9 ms·

Dotcom search warrants declared illegal

288 points by timClicks 14y ago

revelation 14y ago
Its actually not too rare for these to be declared illegal. The problem is that most judiciary offer no protection in this case. Fruit of the forbidden tree is not a world wide principle.
timdorr 14y ago
Anyone have a quick summary of this?
- deleted 14y ago
  [deleted]
- polemic 14y ago
  See http://www.nbr.co.nz/article/dotcom-search-warrants-declared-illegal-ca-122374 http://www.nbr.co.nz/article/dotcom-search-warrants-declared... or http://www.scoop.co.nz/stories/HL1206/S00201/court-dotcom-warrants-invalid-data-taken-by-fbi-illegally.htm http://www.scoop.co.nz/stories/HL1206/S00201/court-dotcom-wa... or an image of the judgement http://img.scoop.co.nz/media/pdfs/1206/CIV2012404192828062012reduced.pdf http://img.scoop.co.nz/media/pdfs/1206/CIV201240419282806201... To quote @yakmoose: I am glad our (New Zealand's) judiciary still functions. even if our police don't.
- timClicks 14y ago
  Quoting from the NBR (http://www.nbr.co.nz/article/dotcom-search-warrants-declared-illegal-ca-122374 http://www.nbr.co.nz/article/dotcom-search-warrants-declared...): "The main points from Justice Winkelmann's judgment: - The search warrants used under the Mutual Assistance in Criminal Matters Act were unlawful. - The FBI's removal of "clones", or copies, of computer data offshore was unlawful. - Any clones remaining in New Zealand must stay here. - The attorney-general must provide Mr Dotcom with any clones currently held by New Zealand police."
- DigitalSea 14y ago
  Not a quick summary but... This line from the ruling PDF basically explains why the searches were declared illegal: "The warrants did not adequately describe the offences to which they related. Indeed they fell well short of that. They were general warrants, and ash such, are invalid." The judge then goes on to say: "Before I leave this topic, there is one further peculiarity about the form in which the warrants were sought and issued which I record: the applications did not extend to racketeering, or to conspiracy to commit copyright infringement. It included money laundering rather than conspiracy to commit money laundering. Attached to the warrant was this document that stipulated what could be searched and seized by the authorities. It listed this particular part: "All records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including but not limited to, Megaupload, Megavideo and Megastuff Limited" The judge says about this (in reference to Dotcom's lawyer I believe): "I accept his submission that without definition of the 'Mega Conspiracy' it is hard to imagine what falls within this category" Another juicy bunch of tidbits are these: "Assuming then that the police were operating under a valid warrant, what were the police entitled to do in this case? There were required to conduct a preliminary sorting exercise at the premises, as the warrants could not authorise an officer to removed from the premises indiscriminately all documents and records. In this case the police faced the additional difficulty that they were not the investigating officers and had limited knowledge of the operation." "Given the state of knowledge of the police, it would have been proper approach for them to involve officers from the FBI in this exercise. Section 46(1) authorises the use by police of "such assistants as may be reasonable in the circumstances for the purpose of the entry and search. Because assistants would have been foreign law enforcement officials it maybe have been prudent to have them as named assistants in the warrants authorising the search." "Providing the police act reasonable in so doing, following the initial sorting exercise, they were then entitled to remove from the premises those things which at the time they reasonable believed contained material which might be of evidential value." Short story is: the warrants were too broad, didn't accurately describe what the items were being seized for in relating to the offences and thus the warrants were unlawful not to mention the police technically weren't allowed to seize what they did from the properties in the warrants.
  - shrikant 14y ago
- pg 14y ago
