesterday
states. Dotcom's legal team stops short of asking the judge in the United States v. Dotcom to
invalidate the warrants used to seize Megaupload domains, but asks for
permission in future hearings to "address the validity" of the warrants
and any related materials that might be unsealed in the future.
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