Dotcom search warrants declared illegal

http://www.nbr.co.nz/article/dotcom-search-warrants-declared-illegal-ca-122374

by timClicks • 14 years ago

288 68 14 years ago

nbr.co.nz

timdorr• 14 years ago

Anyone have a quick summary of this?

polemic• 14 years ago

See http://www.nbr.co.nz/article/dotcom-search-warrants-declared... or http://www.scoop.co.nz/stories/HL1206/S00201/court-dotcom-wa... or an image of the judgement http://img.scoop.co.nz/media/pdfs/1206/CIV201240419282806201...

To quote @yakmoose: I am glad our (New Zealand's) judiciary still functions. even if our police don't.

timClicks2• 14 years ago

Quoting from the NBR (http://www.nbr.co.nz/article/dotcom-search-warrants-declared...):

"The main points from Justice Winkelmann's judgment:

- The search warrants used under the Mutual Assistance in Criminal Matters Act were unlawful. - The FBI's removal of "clones", or copies, of computer data offshore was unlawful. - Any clones remaining in New Zealand must stay here. - The attorney-general must provide Mr Dotcom with any clones currently held by New Zealand police."

DigitalSea• 14 years ago

Not a quick summary but...

This line from the ruling PDF basically explains why the searches were declared illegal:

"The warrants did not adequately describe the offences to which they related. Indeed they fell well short of that. They were general warrants, and ash such, are invalid."

The judge then goes on to say:

"Before I leave this topic, there is one further peculiarity about the form in which the warrants were sought and issued which I record: the applications did not extend to racketeering, or to conspiracy to commit copyright infringement. It included money laundering rather than conspiracy to commit money laundering.

Attached to the warrant was this document that stipulated what could be searched and seized by the authorities. It listed this particular part:

"All records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including but not limited to, Megaupload, Megavideo and Megastuff Limited"

The judge says about this (in reference to Dotcom's lawyer I believe):

"I accept his submission that without definition of the 'Mega Conspiracy' it is hard to imagine what falls within this category"

Another juicy bunch of tidbits are these:

"Assuming then that the police were operating under a valid warrant, what were the police entitled to do in this case? There were required to conduct a preliminary sorting exercise at the premises, as the warrants could not authorise an officer to removed from the premises indiscriminately all documents and records. In this case the police faced the additional difficulty that they were not the investigating officers and had limited knowledge of the operation."

"Given the state of knowledge of the police, it would have been proper approach for them to involve officers from the FBI in this exercise. Section 46(1) authorises the use by police of "such assistants as may be reasonable in the circumstances for the purpose of the entry and search. Because assistants would have been foreign law enforcement officials it maybe have been prudent to have them as named assistants in the warrants authorising the search."

"Providing the police act reasonable in so doing, following the initial sorting exercise, they were then entitled to remove from the premises those things which at the time they reasonable believed contained material which might be of evidential value."

Short story is: the warrants were too broad, didn't accurately describe what the items were being seized for in relating to the offences and thus the warrants were unlawful not to mention the police technically weren't allowed to seize what they did from the properties in the warrants.

shrikant• 14 years ago

> "All records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including but not limited to, Megaupload, Megavideo and Megastuff Limited"

That bit reads like someone wrote up a search warrant after watching a few episodes of CSI: Miami.

pg• 14 years ago

(In case anyone is confused by this thread, the original link was to a pdf of the judgment on some highly overloaded government server in NZ.)

mixmax• 14 years ago

This has been mentioned before, but could you please not change links and edit titles unless there's a reason for it. Or at least make it transparent to the users that something has been changed.

It's enormously irritating.

sown• 14 years ago

I'm not declaring this a conspiracy. It could have been as easily as some prosecutor somewhere letting zeal exceed judgement. But...

I somehow get the impression that what ever forces perpetrated this don't really care it wasn't legal, so long as MU got ruined for some reason, any reason. Even if it was by accident.

mxxx• 14 years ago

Yeah, from what I've read the FBI took copies of everything they need and will essentially just flip the bird to NZ authorities. Go team USA.

caf• 14 years ago

NZ authorities are used to being flipped the bird by erstwhile allies. Mossad agents using forged NZ passports, French agents assassinating Greenpeace activists in NZ, French nuclear testing in the south Pacific...

rsanchez1• 14 years ago

This administration seems to like flipping the bird to judges' rulings, and not just in NZ.

earl• 14 years ago

it was not accidental

joering22• 14 years ago

I'm not sure. Such a ruling like this one would give Mr. Dotcom "do not touch this guy" status (if he wins, expect him coming back from ashes and starting this or another online business, whether on the edge of legality, or not, still making big bucks), that means next time a prosecutor will try to go after him whether due to RIAA/political pressures or not, they will be highly discouraged by the outcome of this case.

Such a ruling would also encourage others to do things on the edge of the law because others got away with it. So no, by any means they wanted to put Mr. Dotcom behind bars and keep him there while thousands of his hard drives rot and fall apart.

adventureful2• 14 years ago

I wouldn't assume the authorities in question had any of this well mapped out (their preparation indicates they didn't), nor that they're all that interested in this case (it's not that high on the todo list). If this were strictly a matter of stopping Dotcom, and it were that critically important, they'd simply kill him if they couldn't beat him in court (heart attack, he is after all morbidly obese). We kill foreigners 24/7 around the globe for all sorts of reasons (war on drugs, war on terrorism, who knows what else), they could just internally label him an intellectual property terrorist, Obama signs off on an assassination order, and goodnight.

