AUCKLAND, New Zealand—The Kim Dotcom situation is now being referred to as a "farce" by one New Zealand columnist and the country's Green Party is now calling for an independent investigation into the raid by police on Dotcom's home. This, after the High Court ruled Thursday that the warrants issued to justify the raid were invalid and evidence that included computer hard drives was illegally seized.
Though most fingers are being pointed at the actions of New Zealand authorities, the court indicated that the Federal Bureau of Investigation was also involved in illegal activity for copying evidence that was then sent back to the United States.
At risk, according to legal experts, is the extradition case against Dotcom.
"If the major plank of the extradition argument relies on the evidence obtained from the searches, then I would have thought there's a problem," Jonathan Krebs of New Zealand's Law Society told Reuters, adding, "That's not to say the case will fall over, it may be there's a lot of other evidence that the authorities can put before the court arising from the United States or somewhere else in the world."
Dotcom, 38, was arrested in January along with several employees following a raid on his Coatesville luxury country estate as part of an FBI-led investigation instigated after federal prosecutors alleged that Dotcom had netted $175 million in ill-gotten gains over the course of several years through his Megaupload empire. He was granted bail in February, and since then has been allowed access to funds for lawyers and living expenses and increasingly greater freedom to move about.
In the interim months, while his lawyers fight on his behalf in America and New Zealand, utilizing his unique PR skills, according to New Zealand Herald columnist Fran O'Sullivan, Dotcom has been winning over much the country's media as well as the public.
"Since police launched their helicopter swoop at the FBI's behest," she wrote in a column published in the Saturday issue, "the internet entrepreneur has carved himself out a heroic image within New Zealand newsmedia. Megaupload's catchy marketing ditty—'M-E-G-A, send me a file today'—trips off the tongue of the many Kiwis who have been captivated by the skilful manner in which the German entrepreneur played with MP John Banks' reputation, held 'Twitter parties' with select media and basically 'stuck it up' the authorities." He has the media, she added, in "the palm of his hand."
But O'Sullivan is far less concerned with Dotcom's public appeal than she is with the perception now left in the minds of many that the NZ police have seriously compromised their autonomy and the country's reputation because of their eagerness to do the FBI's bidding in a case being watched by people around the world.
"The Kim Dotcom story was always going to appeal to those Kiwis who harbor a 'Don't mess with us' response to outside bullying—particularly by the United States," she wrote. "With this in mind, surely the Solicitor-General and the police should have been very sure indeed that the Coatesville raid and subsequent actions were legal and that everything was done by the book. Not jumping to attention when the FBI snaps its fingers in a fashion that makes it look as if the U.S. has sovereignty over New Zealand."
Those exact same sentiments were echoed by Green Party police spokesperson David Clendon, who said, "Given that our police and Crown lawyers were working on behalf of the United States, they should have made certain that New Zealand’s laws weren’t trampled on."
Calling the original (and now botched) raid on Dotcom's home "like something from a bad Hollywood movie," Clendon added, "Given the disquieting information that has emerged about this case to date it may be necessary for a formal review of how New Zealand’s justice services interact with foreign governments’ criminal investigation services."
According to Ira Rifkin, Megaupload's U.S.-based lawyer, the High Court ruling invaliding the raids was a "tremendous blow" to the case against his client. "The government was engaged not only in wrongful conduct but in double wrongful conduct: they weren't allowed to go ahead and do the initial seizure ... [and] they violated the law again by bringing [hard drives] offshore when they weren't allowed to," he told Radio New Zealand.
He added that on Friday, during a motion hearing in USA v. Dotcom, the criminal case brought by the feds in January against Dotcom, Megaupload, Vestor Limited and individual defendants Finn Batato, Julius Bencko, Sven Echternach, Mathias Ortmann, Andrus Nomm and Bram van per Kolk, "The court may hear a motion to dismiss Megaupload, and we also have in the queue a motion to release funds."
Though Justice Helen Winkelmann of the High Court did not address the question of whether the evidence that was seized as the result of the problematic search should be admissible in the extradition hearing, she did order, according to the Sydney Morning Herald, that "no more items taken in the raids could be removed from New Zealand, and instructed the attorney-general to return clones of the hard drives held by New Zealand police."
However, testimony provided in the High Court case indicates the extent to which U.S. law enforcement was involved in the raid, and the degree to which local police were willing to defer to their foreign counterparts, to the point that they handed over decisions about what to do with items seized in the raid.
"Police had said they had no intention of sorting items seized in the raid from the 'relevant' to the 'irrelevant' and would leave that to the FBI," reported the Herald. "However, the judge said that approach was not available to them. The law stated that only applicable items in the investigation could be sent to a foreign authority."
The extradition case is expected to begin in New Zealand in August. According to ABS-CBN, "Under New Zealand law, the alleged offences must be an offence in both countries punishable by a jail sentence."
Perhaps it is now reasonable to ask whether the feds overstepped their authority in their rush to seize Dotcom and his computer files, thus putting the whole case at risk, and whether, if they have messed up the Megaupload case, future cases against global networks accused of aiding and abetting massive copyright infringement will be put at risk as a result.
