Scoop Election 08: edited by Gordon Campbell

On Kim Dotcom’s bail application

January 24th, 2012

megaupload shut down by fbi, arrests, assets seized

The Crown is opposing bail for Megaupload CEO Kit Dotcom on the basis of (a) that he poses a flight risk and (b) he could recommence his operations if released. Neither seem to be very convincing arguments. By its very nature, the extradition battle is likely to be a lengthy one and if having money is held to be a decisive factor in being regarded as a flight risk, then bail would have to be denied to almost every white collar criminal who comes before the court.

Are the courts really prepared to keep Dotcom and his colleagues in custody for the entire extradition process? That would be a totally disproportionate infringement of the basic right of accused persons to liberty, until the charges against them are heard and proved. On balance, Dotcom poses neither a threat to society nor – given the presence here of his family, and his residency here – does he seem a likely flight risk.

Similarly, there seems little risk of Megaupload rising from the ashes of the FBI’s “Mega Conspiracy” any time soon. If bailed – and under supervision – Dotcom might even conceivably be able to help the authorities to untangle the entirely legal aspects of Megaupload’s operations, and help return that property to its lawful owners. These owners, as Russell Brown has pointed out, may include the likes of Kanye West, Will i am, Snoop Dogg and other less celebrated citizens whose lawful property will otherwise be frozen indefinitely in Megaupload’s cyberlocker until the charges against him and his colleagues are resolved.

As other commentators (including Salon’s Glen Greenwald) have also noted the FBI-led action against Megaupload was taken barely 24 hours after controversial two anti-piracy pieces of legislation ( the so called SOPA and PIPA bills) backed by entertainment industry lobbyists were withdrawn from the US Congress.

Critics insisted that these bills were dangerous because they empowered the U.S. Government, based on mere accusations of piracy and copyright infringement, to shut down websites without any real due process. But just as the celebrations began over the saving of Internet Freedom, something else happened: the U.S. Justice Department not only indicted the owners of one of the world’s largest websites, the file-sharing site Megaupload, but also seized and shut down that site, and also seized or froze millions of dollars of its assets — all based on the unproved accusations, set forth in an indictment, that the site deliberately aided copyright infringement.

In other words, many SOPA opponents were confused and even shocked when they learned that the very power they feared the most in that bill — the power of the U.S. Government to seize and shut down websites based solely on accusations, with no trial — is a power the U.S. Government already possesses and, obviously, is willing and able to exercise even against the world’s largest sites (they have this power thanks to the the 2008 PRO-IP Act pushed by the same industry servants in Congress behind SOPA as well as by forfeiture laws used to seize the property of accused-but-not-convicted drug dealers).

Julian Sanchez at the Cato Institute is also essential background reading on the Dotcom case and his concluding remarks are particularly interesting:

This is another reason the takedown-before-trial model is disturbing. Again, there’s strong evidence in the indictment that Megaupload’s conduct here was anything but innocent. But now imagine some other cloud storage site that comes under the crosshairs of the government or content industries. As I suggest above, they might have very good reason for only disabling specific, publicly distributed links to a copyrighted file in response to a takedown notice, rather than cutting off access to every user who has remotely stored the file, regardless of how they’re using it. At a trial, they’d get to explain that. If the site is shut down before its operators have an opportunity to even make the argument … well, that doesn’t bode well for investment in innovative cloud services.

So far, we have seen the New Zealand courts and Police acting in SWAT team-like helicopter raids that clearly show the Police have been consuming too many of the entertainment industry’s fine products, and colluding with the shutdown of this particular website. Megaupload appears to have been singled out partly for the flamboyance of its owners, which serves all the better to deter les autres such as Mediafire and yes, even Youtube itself – whose content remains an untidy mix of legally and illegally uploaded material.

When and if this case ever gets to a US court, Dotcom’s lawyers should have a fine old time arguing why their operation has been singled out for draconian action, when (apparently) the likes of Youtube are able to quietly devise revenue sharing ad content and other ruses that enable it to co-exist (albeit uneasily) with the same entertainment industry that is now baying for Dotcom’s blood. Our own courts should decline to be party to this particular lynch mob. Dotcom should be released on bail, to oppose the extradition, and ultimately if necessary, to prepare his defence against these charges.

As Glenn Greenwald says, this is what is called due process in the US. In times past, the US courts used to adhere to it. Not so much today. In a recent op ed in the Washington Post (headlined “10 Reasons The U.S. Is No Longer The Land of the Free”) law professor Jonathan Turley itemised the excesses of state power that the Bush and Obama administrations have created (and in some cases used) since 9/11.

These include: the assassination of US citizens, indefinite detention, arbitrary justice, warrantless searches, the use of secret evidence, war crimes and torture, the widespread monitoring and surveillance of ordinary citizens, the use of secret courts, immunity from judicial review and extraordinary renditions. Turley’s conclusions are worth reading:

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powell confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely.

Frankly, the New Zealand courts should not be serving as a dutiful helpmate of such a system. Dotcom should be bailed.


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    1. 8 Responses to “On Kim Dotcom’s bail application”

    2. By Mal on Jan 24, 2012 | Reply

      Extraditable offense – New Zealand Law (
      Involves conduct that would be regarded as criminal had it occurred in NEW ZEALAND, and would have carried a SIMILAR PENALTY. New Zealand judges are STRICT in ensuring that it is precisely followed. Out in 5 years for manslaughter in NZ and US government seeks maximum 20 penalty for just one part of the multiple inditement. It is laughable and extremely embarrassing that this was overlooked to even allow them to be arrested in the first place.

