Kim Dotcom Alleges Government Lied in Getting Seizure Warrants
Megaupload and Dotcom are also seeking to have the search warrant from June 24, 2010 against Carpathia Hosting company unsealed. (It was provided to Carpathia and Megaupload when issued by the Court, but has never been officially unsealed for the public.) It notes that Wired, in this article, has already published the search warrant. The warrant was sought in an investigation of Ninjavideo (government press release on sentencing in Ninjavideo here.)
From the NinjaVideo Indictment:
a. From at least January 4,2010 until June 30,2010, infringing copies of copyrighted materials were stored and accessed by members of the conspiracy at Carpathia Hosting in Ashburn, Virginia, which is in the Eastern District of Virginia.
As Wired explains:
The June 24, 2010 warrant to search the Megaupload servers in Virginia was part of a U.S. criminal investigation into NinjaVideo, which was piggy-backing on Megaupload’s “Megavideo” streaming service. Though the feds had already begun quietly investigating Megaupload months before, in this case the government treated Megaupload as NinjaVideo’s internet service provider, serving Megaupload with the warrant and asking them to keep it quiet.
Megaupload responded as “good corporate citizens,” said Ira Rothken, who represents founder Kim Dotcom. The company kept the warrant a secret and turned over information on the alleged NinjaVideo operators, as well as database information on the 39 pirated movies detailed in the warrant. The NinjaVideo probe led to the indictment of the five top NinjaVideo administrators, including founder Hana Beshara, on charges similar to those now faced by Dotcom and other Megaupload operators.
Three weeks after the MegaUpload Indictment, I wrote a long post on the curious cooperating relationship between the Government and Carpathia. It seems now that not only was Carpathia cooperating, but at the Government's behest, it got Megaupload to cooperate in an investigation of Ninjavideo, and then, after Megaupload gave the Government what it wanted, the Government turned around and obtained warrants to seize Megaupload's assets and domains, never telling the court in its affidavits for the warrants that Megaupload had been following Government instructions in maintaining the infringing files.
It's a classic Franks v. Delaware issue. (438 U.S. 154) Ordinarily, the validity of warrant affidavits is determined by what is stated within its four corners. But, if there are material, recklessly made misrepresentations, the court strikes them from the affidavit. If material facts are recklessly omitted, the Court adds them to the affidavit. It then decides whether the reconstructed affidavit satisfies the probable cause requirement.
One tangential note: Another interesting facet of the Ninjavideo case is that one of the defendants suffers from Asperger's. His sentencing pleadings contain expert reports on the relationship between Asperger's and his criminal conduct, as well as family letters about the symptoms the defendant exhibited as a young child, that went untreated. The case is 11-cr-00447 in the Eastern District of Virginia. Every case of Asperger's is different, but the pleadings offer some valuable insight. As I said, this is just a tangential note, so please keep your comments here to the MegaUpload and Kim Dotcom case.
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