5 ms·

I'm still wondering how the US legally obtained copies of Megaupload internal email prior to seizing their servers.

earl 15y ago
What I find far crazier is how does the government get off stealing domain names and servers, taking Megaupload's business dark, and of course encouraging all users to leave, without a conviction. Or any adversarial representation from megaupload, Kim whatever-his-name-is, at all. It feels a lot like Russia: some unaccountable someone in the fbi or doj just decided to steal this company and did so, with the full support of the government.
- mdasen 15y ago
  So, I brought up something similar to a third year law student last week. As he explained it, when the police arrest a drug dealer, the drugs are seized and tested for evidence. They don't get to keep the drugs, possibly destroy or sell them, etc. while the trial is pending. Likewise, in this case, the servers are going to be seized as evidence pending trial. He also noted that a grand jury had been impaneled and indicted Megaupload (along with six individuals) and a judge had issued a warrant. So, it wasn't just someone at the FBI or DOJ. It was a grand jury in the Eastern District of Virginia that indicted them. It is being prosecuted by a US Attorney. More than 20 search warrants were issued in nine countries. It was investigated by the FBI, the New Zealand Police, Hong Kong Customs, the Public Prosecutor's Office in the Netherlands, London's Metropolitan Police, the German Public Prosecutor, the Royal Canadian Mounted Police, and others. Megaupload and the named individuals will have a public trial. I'm not saying that you should like it, but it is different from "feeling a lot like Russia". There's a certain amount of secrecy that happens in a criminal investigation to prevent those being investigated from being able to hide what they're doing (if they're doing something wrong). I definitely had your reaction when I found out that the site was down and they hadn't had a chance to defend themselves. I think most of us see this as a civil offense - in which case, the seizure might not be justified (I use "might" because I'm not a lawyer). However, if you look at criminal offenses (bank robbery, drugs, gun running, art theft, etc.) you wouldn't expect the accused to keep that property pending trial. We'll see how this plays out. If you don't believe what they did should be a criminal offense, even if they're "guilty" of it, you're not going to agree with any of what the governments are doing. You're going to think that they should be sued similar to what happened to YouTube and have the chance to defend themselves while operating. That's an argument to change the law and you won't be satisfied by the process no matter how above board it is. And I'm not saying that you're wrong - Megaupload does seem a lot more innocuous (even if wrong) than what we generally consider racketeering or conspiracy. I mean, if Megaupload continued, you're not going to have some kid getting addicted to crack on the street or gangs getting guns and causing violence in the community - some rich media company potentially loses a little profit. And I think that reality makes a strong argument that maybe seizure wasn't necessary. However, it's also important to know that there was a lot of due process in a lot of jurisdictions with a lot of different law enforcement working together on this one. It wasn't just seized because some unanswerable someone in a random agency decided they wanted to. Likewise, there will be a trial.
  - earl 15y ago
