NZ Court to U.S: Start Copying MegaUpload Data, You Can Afford It

Kim Dotcom scores another win in New Zealand, and it's an expensive one for the U.S. The U.S. has been fighting a New Zealand court's order to provide discovery in the extradition case, including the information stored on Megaupload servers in the U.S.

The back story: Kim Dotcom (and his codefendants) requested the disclosure of documents and materials relating to the issue of whether the U.S. has a prima facie case against them allowing for their extradition to the U.S. to face charges pending in the Eastern District of Virginia. On May 29, New Zealand District Court Judge Harvey granted several of the discovery requests and gave the U.S. 21 days to turn over the material.[More...]

Today the New Zealand High Court ruled on the application of the U.S. for review of Judge Harvey's order. The ruling is here. The U.S. argued the disclosure order exceeded the District Court’s jurisdiction under the Extradition Act and US-New Zealand Treaty; that the U.S. would be prejudiced because it will have to give greater disclosure at an earlier time than U.S. law requires; that it would take 2.5 months to copy the data, which would be beyond the August 6 extradition hearing date; and that it would cost the U.S. too much money.

I read today's order as a win for Kim Dotcom, because the Court accepted a proposal from Kim Dotcom's lawyers and told the U.S. to start copying the data now, even though further court review of the disclosure order could result in it being overturned. Also, the High Court's ruling includes some telling statements about how the Court views the actions of the U.S. to date, and they mostly favor Kim Dotcom.

Assistant U.S. Attorney Jay Prabhu, who is prosecuting Kim Dotcom et al in the Eastern District of Virginia, filed an affidavit in support of the application by the U.S. for judicial review of Judge Harvey's order. Today's order recounts what was in it:

Mr Jay Prabhu, an Assistant United States Attorney with the Eastern District of Virginia, has sworn an affidavit in which he says that the obligation on the prosecution to give discovery is triggered when a defendant first makes his appearance before a Court in the United States. The government has an obligation to provide the defendant with access to any items that were obtained from or belong to the defendant, if the items are in the government’s possession, custody or control. Those items are subject to inspection, copying or imaging. Any costs of copying or imaging are borne by the defendant, but impecunious defendants may request funding from the trial Court for that purpose.

The government also has an obligation to provide the defendants with access to any items that it intends to use in its case in chief at trial or that are material to preparing the defence, if the item is in the government’s possession, custody or control. Again those items are subject to inspection, copying or imaging and any costs of imaging or copying are borne by the defendant. Again an impecunious defendant may request funding from the trial Court. Defendants have reciprocal discovery obligations.

He says that the United States is opposed to providing defendants with discovery or disclosure while they are awaiting extradition because they have not surrendered to the jurisdiction of the United States Court, which is the initial step upon which discovery law in the United States is premised. Moreover, government attorneys do not provide discovery before an attorney enters their appearance in the United States because of the ethical obligations government attorneys have to protect the confidentialities of their client.....

As to the strength of the case, the applicants [U.S.] say that there is clearly a serious issue to be tried in these proceedings because no New Zealand Court has previously ordered disclosure in extradition proceedings to such an extent or on such grounds. Ordering disclosure on such terms is inconsistent with New Zealand’s obligations under the Treaty, and unless corrected, will place New Zealand well outside the disclosure regimes that operate in comparable jurisdictions.

[The U.S.] says if the effect of the order is not suspended, it will in any case be quickly in default. This is because the 21 day period for compliance is too brief. The material captured by the order includes intercepted emails that exceed 10 million in number. There are in addition it says, voluminous financial records obtained from a number of different countries. The investigation has included analysis of computer servers rented in United States by the respondents’ business, the contents of which are very large.

....Special Agent Michael Postin of the Federal Bureau of Investigation stated [in an Affidavit] that the New Zealand items alone are estimated to contain more than 150 terabytes of data, and it has previously taken 10 days of full time work to image certain items representing 29 terabytes. The process of providing forensic images of the New Zealand items not already copied will take a minimum of two and a half months. The disclosure order also does not resolve the issue of encryption. The United States is not able to provide readable copies of the items it has imaged while much of the content remains encrypted.

