Friday, 29 June 2012 13:42

Why the MegaUpload warrants had to be broad and vague

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73With the news that the warrants used to justify the storming of the home of MegaUpload founder Kim Dotcom many are looking for reasons why this is important, unimportant and a few other things in the process. We have heard from news sites that say this is the death blow for the US case and others that claim just the opposite. But what few have mentioned is why the US tried to pull of this in the first place and why they hoped it would not be noticed by the authorities.

When the MegaUpload raid first happened it was very big news. The media was again split on what it meant. SOPA and PIPA were both on the table, but it was becoming clear that they were not going to last. In an effort to show that dangers of piracy the content industry turned on someone they had actually been working with in the past. While they knew that MegaUpload did contain infringing information they had also worked with them to take down links to this content. MegaUpload complied in many cases, but also refused ones that were not valid. They did not revoke accounts or delete the content from their servers (which the content industry knew about and was not MegaUpload’s problem either). MeagUplaod felt (quite rightly) that if the movie studios wanted the content taken down they would need to go after the people posting it, not the host. This is actually the way the law works.

The MPAA and RIAA were also upset that MegaUpload was going to begin a service which would allow music and film makers to publish their own content to the public for a small fee to MegaUpload. This annoyed the industry and with SOPA and PIPA dying they needed to act and act now. In order to show the dangers of file lockers and how digital piracy was becoming a business model they apparently combined two different parts of MegaUpload into one that could be show to look like racketeering and also encouraging people to post pirated content. (Since you can store files and they were accepting payments to post music and movies (as long as they were original content from the makers and not copyrighted). They got their indictment and the coopted the DoJ and the FBI.

Now here I need to stop and step back to some of my own experience. A long time ago in the beginning days of Satellite TV (Dish and DirectTV) I worked for as a forensic data recovery specialist in cases that involved the production and sale of illegal satellite access cards or emulation hardware and software. I was present on a couple of raids during my time doing this and was also present in many of the meetings that led up to the service of the warrant and the collection of data and other evidence. Now in all of those meetings the planning was like a military campaign. We planned for any contingency; if the suspects were home, if they were not, if they resisted or refused entrance. There was a complete listing of what we were looking for and what each of us was authorized to do (we even had US Marshals along on the raids). The listing was extremely detailed in part because the attorneys I was working with were that good, but also because they wanted to make sure they got what they needed. In both cases we too what was needed and left what was not. In one case when accidental damage was done to a computer system that contained data, but also was integral to the other workings of the site (it was a warehouse and only a drop point for hardware) they paid for the repairs to the system that ended up costing over $1,000 in time and hardware. This is how a proper warrant, where you know that the individual is guilty has evidence that you need and you know where to find it, is executed.

Now in the Dotcom raid the FBI did not know what they were looking for as they had no real hard evidence to back up the warrants. If they did they would have been exceptionally specific in what they were looking for and were going to take. What this was ended up being a fishing expedition to find the evidence to back up the original indictment. This meant that they did not really have enough hard data to go and get a real warrant in the first place. Instead they wanted to get in and find information to try and build the case of racketeering and that MegaUpload (and Kim Dotcom) was encouraging piracy.

They needed to be able to grab anything in site and all computer data on the premises or they had nothing. Now they are trying to buy time to build the case they never had with evidence that was illegally obtained. They are also trying to prevent both MegaUpload and Kim Dotcom from mounting a proper defense by refusing to release money (that was potentially illegally seized) and trying to claim a conflict of interest when Dotcom and MegaUpload try to hire any copyright attorneys.

The US’ case is beginning to crumble around it while they stall for time to try and make this one stick. We expect that it is only a matter of time before the High Court in New Zealand declares the evidence collected invalid for the purposes of extradition. This will be followed by a request to have that same illegally collected data thrown out in the US. From there the writing will be on the wall for this case and it will only end up making the US DoJ, the FBI and the Content Industry look like fools to the rest of the world.

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Read 3027 times Last modified on Friday, 29 June 2012 14:09

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