  (In case anyone is confused by this thread, the original link was to a pdf of the judgment on some highly overloaded government server in NZ.)
  - mixmax 14y ago
    This has been mentioned before, but could you please not change links and edit titles unless there's a reason for it. Or at least make it transparent to the users that something has been changed. It's enormously irritating.
    - obtu 14y ago
      pg did make it transparent in this instance. I think “make a note when you edit” is a good guideline, I've seen it in other communities.
sown 14y ago
I'm not declaring this a conspiracy. It could have been as easily as some prosecutor somewhere letting zeal exceed judgement. But... I somehow get the impression that what ever forces perpetrated this don't really care it wasn't legal, so long as MU got ruined for some reason, any reason. Even if it was by accident.
- mxxx 14y ago
  Yeah, from what I've read the FBI took copies of everything they need and will essentially just flip the bird to NZ authorities. Go team USA.
  - caf 14y ago
    NZ authorities are used to being flipped the bird by erstwhile allies. Mossad agents using forged NZ passports, French agents assassinating Greenpeace activists in NZ, French nuclear testing in the south Pacific...
    - lancewiggs 14y ago
      And we caught and shamed them all. It's a small country and we have a strong sense of fairness. This has backfired on the MPAA and other corporate-owner-rights advocates.
      - locusm 14y ago
        Yes we caught them, and then got paid off to let them go. They served 2 years for bombing and killing an unarmed man.
      - yardie 14y ago
        So the punishment for murder is...public shaming?
        lancewiggs 14y ago
        This ham-fisted affair bought shame to the police, politicians and judiciary, and, now squarely in the public eye, they are endeavouring to do the right thing. There were, I would argue, a few bad calls by a few people who should have followed the normal processes, but they likely made them under pressure from within and from the USA, who in turn were pressured by the MPAA. There was not, I surmise, a lot of decision making happening that was informed by the likes Hacker News readers. That is getting fixed. We have some very smart judges, who are getting across all of this - Judge Harvey springs to mind as someone who got his head around a lot of the online issues. The politicians read the newspapers - and are on twitter, and they are watching the wind and get it too. The Police do not like to be seen to over react and conduct swat raids at the behest of a foreign entity (the MPAA) - I can't see that happening again. Meanwhile @kimdotcom is fantastic on twitter - open, disarmingly candid and sympathetic.
accountswu 14y ago
When I first read the title I thought that search engines that all .com domain searches have been declared illegal and now the Kiwis cannot search on .com domains (I know that sounds weird, more like meaningless :)). Edit: Now the title has been updated, previously it was: <Dotcom searches declared illegal (judgment full text)>
res0nat0r 14y ago
This appears to be related to the raid on his house, is the seizure of all of the servers in VA still valid? That is where I'm sure the majority of the evidence related to the case lies and if that is still valid I would think there is still a major case to be had.
Piskvorrr 14y ago
I guess that since the farcical attempt at pressuring NZ into submission failed, a full-scale war on NZ is now MAFIAA's only option. This shouldn't be very hard to arrange - NZ surely must have WMDs, no?
- Negitivefrags 14y ago
  New Zealand is probably one of the most unlikely nations to harbour WMDs (http://en.wikipedia.org/wiki/New_Zealand%27s_nuclear-free_zone http://en.wikipedia.org/wiki/New_Zealand%27s_nuclear-free_zo...)
  - Xylakant 14y ago
    Please don't confuse me with facts, I already have an opinion! (I assume the OP refers to the Iraq war which was justified with WMD that never were found)
    - tdrgabi 14y ago
      Actually, if I understand the wikipedia link, the nuclear free zone allows nuclear weapons.
      - Negitivefrags 14y ago
        > prohibiting any New Zealand citizen or resident "to manufacture, acquire, possess, or have any control over any nuclear explosive device."