Kim Dotcom's lawyers contend:

[T]hey will be prejudiced by any stay as it will inevitably result in an adjournment of the hearing on 6 August 2012. Mr Akel for Mr Dotcom suggests a compromise position. The applicant should commence copying documents and hard drives preparatory to providing disclosure. But should the application for review be successful that disclosure need not be delivered to the first respondents in compliance with Judge Harvey’s existing orders.

The U.S. maintained Kim DotCom would not be prejudiced by a stay of the disclosure order. The High Court today disagreed and sided with Kim DotCom on this issue:

It is now more than seven months since the first respondents were arrested. During that time they have been in prison for a period and until relatively recently have been subject to restrictive bail conditions. Two of the first respondents are effectively being detained in a foreign country away from their families and ordinary places of residence. [Kim DotCom et al] made plain that they wish to keep the 6 August date for the extradition hearing. If a complete stay were issued, that date would inevitably be lost. Whilst it is certainly possible that, given the issues that remain outstanding between the parties, the 6 August 2012 date will be jeopardised, the [U.S.] as the prosecuting party, must accept an obligation to do all that it can to maintain that date. (my emphasis.)

The Court today also rejected the U.S. argument that the U.S. would be prejudiced by having to provide the requested material:

As to the issue of prejudice caused to the applicant if it is compelled to give disclosure at this time, there is merit in the point made by the first respondents [Kim Dot Com, et al] that the applicant must already have assembled what it considered relevant material before it sought the approval of two grand juries for the laying of the indictment and the amended indictment. There may be additional expense involved for the applicant in compiling the particular disclosure ordered, and that is a factor to be weighed. However, in assessing the weight to be attached to this prejudice I consider relevant that the applicant has ample means, and that the expense involved in copying must be dwarfed by the other costs of an investigative and prosecutorial operation of this size . (my emphasis)

As to to the issue of the potential effect of judicial review over the U.S. disclosure obligations:

I accept there is a serious issue to be tried as to the extent of any disclosure obligations on the United States. In the absence of full argument it is not possible to conclude that the grounds for review are overwhelming, as the [U.S.] would have it. (my emphasis.)

The Court basically tells the U.S. to stop whining and get moving:

As to (d), the time that will be taken to provide the disclosure, the longer the United States delays in commencing copying for disclosure, the longer it will take. The compromise position advocated for by Mr Akel meets the concerns that the 21 day timeframe cannot be complied with.

The Court also rejected the U.S. argument about encryption:

I am told by [Kim Dotcom, et al] that they seek a clone of the encrypted hard drive, and that the absence of passwords provides no barrier to this. The evidence I have seen from the applicants does not contradict this assertion.

The Court says it accepts Kim Dotcom's compromise proposal and orders that while the U.S. can wait to actually turn over the documents until the court has ruled on the validity of the disclosure order, it has to begin copying now: Harvey's disclosure order, the U.S. to begin copying now:/p>

This order is made on condition that, if the applicant has not already done so, it must immediately commence preparation of the disclosure that has been ordered.

The High Court ordered a two day hearing be set as soon as possible for the judicical review hearing.

So the U.S. is told it has to start the expensive cloning/copying process now, even though if it prevails in overturning the disclosure order, it won't have to turn the material over.

Will this affect the stalemate in the Court in the U.S. over whose expense it is to obtain the material from the MegaUpload servers hosted by Carpathia? Or whether the funds seized from Kim Dotcom and Megaupload can be used for that purpose?

The prosecution of MegaUpload and Kim Dotcom, et. al. just got a whole lot more expensive for the U.S. -- and its taxpayers.

< Wikileaks' Julian Assange Loses Final Extradition Appeal | Round 2 George Zimmerman Discovery >
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  • Display: Sort:
    my "spidey sense" is tingling, and i (5.00 / 1) (#1)
    by cpinva on Fri Jun 15, 2012 at 12:45:07 AM EST
    feel another "john edwards'" case coming along. which makes me wonder just exactly who AG Holder is really working for, all the citizens of the US, or a particular group of big donors, who just happen to make their money running companies involved in the type of activity megaupload allegedly harmed? i get the impression the DOJ just expected megaupload, and the countries it resides in, to just roll over and play dead for the US. the DOJ seems to be getting caught with its cyber pants down, again.

