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Dotcom search warrants declared illegal (nbr.co.nz)
288 points by timClicks 1994 days ago | hide | past | web | favorite | 68 comments

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.

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.

> 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.

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.

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.

"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."

Seriously, what are you suggesting? That the US assassinates prominent citizens of allied nations inside allied nations for no other reason but to support the business interests of large multinational corporations?

Are we really seen to be such a mafia state as this, now? Honestly, when has this ever happened?

We've funded coups https://en.wikipedia.org/wiki/Banana_republic#Honduras and instigated armies against their own people https://en.wikipedia.org/wiki/Banana_massacre in order to support business interests.

Right, but when have those commercially-motivated activities extended into the Commonwealth countries or the EU?

I'm sure these people we "instigated" had no personal motivations in matter at all.

You really think they'd turn their guns on their own citizens just to break up a union dispute with an American corporation?

You have been seen as a "mafia state" like that for at least a century -- American multinationals (with government support) have left behind a wide swath of destruction in the South and Central America. The only thing that's new is American influence and control extending that far outside the new world.

"The only thing that's new is American influence and control extending that far outside the new world."

Well, I think that's my point. US Foreign policy has always distinguished between its allies and its pseudo-colonies/sphere of influence.

Back in the 50s, not only did the USA fund coups to aid corporate interests, some of the insiders profited from it: http://www.slate.com/articles/business/the_dismal_science/20...

So much for a Golden Age of patriotic, selfless, public servants in the "alphabet soup" of federal agencies.

Since 1950s

* citation needed

I was specifically referring to this: assassinates prominent citizens of allied nations inside allied nations

There's many criticisms that can be found for nearly all superpower nations, but I'm not aware of the US having a history of "assassinating citizens". Unless collateral damage is now the same as an "assassination."

adventureful, I agree with your point of view on approved by government killing of civilians for business gains. BUT it usually happens in the cases where you cross the multi-billion dollar schemes that they run, such as drug trafficking (FBI), children kidnapping (Haliburton) and of course so called War on Terror where in some places like US we spent trillions of dollars to fight against Al-Quada, in some others like Lybia we spent trillions of dollars to fight together with Al-Quada. But again, those are trillion dollars per year pure income streams that feed multiple government agencies, both white and blac-type ops. I think someone like Mr. Dotcom and his $115MM stolen is much too little for someone in government to pull the trigger.

And that's why he isn't dead. It wasn't that big of a deal for them, they threw together a hasty plan to wreck Megaupload, and wreck it they did.

I doubt they counted on much blow back or much of a fight afterward either, which was part of their miscalculation.

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.

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...

And we caught and shamed them all. It's a small country and we have a strong sense of fairness. This has backfired on the MPAA and other corporate-owner-rights advocates.

Yes we caught them, and then got paid off to let them go. They served 2 years for bombing and killing an unarmed man.

So the punishment for murder is...public shaming?

This ham-fisted affair bought shame to the police, politicians and judiciary, and, now squarely in the public eye, they are endeavouring to do the right thing.

There were, I would argue, a few bad calls by a few people who should have followed the normal processes, but they likely made them under pressure from within and from the USA, who in turn were pressured by the MPAA. There was not, I surmise, a lot of decision making happening that was informed by the likes Hacker News readers.

That is getting fixed. We have some very smart judges, who are getting across all of this - Judge Harvey springs to mind as someone who got his head around a lot of the online issues. The politicians read the newspapers - and are on twitter, and they are watching the wind and get it too. The Police do not like to be seen to over react and conduct swat raids at the behest of a foreign entity (the MPAA) - I can't see that happening again.

Meanwhile @kimdotcom is fantastic on twitter - open, disarmingly candid and sympathetic.

As far as I know, the whole South Pacific does not belong only to NZ. (i.e. the nuclear tests have been conducted on French soil)

Note that I'm not against your point per se, just a small precision.


France should conduct a nuclear test at their embassy in Washington, seeings it's French soil and all.

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

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

it was not accidental

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.

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.

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?

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

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)

nuclear weapons ⊆ WMDs; "nuclear weapons = WMDs" doesn't follow. (I was being sarcastic with the above comment; I don't actually expect MAFIAA to push for an US invasion into NZ - it's just the next logical upgrade from current situation)

Actually, if I understand the wikipedia link, the nuclear free zone allows nuclear weapons.

> prohibiting any New Zealand citizen or resident "to manufacture, acquire, possess, or have any control over any nuclear explosive device."

That seems designed to allow NATO enclaves.

NATO is the North Atlantic Treaty Organisation; New Zealand is in the South Pacific.