        obtu 14y ago
        That seems designed to allow NATO enclaves.
        Gmo 14y ago
        New-Zealand would have to be in the Atlantic Ocean for that ...
lostlogin 14y ago
I took it to mean that by and large there is no support for nuclear weapons by New Zealanders.
- locusm 14y ago
  I was 15 at the time and I recall my family being anti nuke but not anti american. We banned any nuclear powered ships from entering the harbour from memory.
beehave 14y ago
What's somewhat amusing about this, perhaps, is that NZ up until recently did not even have a "Bill of Rights". And the inspiration for it came from guess where? Many years ago, one of NZ's former Ministers of Justice spent some years in the US (U. of Iowa? I have forgotten) and when he returned to the Antipodes he brought the idea home with him. Though there is no "constitution", and Parliament is still supreme, NZ does have a Bill of Rights. And though it's rather unusual in a Parliamentary system and arguably "toothless", it was mentioned in this opinion! Now, looking at this series of events: the use of the NZ equivalent of a "SWAT team" in order to take an allleged copyright infringer (with no history of violent crime) into custody (how much did that show of force cost the NZ taxpayer?), and the way they handled the evidence, it's the US that seems to be lacking procedural safeguards. Or maybe they are just ignoring them. NZ is now put in the strange position of reviewing the actions of the country which is supposed to be the "world leader" in concepts like freedom from unlawful seizures of property; heck, they inspired NZ to adopt a Bill of Rights! Wozniak was recently in NZ and visited Dotcom. At least one prominent NZ musician has stated he's behind Dotcom's cause. Whether or not it was intentional it seems the way this case was handled by whomever was making the decisions is backfiring on them on the public relations front.
- timClicks 14y ago
  No, we don't have a Bill of Rights. We have no supreme law. Nor should we. That just drags large, societal disputes into the courts rather than the democratically elected Parliament. That means that the highest courts become political battlefields. See also political appointments to the USA's Supreme Court. The Bill of Rights Act and the Human Rights Act are ordinary law. If a future Parliament wanted to breach the rights provided in those statutes, they need to face the political force of doing so.
mtgx 14y ago
So who goes to jail over this? I mean, it's "illegal" isn't it? So that implies someone must get some jail time for it?
- dangrossman 14y ago
  No, that's not implied at all. The remedy for most "illegal" things is repayment of damages suffered, or a statutory fine. Nor can you imprison an inanimate entity, like the government that carried out the illegal warrant.
  - morsch 14y ago
    How convenient.
    - Kell 14y ago
      What's convenient ? ? The inability to imprison inanimate entities ? Isn't that... you know... logic. Maybe you're speaking of the fact that most democratic judicial system have a tendency not to send everyone to prison ? I understand that this seems strange in US... but in most places, prison is really the last resort. And I'm happy that people are not sent to jail jail for mistrials. Or for abuse of the judicial system. If I had a risk of imprisonment... I'll probably not even risk any judicial process... too risky. I think your being quite silly in there.
      - harshreality 14y ago
        I think the point is, there's a line of thinking that when anyone, a person or an entity, uses force against someone in a way determined to be illegal (not just making some mistake on paperwork), some person should be put in prison over it. Whether it's the leader of the illegal operation, or the bureaucrat who authorized it. A few bureaucrats and agents would end up in prison due to mistakes, but private citizens already end up in prison due to law enforcement mistakes. If government employees don't like taking that risk, they shouldn't be government employees. Better a few government employees behind bars "unfairly" than more than a few citizens behind bars "unfairly".