    Domain expert here (5.00 / 1) (#12)
    by Lina Inverse on Fri Jun 15, 2012 at 10:35:09 AM EST
    Although not quite on this scale, and not in the area of computer forensics, e.g. whatever's required to maintain the chain of custody and all that.

    This is neither an extremely time consuming process or terribly expensive, even for 150 TB of data.

    Proposed process: use whatever forensic software you want (dd on UNIX(TM)/Linux works for me (I think that was what unitron started to say) plus SHA1 or later to confirm the contents were transmitted correctly bit for bit) to image and checksum the disks.  Copy to a fast staging disk system with one or more LTO-4 or -5 tape drives on it (or better, a tape library so you don't need a "tape monkey" to constantly exchange tapes).

    Total cost for Fujifilm LTO-5 media (1.5 TB uncompressed per tape), Newegg.com single unit pricing, is about 6,000 US$ for one set.  You wouldn't necessarily spend more than 2-3 times that for the hardware, the labor costs would be the big expense, and there's also air freight to NZ but these tapes aren't very heavy.

    Time to do this is going to depend on how fast you can get the data off the original disks (everything downstream has to be faster to keep up with the very fast LTO-5 drives).  A reasonable worst case I just generated on my 2007 vintage system is 80 MiB/second from one disk, or around 23 days if they were doing it one source disk at a time, which they wouldn't unless they were being deliberately dilatory.

    I judge that if they could procure or rather lease the hardware quickly enough they'd have no trouble meeting the deadline.

    Exactly. Lying or obdurate ignorance. (none / 0) (#14)
    by Gandydancer on Fri Jun 15, 2012 at 11:10:49 AM EST
    The result could be pretty useless, of course, depending on how much money the Megaupload defendants have left to reproduce the disks from tape. If screwing them over isn't a consideration, easier to give them read-only remote access.

    One byte at a time, just like elephant eating... (none / 0) (#20)
    by unitron on Fri Jun 15, 2012 at 11:42:13 PM EST
    Personal preference is dd_rescue, but that line about having to type "d" and then having to do it again should have negated the need for the sarcasm tag. : - )

    Unless the reader has no experience with "Xerox-ing" drives, in which case the joke falls flat.


    What's so expensive... (none / 0) (#2)
    by Gandydancer on Fri Jun 15, 2012 at 12:47:40 AM EST
    ...about cloning a hard drive?

    well, there's that superpricey CD-R blank... (none / 0) (#3)
    by unitron on Fri Jun 15, 2012 at 05:41:04 AM EST
    ...and you have to go to all the trouble of loading a live Linux image on it, and then you have to type


    and then you have to type it again!

    Oh, the humanity!


    Wouldn't the cost come (none / 0) (#5)
    by Slayersrezo on Fri Jun 15, 2012 at 08:26:47 AM EST
    from the size of the harddrives required, as well as any special data prototcols necessary to verify the data?

    As the NZ court observed... (none / 0) (#6)
    by Gandydancer on Fri Jun 15, 2012 at 08:54:58 AM EST
    ...Terabytes are a lot cheaper than lawyers.

    Terabytes? (5.00 / 1) (#7)
    by Slayersrezo on Fri Jun 15, 2012 at 09:15:52 AM EST
    It's much more than that.

    I don't disagree with the ruling because I don't think the US should be prosecuting this case in the first place and I'm hardly about to "cry a river" for the US government's alleged lack of financial resources, but this isn't something that's very easy to do. Those were very large servers and you don't just buy that much data storage ability at Best Buy.


    NSA or CIA surely has... (none / 0) (#9)
    by kdog on Fri Jun 15, 2012 at 09:20:55 AM EST
    massive computer capabilities at the ready, no?And no budget limitations! ;)

    Of course I too don't want anything more than this case being dropped and an apology given to Mr. Dotcom for all the trouble we and NZ have caused him with this railroading.


