Based on illegality?
The extradition became official when the Crown Prosecution filed the official paperwork by the FBI in March. However, the case hit several legal setbacks soon after. A judge said that a court order should never have been used to seize Dotcom’s cars, cash and property. Justice Judith Potter said that it had “no legal effect” and was “null and void”. This came after the Police and the Government’s legal advisers admitted making a “procedural error” when filing documents. Once they admitted their mistake, they tried to get a retrospective order for the already seized assets.
Justice Potter gave a temporary order, but a week later gave Dotcom his Mercedes-Benz G55 AMG truck back, in addition to a further NZ$20,000 a month for living expenses since his money was seized by the Police. In April, he managed to get the court to allow him Internet access; while in May, the court no longer saw him as a flight risk and removed the electronic bail.
In June, the raid of his home in January was deemed illegal by the High Court. Chief High Court judge Helen Winkelmann said that they gave the authorities a too-wide range of items to seize, and did not adequately describe the allegations against Dotcom. In that case, it was also revealed that the FBI had made copies of some of the hard drives seized – despite the court order. Winkelmann ordered a judicial review of the raid, in order to determine what items are “relevant” for the case.
In late September, it was revealed that incorrect information by the New Zealand Police’s Organised and Financial Crime Agency (Ofcanz) saw the intelligence agency Government Communications Security Bureau (GCSB) illegally spy on Dotcom. Under New Zealand law, GCSB is not allowed to spy on New Zealand citizens or permanent residents – which was not the case for Dotcom, but Ofcanz failed to tell GCSB that information.
GCSB’s involvement came after Ofcanz asked the agency to obtain information that related to the “location, awareness on the part of the wanted person of law enforcement interest in them, or any information indicating risk factors in effecting any arrest”. According to The New Zealand Herald, spying began on December 16, 2011 and ended the day the raid was conducted – January 20.
It appeared that the government wanted to hide it, as the Deputy Prime Minister Bill English – acting as the Prime Minister as John Key was in the US with his son – signed a “ministerial certificate”, basically suppressing it. Key is said to have known a week before it was revealed to the nation, and the certificate was voided because it was an unlawful activity.
Key has apologised to Dotcom on the spying, but opposition parties have called on an inquiry. Dotcom has accepted the apology, but also supports the idea of a “full, transparent & independent inquiry into the entire Mega case.”
Since the revelations, the GCSB has been added to the judicial review of the raid and has been allowed access to information about it spying on him. This has also open up a way for Dotcom to seek damages from both the GCSB and the Police.
A FBI double-cross?
Just before the end of the year, a new aspect into the case emerged. Megaupload assisted the FBI back in 2010 as part of their criminal investigation into another streaming service called NinjaVideo, which was using their Megavideo service in order to deliver pirated material.
According to Ira Rothken, from Dotcom’s legal team and talking to Wired, the site responded as “good corporate citizens” by keeping it a secret and turned over information on the operators, including information on 39 pirated movies in that warrant.. That information assisted in the arrest and conviction of five administrators of NinjaVideo, including owner Hana Beshara.
Now, that list of 39 NinjaVideo files are now being used as evidence against Megaupload. According to prosecutors, they say that 36 of the 39 videos were left on their servers. Rothken, however, counters that it would have been accused of evidence-spoliation if it removed the movies.
In January, Dotcom’s legal defence team filed new court documents that challenge the warrants used to seize his documents. He said that the FBI “deliberately misled the court” with warrants that excluded “critical facts” that would have shown that the company’s efforts to assist them. They also claimed that an agent contacted Megaupload’s hosting provider Carpathia to secure the files, and not to alter or change the files. They also pointed to an email from Carpathia’s Phil Hedlund that detailed the warrant.
The FBI has denied the allegations, saying that it never instructed Megaupload to retain the files.
“Megaupload’s allegations are baseless, as even a cursory review of Megaupload’s pleading and the search warrant materials at issue disproves the allegation that the government misled the court as part of a conspiracy to entrap Megaupload,” they wrote in their filing. “Yet Megaupload does not cite a single communication between the government and Megaupload or a single instruction from any member of the government to Megaupload; there are none.”
Where to now?
Dotcom’s extradition trial has been scheduled to begin in March. However, Dotcom is launching his brand new Mega service. The company’s first hurdle was getting a domain name that would be out of reach from the United States – since they have seized several .com domain names in the past. His first attempt was to register the me.ga domain name. However, Gabon – who owns the .ga domain – rejected the registration after it worried it would be used to host copyright infringing files.
“Gabon cannot serve as a platform for committing acts aimed at violating copyrights, nor be used by unscrupulous people,” Gabon’s Communication Minister, Blaise Louembre, told the BBC.
Dotcom, however, said that it was another example of the US government’s “bad faith witch hunt” on Megaupload. Days later, he relaunched the site under mega.co.nz, with a placeholder on what the service will be. The new Mega service promises to be better, faster, stronger and safer; with Dotcom seeking people to help with hosting and invest into the service.
Mega is set to launch on January 20 – with the eyes of the world, especially the tech press, law enforcement and the United States Government, all watching.