288 points by timClicks 14y ago

Its actually not too rare for these to be declared illegal. The problem is that most judiciary offer no protection in this case. Fruit of the forbidden tree is not a world wide principle.

timdorr 14y ago

Anyone have a quick summary of this?

deleted 14y ago
[deleted]
polemic 14y ago
See http://www.nbr.co.nz/article/dotcom-search-warrants-declared-illegal-ca-122374 http://www.nbr.co.nz/article/dotcom-search-warrants-declared... or http://www.scoop.co.nz/stories/HL1206/S00201/court-dotcom-warrants-invalid-data-taken-by-fbi-illegally.htm http://www.scoop.co.nz/stories/HL1206/S00201/court-dotcom-wa... or an image of the judgement http://img.scoop.co.nz/media/pdfs/1206/CIV2012404192828062012reduced.pdf http://img.scoop.co.nz/media/pdfs/1206/CIV201240419282806201... To quote @yakmoose: I am glad our (New Zealand's) judiciary still functions. even if our police don't.
timClicks 14y ago
Quoting from the NBR (http://www.nbr.co.nz/article/dotcom-search-warrants-declared-illegal-ca-122374 http://www.nbr.co.nz/article/dotcom-search-warrants-declared...): "The main points from Justice Winkelmann's judgment: - The search warrants used under the Mutual Assistance in Criminal Matters Act were unlawful. - The FBI's removal of "clones", or copies, of computer data offshore was unlawful. - Any clones remaining in New Zealand must stay here. - The attorney-general must provide Mr Dotcom with any clones currently held by New Zealand police."
DigitalSea 14y ago
Not a quick summary but... This line from the ruling PDF basically explains why the searches were declared illegal: "The warrants did not adequately describe the offences to which they related. Indeed they fell well short of that. They were general warrants, and ash such, are invalid." The judge then goes on to say: "Before I leave this topic, there is one further peculiarity about the form in which the warrants were sought and issued which I record: the applications did not extend to racketeering, or to conspiracy to commit copyright infringement. It included money laundering rather than conspiracy to commit money laundering. Attached to the warrant was this document that stipulated what could be searched and seized by the authorities. It listed this particular part: "All records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including but not limited to, Megaupload, Megavideo and Megastuff Limited" The judge says about this (in reference to Dotcom's lawyer I believe): "I accept his submission that without definition of the 'Mega Conspiracy' it is hard to imagine what falls within this category" Another juicy bunch of tidbits are these: "Assuming then that the police were operating under a valid warrant, what were the police entitled to do in this case? There were required to conduct a preliminary sorting exercise at the premises, as the warrants could not authorise an officer to removed from the premises indiscriminately all documents and records. In this case the police faced the additional difficulty that they were not the investigating officers and had limited knowledge of the operation." "Given the state of knowledge of the police, it would have been proper approach for them to involve officers from the FBI in this exercise. Section 46(1) authorises the use by police of "such assistants as may be reasonable in the circumstances for the purpose of the entry and search. Because assistants would have been foreign law enforcement officials it maybe have been prudent to have them as named assistants in the warrants authorising the search." "Providing the police act reasonable in so doing, following the initial sorting exercise, they were then entitled to remove from the premises those things which at the time they reasonable believed contained material which might be of evidential value." Short story is: the warrants were too broad, didn't accurately describe what the items were being seized for in relating to the offences and thus the warrants were unlawful not to mention the police technically weren't allowed to seize what they did from the properties in the warrants.
- shrikant 14y ago
pg 14y ago
(In case anyone is confused by this thread, the original link was to a pdf of the judgment on some highly overloaded government server in NZ.)
- mixmax 14y ago
  This has been mentioned before, but could you please not change links and edit titles unless there's a reason for it. Or at least make it transparent to the users that something has been changed. It's enormously irritating.
  - obtu 14y ago
    pg did make it transparent in this instance. I think “make a note when you edit” is a good guideline, I've seen it in other communities.

sown 14y ago

I'm not declaring this a conspiracy. It could have been as easily as some prosecutor somewhere letting zeal exceed judgement. But... I somehow get the impression that what ever forces perpetrated this don't really care it wasn't legal, so long as MU got ruined for some reason, any reason. Even if it was by accident.

mxxx 14y ago
Yeah, from what I've read the FBI took copies of everything they need and will essentially just flip the bird to NZ authorities. Go team USA.
- caf 14y ago
  NZ authorities are used to being flipped the bird by erstwhile allies. Mossad agents using forged NZ passports, French agents assassinating Greenpeace activists in NZ, French nuclear testing in the south Pacific...
  - lancewiggs 14y ago
    And we caught and shamed them all. It's a small country and we have a strong sense of fairness. This has backfired on the MPAA and other corporate-owner-rights advocates.
    - locusm 14y ago
      Yes we caught them, and then got paid off to let them go. They served 2 years for bombing and killing an unarmed man.
    - yardie 14y ago
      So the punishment for murder is...public shaming?
      - lancewiggs 14y ago
        This ham-fisted affair bought shame to the police, politicians and judiciary, and, now squarely in the public eye, they are endeavouring to do the right thing. There were, I would argue, a few bad calls by a few people who should have followed the normal processes, but they likely made them under pressure from within and from the USA, who in turn were pressured by the MPAA. There was not, I surmise, a lot of decision making happening that was informed by the likes Hacker News readers. That is getting fixed. We have some very smart judges, who are getting across all of this - Judge Harvey springs to mind as someone who got his head around a lot of the online issues. The politicians read the newspapers - and are on twitter, and they are watching the wind and get it too. The Police do not like to be seen to over react and conduct swat raids at the behest of a foreign entity (the MPAA) - I can't see that happening again. Meanwhile @kimdotcom is fantastic on twitter - open, disarmingly candid and sympathetic.

accountswu 14y ago

When I first read the title I thought that search engines that all .com domain searches have been declared illegal and now the Kiwis cannot search on .com domains (I know that sounds weird, more like meaningless :)). Edit: Now the title has been updated, previously it was: <Dotcom searches declared illegal (judgment full text)>

res0nat0r 14y ago

This appears to be related to the raid on his house, is the seizure of all of the servers in VA still valid? That is where I'm sure the majority of the evidence related to the case lies and if that is still valid I would think there is still a major case to be had.

