Kim Dotcom Alleges Government Lied in Getting Seizure Warrants

Kim Dotcom claims a double-cross. More here. The brief his legal team filed yesterday in the Eastern District of Virginia is here.

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.)

Another good article explaining all this is here. Dotcom lawyer Ira Rothken explains the relevance here. [More...]

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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  • Display: Sort:
    the case against mr. dotcom, and his company, (5.00 / 1) (#1)
    by cpinva on Thu Jan 03, 2013 at 09:01:20 PM EST
    megaupload, seems to be falling apart at the seams, on both sides of the equator. i could be wrong, and this is purely speculation, but i suspect neither gov't entities expected to encounter nearly the pushback they're getting, and were in no way prepared for it.

    they figured mr. dotcom, and his company would, like so many others, just go for some kind of plea deal, which would smooth out all the corner-cutting that appears to have been done by the respective gov't agencies involved. plea bargains absolve all official sins. they would also get to keep all the goodies they seized, regardless of the validity of the seizures, very cost effective.

    as it is, those corners are sticking out, causing bruises in both hemispheres. the plea bargain eventually worked out may well be, "we'll give all your stuff back, drop all charges and apologize, just please don't sue our pants off!"

    It was fishy from the beginning (none / 0) (#2)
    by sj on Fri Jan 04, 2013 at 01:47:09 AM EST
    and as time goes by those fish are stinking more and more.  I think cpinva is right and that the FBI (along with the DHS and CIA and para-military police departments) have gotten arrogant.  But who actually has the stuff that was seized, anyway?

    Lotta stuff the DOJ does (none / 0) (#3)
    by fishcamp on Fri Jan 04, 2013 at 07:54:35 AM EST
    smells fishy to me and I smell lots of fish.  I hope Kim sues their fishy a**es and gets his stuff back.