    Nothing you said contradicted the fact that an unaccountable person in the government broke their business without any opportunity for megaupload to defend themselves. And so it is exactly like Russia. Unless you think that a grand jury indictment -- and let's not pretend, prosecutors are more than capable of indicting a street post, or a ham sandwhich [1] -- should give the doj or fbi the ability to destroy a business. Further, I'm making no claims about whether megaupload's conduct should be criminal; I'm merely claiming that permitting unaccountable people to destroy companies before any conviction or before megaupload has had any chance to defend itself is bullshit. So no, there wasn't anything like real due process. [1] "As a practical matter, a federal grand jury will almost always return an indictment presented to it by a prosecutor. This is the basis for Judge Saul Wachler's famous saying that a prosecutor can get a grand jury to 'indict a ham sandwich.'" — Solomon L. Wisenberg, "Federal Grand Jury Crash Course" http://www.wisenberglaw.com/White-Collar-Criminal-Defense/Grand-Jury-Investigations.shtml
    - Steko 15y ago
      Look if the police are corrupt and go around destroying legitimate businesses willy nilly it's the people's responsibility to demand new police. However there's no indication that's what's going on here. Every indication is that this business knew exactly what they were doing at the highest levels.
Natsu 15y ago
Warrants and/or subpoenas. I seem to recall that email that has been stored long enough doesn't even require a subpoena. I guess it depends on where the email was hosted and who had access.
- epoxyhockey 15y ago
  Ok, so the FBI served Carpathia with a search warrant and .. somehow copied the internal email directly from the physical server without MU being aware of that? The FBI then goes home with their USB stick and reads through that collection of email to find incriminating evidence. That evidence is used as a foundation for their indictment, which is then presented to a grand jury.. to then go back to Carpathia and physically take all of the servers? Just trying to figure this out..
  - aviv 15y ago
    From their website: "Carpathia Government Solutions™ (CGS™) is the leading provider of federally-compliant managed hosting services for government agencies" -- MegaUpload chose the wrong hosting provider for their type of business.
  - wmf 15y ago
    If Mega was running their own email server then I agree that a search warrant wouldn't help much, since it would tip off the targets. Maybe Carnivore could work in that scenario. But if they were using SaaS email, the warrant could be delivered to the service provider and the targets would never know.
nextparadigms 15y ago
Can't they use the Patriot Act to do that? The Patriot Act was used to catch terrorists, and yet the vast majority of cases in which they used it are drug cases. Ever since 9/11, this whole culture of not following the Constitution, or trying to exploit the loopholes in the laws, has formed. There's no spirit of the law anymore. Now authorities try to find the smallest possible potential loophole to do whatever they want to do. Just look at the GPS tracking issue, which normally you'd think should be illegal. But it took a 9-0 Supreme Court decision to make that clear for the authorities. At this rate, the Supreme Court will be overwhelmed with the number of overreaches by law enforcement that they'll have to decide on.
- Steko 15y ago
  He's assuming all these emails are on an internal network. If that were the case it's likely the government gained access from a MU employee they leaned on (there are redacted MU conspirators from the indictment who are apparently not presently being charged meaning they may have been cooperating). What's more likely it seems is that these emails were sent internationally and the government (armed with a warrant hopefully) used their backdoors to access them. The arrests were apparently timed to conincide with many of the international employees being in NZ for KDC's birthday.