I believe destroying MU was thrown together mostly haphazardly out of desperation. This is an annoying sideshow for an organization like the FBI. They're doing the bidding of a higher up master, that is doing the bidding of the money in Hollywood.

stfu• 14 years ago

I personally think this is a very good thing and anyone pushing the status quo and conventional thinking a step further is in my view a worthy cause. Sure, there are going to be backslashes, but I honestly believe that society is moving forward not by rules, but by those who dare to break them.

anamax• 14 years ago

> Such a ruling like this one would give Mr. Dotcom "do not touch this guy"

Like John Gotti?

Beating a rap doesn't necessarily discourage police/prosecutors. It often motivates them.

hef19898• 14 years ago

Yeah, the whole story has a certain ... smell to it. Hard to put the finger on it so.

accountswu• 14 years ago

When I first read the title I thought that search engines that all .com domain searches have been declared illegal and now the Kiwis cannot search on .com domains (I know that sounds weird, more like meaningless :)).

Edit: Now the title has been updated, previously it was: <Dotcom searches declared illegal (judgment full text)>

res0nat0r• 14 years ago

This appears to be related to the raid on his house, is the seizure of all of the servers in VA still valid? That is where I'm sure the majority of the evidence related to the case lies and if that is still valid I would think there is still a major case to be had.

Piskvorrr2• 14 years ago

I guess that since the farcical attempt at pressuring NZ into submission failed, a full-scale war on NZ is now MAFIAA's only option. This shouldn't be very hard to arrange - NZ surely must have WMDs, no?

Negitivefrags2• 14 years ago

New Zealand is probably one of the most unlikely nations to harbour WMDs (http://en.wikipedia.org/wiki/New_Zealand%27s_nuclear-free_zo...)

Xylakant• 14 years ago

Please don't confuse me with facts, I already have an opinion!

(I assume the OP refers to the Iraq war which was justified with WMD that never were found)

lostlogin3• 14 years ago

I'm guessing you aren't familiar with the current government. It's sad how weak the defense of New Zealand's position is now. Anything to grease the wheels of big money.

From this, the audio is worth listening to. http://www.nzhistory.net.nz/media/sound/oxford-union-debate

locusm4• 14 years ago

Yes, that really didn't go down well with the yanks. There is an interesting WL cable on this topic.

lostlogin3• 14 years ago

I took it to mean that by and large there is no support for nuclear weapons by New Zealanders.

locusm4• 14 years ago

I was 15 at the time and I recall my family being anti nuke but not anti american. We banned any nuclear powered ships from entering the harbour from memory.

revelation• 14 years ago

Its actually not too rare for these to be declared illegal. The problem is that most judiciary offer no protection in this case. Fruit of the forbidden tree is not a world wide principle.

beehave• 14 years ago

What's somewhat amusing about this, perhaps, is that NZ up until recently did not even have a "Bill of Rights". And the inspiration for it came from guess where? Many years ago, one of NZ's former Ministers of Justice spent some years in the US (U. of Iowa? I have forgotten) and when he returned to the Antipodes he brought the idea home with him. Though there is no "constitution", and Parliament is still supreme, NZ does have a Bill of Rights. And though it's rather unusual in a Parliamentary system and arguably "toothless", it was mentioned in this opinion!

Now, looking at this series of events: the use of the NZ equivalent of a "SWAT team" in order to take an allleged copyright infringer (with no history of violent crime) into custody (how much did that show of force cost the NZ taxpayer?), and the way they handled the evidence, it's the US that seems to be lacking procedural safeguards. Or maybe they are just ignoring them.

NZ is now put in the strange position of reviewing the actions of the country which is supposed to be the "world leader" in concepts like freedom from unlawful seizures of property; heck, they inspired NZ to adopt a Bill of Rights!

Wozniak was recently in NZ and visited Dotcom.

At least one prominent NZ musician has stated he's behind Dotcom's cause.

Whether or not it was intentional it seems the way this case was handled by whomever was making the decisions is backfiring on them on the public relations front.

timClicks2• 14 years ago

No, we don't have a Bill of Rights. We have no supreme law. Nor should we. That just drags large, societal disputes into the courts rather than the democratically elected Parliament. That means that the highest courts become political battlefields. See also political appointments to the USA's Supreme Court.

The Bill of Rights Act and the Human Rights Act are ordinary law. If a future Parliament wanted to breach the rights provided in those statutes, they need to face the political force of doing so.

mtgx• 14 years ago

So who goes to jail over this? I mean, it's "illegal" isn't it? So that implies someone must get some jail time for it?

dangrossman• 14 years ago

No, that's not implied at all. The remedy for most "illegal" things is repayment of damages suffered, or a statutory fine. Nor can you imprison an inanimate entity, like the government that carried out the illegal warrant.

morsch2• 14 years ago

How convenient.

vacri• 14 years ago

Parking tickets are issued due to illegal activity, but they rarely end in jail time.

Dotcom search warrants declared illegal

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