    Not Best Buy, but a 150TB... (none / 0) (#16)
    by Gandydancer on Fri Jun 15, 2012 at 11:14:40 AM EST
    ...in turnkey server farm space is just a phone call away.

    Wait a minute, I take it all back... (none / 0) (#4)
    by unitron on Fri Jun 15, 2012 at 05:43:10 AM EST
    "What's so expensive...
    ...about cloning a hard drive?

    You have to have another equally large or larger hard drive.

    Have you seen what's happened to hard drive prices since last fall's floods in Thailand?


    yes, they've gotten even cheaper. (none / 0) (#8)
    by cpinva on Fri Jun 15, 2012 at 09:19:37 AM EST
    Have you seen what's happened to hard drive prices since last fall's floods in Thailand?

    HD's are practically fungible commodities, which can be slapped together almost anywhere, with the right parts. just put your company's logo on them. data verification is a standard part of any duplication program, window's has it on their OS. granted, depending on the volume of data we're talking about, it could be time consuming, but i'm hard pressed to believe it would take months.


    Unitron is right about the floods impacting (none / 0) (#11)
    by DFLer on Fri Jun 15, 2012 at 10:11:23 AM EST
    the price of hard drives....they doubled in price for a few months...finally have come back down.

    Why mess with expensive and fragile disk drives? (none / 0) (#13)
    by Lina Inverse on Fri Jun 15, 2012 at 10:38:36 AM EST
    See below for my back of the envelope estimate for using LTO-5 tapes.

    The Thai floods have indeed been a big pain, but they don't have to seriously impact this discovery request, and sending disks is not the best solution.


    Jeralyn must have liked your post. (none / 0) (#19)
    by Gandydancer on Fri Jun 15, 2012 at 01:06:31 PM EST
    I did too. And she moved it up to near the top.

    I know, just buy a couple of thumb drives... (none / 0) (#10)
    by magster on Fri Jun 15, 2012 at 09:24:15 AM EST
    Seriously, these DOJ prosecutions at the behest of the political and moneyed interests, and in this case at the behest of cable companies, RIAA and media conglomerates is gross. Holder and Geithner need to be jettisoned the day after the election if Obama is lucky enough to win re-election.

    The "Hard Drive" I Believe (none / 0) (#15)
    by ScottW714 on Fri Jun 15, 2012 at 11:11:35 AM EST
    ...would be the equavalent to the space they leased at Carpathia.

    1000 Gigabytes = 1 Terabyte
    1000 Terabytes = 1 Petabyte
    1000 Petabytes = 1 Exabyte
    1000 Exabytes  = 1 Zettabyte
    1000 Zettabyte = 1 Zottabyte
    1000 Zottabyte = 1 Brontobyte
    Brontobyte is 1,000,000,000,000,000,000,000,000,000 bytes.

    Not sure where that falls, but well past a terabyte.


    Follow the link. (none / 0) (#17)
    by Gandydancer on Fri Jun 15, 2012 at 11:21:26 AM EST
    The seized NZ computers totalled 150TB. No problemo.

    I Saw That... (none / 0) (#18)
    by ScottW714 on Fri Jun 15, 2012 at 11:44:29 AM EST
    ...but how can they be complaining/fighting over the expense and time.  That's a hour project tops and maybe 2 bills.  

    I though they misspoke.

    The prosecution of MegaUpload and Kim Dot Com, et. al. just got a whole lot more expensive for the U.S. -- and its taxpayers.
    Will this affect the stalemate in the Court in the U.S. over whose expense it is to obtain the material from the MegaUpload servers hosted by Carpathia?

    Surely they aren't in a stalemate over the cost of 150TB.

    Something doesn't jive with the time either:

    ...greater disclosure at an earlier time than U.S. law requires; that it would take 2.5 months to copy the data...

    The could send it using dial-up.


    ok, is there someone whose job (none / 0) (#21)
    by cpinva on Sat Jun 16, 2012 at 05:29:54 AM EST
    is to come up with new, geeky names for these things? or did you just make those all up, after terabyte? :)

    (1) Yup. (2) Nope. (none / 0) (#22)
    by Gandydancer on Sat Jun 16, 2012 at 07:05:34 AM EST