earl 15y ago

What I find far crazier is how does the government get off stealing domain names and servers, taking Megaupload's business dark, and of course encouraging all users to leave, without a conviction. Or any adversarial representation from megaupload, Kim whatever-his-name-is, at all. It feels a lot like Russia: some unaccountable someone in the fbi or doj just decided to steal this company and did so, with the full support of the government.

mdasen 15y ago
So, I brought up something similar to a third year law student last week. As he explained it, when the police arrest a drug dealer, the drugs are seized and tested for evidence. They don't get to keep the drugs, possibly destroy or sell them, etc. while the trial is pending. Likewise, in this case, the servers are going to be seized as evidence pending trial. He also noted that a grand jury had been impaneled and indicted Megaupload (along with six individuals) and a judge had issued a warrant. So, it wasn't just someone at the FBI or DOJ. It was a grand jury in the Eastern District of Virginia that indicted them. It is being prosecuted by a US Attorney. More than 20 search warrants were issued in nine countries. It was investigated by the FBI, the New Zealand Police, Hong Kong Customs, the Public Prosecutor's Office in the Netherlands, London's Metropolitan Police, the German Public Prosecutor, the Royal Canadian Mounted Police, and others. Megaupload and the named individuals will have a public trial. I'm not saying that you should like it, but it is different from "feeling a lot like Russia". There's a certain amount of secrecy that happens in a criminal investigation to prevent those being investigated from being able to hide what they're doing (if they're doing something wrong). I definitely had your reaction when I found out that the site was down and they hadn't had a chance to defend themselves. I think most of us see this as a civil offense - in which case, the seizure might not be justified (I use "might" because I'm not a lawyer). However, if you look at criminal offenses (bank robbery, drugs, gun running, art theft, etc.) you wouldn't expect the accused to keep that property pending trial. We'll see how this plays out. If you don't believe what they did should be a criminal offense, even if they're "guilty" of it, you're not going to agree with any of what the governments are doing. You're going to think that they should be sued similar to what happened to YouTube and have the chance to defend themselves while operating. That's an argument to change the law and you won't be satisfied by the process no matter how above board it is. And I'm not saying that you're wrong - Megaupload does seem a lot more innocuous (even if wrong) than what we generally consider racketeering or conspiracy. I mean, if Megaupload continued, you're not going to have some kid getting addicted to crack on the street or gangs getting guns and causing violence in the community - some rich media company potentially loses a little profit. And I think that reality makes a strong argument that maybe seizure wasn't necessary. However, it's also important to know that there was a lot of due process in a lot of jurisdictions with a lot of different law enforcement working together on this one. It wasn't just seized because some unanswerable someone in a random agency decided they wanted to. Likewise, there will be a trial.
- earl 15y ago
  Nothing you said contradicted the fact that an unaccountable person in the government broke their business without any opportunity for megaupload to defend themselves. And so it is exactly like Russia. Unless you think that a grand jury indictment -- and let's not pretend, prosecutors are more than capable of indicting a street post, or a ham sandwhich [1] -- should give the doj or fbi the ability to destroy a business. Further, I'm making no claims about whether megaupload's conduct should be criminal; I'm merely claiming that permitting unaccountable people to destroy companies before any conviction or before megaupload has had any chance to defend itself is bullshit. So no, there wasn't anything like real due process. [1] "As a practical matter, a federal grand jury will almost always return an indictment presented to it by a prosecutor. This is the basis for Judge Saul Wachler's famous saying that a prosecutor can get a grand jury to 'indict a ham sandwich.'" — Solomon L. Wisenberg, "Federal Grand Jury Crash Course" http://www.wisenberglaw.com/White-Collar-Criminal-Defense/Grand-Jury-Investigations.shtml
  - Steko 15y ago
    Look if the police are corrupt and go around destroying legitimate businesses willy nilly it's the people's responsibility to demand new police. However there's no indication that's what's going on here. Every indication is that this business knew exactly what they were doing at the highest levels.

Natsu 15y ago

Warrants and/or subpoenas. I seem to recall that email that has been stored long enough doesn't even require a subpoena. I guess it depends on where the email was hosted and who had access.

epoxyhockey 15y ago
Ok, so the FBI served Carpathia with a search warrant and .. somehow copied the internal email directly from the physical server without MU being aware of that? The FBI then goes home with their USB stick and reads through that collection of email to find incriminating evidence. That evidence is used as a foundation for their indictment, which is then presented to a grand jury.. to then go back to Carpathia and physically take all of the servers? Just trying to figure this out..
- aviv 15y ago
  From their website: "Carpathia Government Solutions™ (CGS™) is the leading provider of federally-compliant managed hosting services for government agencies" -- MegaUpload chose the wrong hosting provider for their type of business.
- wmf 15y ago
  If Mega was running their own email server then I agree that a search warrant wouldn't help much, since it would tip off the targets. Maybe Carnivore could work in that scenario. But if they were using SaaS email, the warrant could be delivered to the service provider and the targets would never know.

nextparadigms 15y ago

Can't they use the Patriot Act to do that? The Patriot Act was used to catch terrorists, and yet the vast majority of cases in which they used it are drug cases. Ever since 9/11, this whole culture of not following the Constitution, or trying to exploit the loopholes in the laws, has formed. There's no spirit of the law anymore. Now authorities try to find the smallest possible potential loophole to do whatever they want to do. Just look at the GPS tracking issue, which normally you'd think should be illegal. But it took a 9-0 Supreme Court decision to make that clear for the authorities. At this rate, the Supreme Court will be overwhelmed with the number of overreaches by law enforcement that they'll have to decide on.

Steko 15y ago
He's assuming all these emails are on an internal network. If that were the case it's likely the government gained access from a MU employee they leaned on (there are redacted MU conspirators from the indictment who are apparently not presently being charged meaning they may have been cooperating). What's more likely it seems is that these emails were sent internationally and the government (armed with a warrant hopefully) used their backdoors to access them. The arrests were apparently timed to conincide with many of the international employees being in NZ for KDC's birthday.