      Gestures of good faith with US are all good, it’s a 2 way thing for sure that brought back Nai Yin Xue from the US to NZ to face charges, but fact is, that if it was JK that arranged this with US as a “gesture of good faith”, it is likely he already knew the above (that they could never be extradited). So now FBI have a whole load of private information about innocent NZ citizens passed onto them that used the sites for legitimate purposes – not what NZ citizens want, and have shut down the operations in NZ that were not illegal at huge inconvenience to many around the world – many would call it bullying. An expensive, way out of proportion, commando style raid involving approx 60 officers and 2 helicopters. What a huge waste of NZ money regarding successful American film and music industry lobbying when NZ has high levels of poverty, youth suicide and child abuse to deal with and not enough money to pump into these areas.

      All this has done is created unnecessary animosity from New Zealand citizens towards the US simply due to the fact that NZ citizens and residents do not want US law to extend to New Zealand – not on land – and not in cyberspace. KIwis are clever enough to know that overly tough laws regarding copy-write films and music are too much of a risk to internet freedom and that if the technology/ law is put in place it can be used to the advantage of the rich corporates due to more setup costs and that the technology can be used for political advantage – something the US has openly criticized China for. The US invented the Internet TCP/IP to function in a nuclear world war, they did a good job, it’s a bit late to decide they don’t want some aspects of it to work now. Wikileals shows the US government offering NZ government approx. $1000000 on 2 occasions to set up internet filtering and to create new law surrounding the internet based on US interests. The US gave NZ plenty of recreational ideas to keep young new Zealanders happy and we gave back bungy jumping and the likes- all good. I think many New Zealanders will boycott american music and films where the rights are owned by the big guns (AMI /SONY BMG RIAA etc) for some time . Thankfully times are changing and copyright free music and films are more readily available of equal or better quality due to new revenue stream methods for the creators that do not risk internet censorship. For the first time ever against the most important NZ Law and Justice principal – and law that says guilty before innocent (3 strikes – a law somehow passed in NZ recently despite those that voted exiting parliament saying they did not really understand it). Take your copyright free NZ music and films to the US and show them how it is done, grab a beer, stop stressing, chill out, and enjoy.

    3. By DF on Jan 24, 2012 | Reply

      One word: Tor.

    4. By Joe Blow on Jan 25, 2012 | Reply

      Well that’s what happens to justice when a judge feels the media breathing down his neck… this time being famous didn’t help the defendant. They’ll likely appeal that decision anyway…

    5. By Joe Blow on Jan 26, 2012 | Reply

      EM-bail will likely be the thing to apply for next…

    6. By Elyse on Jan 29, 2012 | Reply

      How sad that our tax dollars are being used by our arse-licking govt to collude with the US govt in doing what congress couldn’t pass in the form of SOPA but have given themselves the right to do anyway: destroy the internet as we know it.
      Good one, NZ.

    7. By Leon Henderson on Feb 2, 2012 | Reply

      Elyse, Mr. “Hopey Changey” Obama and his Wall Street owners, and the John Key “government” and their grovelling mass-media never told you about ACTA, did they Elyse???

      What is ACTA?

      Incidentally Elyse, John Keys’ part-Jewish father (who was, surprise, surprise a wealthy bank-owner in Europe)did not flee from Europe as a Jew “refugee” from the rampant Nazi’s.

      Instead the part-Jew father of John Key was fleeing from Hungary to try and escape from the victorious Russian Army!!!

      The Russians did not persecute Jews so why did the part-Jew father of John Key try and escape an examination from the Russians?

      John Key and his mother were housed, clothed, and fed by the New Zealand taxpayer: they were provided with free medical treatment, subsidised food, and free education (including FREE university education, and not only that but they were PAID a lot of money via the Social Welfare System to live on while they “attended” university as well: Key was getting given by the Social Welfare System at least $130.00 per week when a two-bedroomed flat in Wellington City was fifteen dollars per week and a huge feed of fish and chips was forty cents!!! (no electricity bills either: electricity was virtually free in New Zealand, as were telecommunications due to their being State-Owned and Non-Profit) John Key, the crafty part-Jew grabbed an absolute advantage from all of this and callously used it to study “economics” and in particular currency speculation!!! When Key finally left his free university “studies” in New Zealand, the bastard immediately popped up in New York as a currency-speculator (Money-Fiddler) for Goldman Sachs!!!

      The Goldman Sachs Jews in Wall Street called Key the “Smiling Assassin” because of the way he can seem to be “matey” and “nice” while in reality he is scheming to cut your throat literally from ear-to-ear. If you hate Social Welfare Beneficiaries then why did you vote for John Key???


    8. By Leon Henderson on Feb 4, 2012 | Reply

      Heres an economics lesson for Joe Blow:

    9. By Joe Blow on Feb 5, 2012 | Reply

      @ Leon

      Good to see you studying economics Leon.

      I must say if the Argentine economic crisis was an experiement by the “global power elite” to figure out how to deal with the present economic crisis, they’re getting a lot better at it than in 2002! Jez a contraction of GDP by 40% and defaulting on $81 billion of public debt sounds pretty dire! Those foreign investors lost a lot of money Leon! Haven’t heard of anything like that happening yet… have you? At least no one is advising the PIIGS to fix their currencies to the US dollar, like the IMF did to Argentina in the 1990s. The Euro Zone is really a whole different kettle of fish as they are already fixed into the euro…

      What I thought was interesting about the article in the Economist I tried to get you to read was that it was by someone well versed in Friedman’s ideology suggesting that the troubled economies in the Euro Zone not follow austerity measures and instead modify the powers of the ECB so that it can bail them out…

      Here’s another interesting article in the Economist for you to read Leon:

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