We haven't allowed any naval vessel carrying nuclear material (be it for weapons or power supply) to enter our waters since 1984. It's always been quite a point of contention with the US. It also happens to be a point of pride for the grand majority of Kiwis.

New-Zealand would have to be in the Atlantic Ocean for that ...

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

+1 Nice find. Pity theres only 2 minutes of it...

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

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?

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.

How convenient.

What's convenient ? ? The inability to imprison inanimate entities ? Isn't that... you know... logic.

Maybe you're speaking of the fact that most democratic judicial system have a tendency not to send everyone to prison ? I understand that this seems strange in US... but in most places, prison is really the last resort. And I'm happy that people are not sent to jail jail for mistrials. Or for abuse of the judicial system. If I had a risk of imprisonment... I'll probably not even risk any judicial process... too risky.

I think your being quite silly in there.

I think the point is, there's a line of thinking that when anyone, a person or an entity, uses force against someone in a way determined to be illegal (not just making some mistake on paperwork), some person should be put in prison over it. Whether it's the leader of the illegal operation, or the bureaucrat who authorized it.

A few bureaucrats and agents would end up in prison due to mistakes, but private citizens already end up in prison due to law enforcement mistakes. If government employees don't like taking that risk, they shouldn't be government employees. Better a few government employees behind bars "unfairly" than more than a few citizens behind bars "unfairly".

I'm sorry, but you have a terrible conception of Justice.

We should never think that prison "should" be the solution for anything. That's the reason there is 4.5 times more persons in prison per capita in US than in NZ [1].

In continental Europe we tend to consider that prison is there as a punishment for really severe things (killings, sexual abuse, severe drug trafficking etc.) OR a way to avoid reiteration. If there is no risk of reiteration and the damage was light, then fines and other non-socially disruptive punishments are better suited.

And your conception that : private citizens always end up in prison so should government representatives, is wrong. If private citizens always end up in prison, then that's a problem that should be solved... not ampliated by putting more people behind the bars. Your vision almost sounds to me like a bitter revenge : "Hiii, we pooooor citizens always go to jail, they should taste their own medicine". No, the least prison, the better.

The best example of this is your terrible transformation of an important Judicial principle. You wrote : « Better a few government employees behind bars "unfairly" than more than a few citizens behind bars "unfairly". »

Dude. Read yourself. There is no way, people behind the bars unfairly is better than anything. It's the wrost thing. Remember the Blackstone Principle : "better that ten guilty persons escape than that one innocent suffer".

And finally, do not forget that police is by essence making mistakes, it's impossible not to do, because they do something called investigation. If they were only to act in full certainty, then they would almost never act. They gather data and facts about a possible crime, and they have to use force to do that, and then they send all of this to a judge who will decide if there is enough to effectively find someone guilty or not. What you are asking for, is that police only act when they're so certain of the guilt that there is almost no need anymore for a trial. The judicial system cannot work like that. You must allow police force to make mistakes... or we're going to end up with police acting like Judge Dredd.

Which by the way does not mean there is not going to be any punishment, and if they do some really grave trespassing, then they might even end up in prison. It's a question of scale.

[1] http://www.nationmaster.com/graph/cri_pri_per_cap-crime-pris...

> We should never think that prison "should" be the solution for anything. That's the reason there is 4.5 times more persons in prison per capita in US than in NZ

It's because in the US, prisons are a business venture.


"Corrections Corporation of America, the nation's largest operator of for-profit prisons, has sent letters recently to 48 states offering to buy up their prisons as a remedy for "challenging corrections budgets." In exchange, the company is asking for a 20-year management contract, plus _an assurance that the prison would remain at least 90 percent full_"

It's convenient that there is nobody to punish because then there is no disincentive to acting in an illegal manner.

Abuses of the judicial system are precisely what I have in mind when discussing this topic: when the response to such an abuse is -- at best -- a fine paid by the public, why should such abuses stop?

Sorry for Godwinning this thread, but “I didn't do it, I was acting in the name of an inanimate entity!” is up there with “I was just following orders!”

Non-monetary punishments would be warranted for abuses of police power, because they threaten the social contract, which brings them within the purview of criminal law (not to say there isn't a civil case as well).

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

Anyone have a quick summary of this?

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.

(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.)

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.

pg did make it transparent in this instance. I think “make a note when you edit” is a good guideline, I've seen it in other communities.

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."

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.

> "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.

More like a police force looking to impress the FBI bent over backwards. What a bunch of provincial clowns. I'm sad to be a New Zealander when stuff like this happens (see the police raids on so called 'terrorists' and the recent court shambles for more of the same).

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

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.

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.

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.

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)>

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