Piskvorrr 14y ago

I guess that since the farcical attempt at pressuring NZ into submission failed, a full-scale war on NZ is now MAFIAA's only option. This shouldn't be very hard to arrange - NZ surely must have WMDs, no?

Negitivefrags 14y ago
New Zealand is probably one of the most unlikely nations to harbour WMDs (http://en.wikipedia.org/wiki/New_Zealand%27s_nuclear-free_zone http://en.wikipedia.org/wiki/New_Zealand%27s_nuclear-free_zo...)
- Xylakant 14y ago
  Please don't confuse me with facts, I already have an opinion! (I assume the OP refers to the Iraq war which was justified with WMD that never were found)
  - tdrgabi 14y ago
    Actually, if I understand the wikipedia link, the nuclear free zone allows nuclear weapons.
    - Negitivefrags 14y ago
      > prohibiting any New Zealand citizen or resident "to manufacture, acquire, possess, or have any control over any nuclear explosive device."
      - obtu 14y ago
        That seems designed to allow NATO enclaves.
        Gmo 14y ago
        New-Zealand would have to be in the Atlantic Ocean for that ...

lostlogin 14y ago

I took it to mean that by and large there is no support for nuclear weapons by New Zealanders.

locusm 14y ago
I was 15 at the time and I recall my family being anti nuke but not anti american. We banned any nuclear powered ships from entering the harbour from memory.

beehave 14y ago

What's somewhat amusing about this, perhaps, is that NZ up until recently did not even have a "Bill of Rights". And the inspiration for it came from guess where? Many years ago, one of NZ's former Ministers of Justice spent some years in the US (U. of Iowa? I have forgotten) and when he returned to the Antipodes he brought the idea home with him. Though there is no "constitution", and Parliament is still supreme, NZ does have a Bill of Rights. And though it's rather unusual in a Parliamentary system and arguably "toothless", it was mentioned in this opinion! Now, looking at this series of events: the use of the NZ equivalent of a "SWAT team" in order to take an allleged copyright infringer (with no history of violent crime) into custody (how much did that show of force cost the NZ taxpayer?), and the way they handled the evidence, it's the US that seems to be lacking procedural safeguards. Or maybe they are just ignoring them. NZ is now put in the strange position of reviewing the actions of the country which is supposed to be the "world leader" in concepts like freedom from unlawful seizures of property; heck, they inspired NZ to adopt a Bill of Rights! Wozniak was recently in NZ and visited Dotcom. At least one prominent NZ musician has stated he's behind Dotcom's cause. Whether or not it was intentional it seems the way this case was handled by whomever was making the decisions is backfiring on them on the public relations front.

timClicks 14y ago
No, we don't have a Bill of Rights. We have no supreme law. Nor should we. That just drags large, societal disputes into the courts rather than the democratically elected Parliament. That means that the highest courts become political battlefields. See also political appointments to the USA's Supreme Court. The Bill of Rights Act and the Human Rights Act are ordinary law. If a future Parliament wanted to breach the rights provided in those statutes, they need to face the political force of doing so.

mtgx 14y ago

So who goes to jail over this? I mean, it's "illegal" isn't it? So that implies someone must get some jail time for it?

dangrossman 14y ago
No, that's not implied at all. The remedy for most "illegal" things is repayment of damages suffered, or a statutory fine. Nor can you imprison an inanimate entity, like the government that carried out the illegal warrant.
- morsch 14y ago
  How convenient.
  - Kell 14y ago
    What's convenient ? ? The inability to imprison inanimate entities ? Isn't that... you know... logic. Maybe you're speaking of the fact that most democratic judicial system have a tendency not to send everyone to prison ? I understand that this seems strange in US... but in most places, prison is really the last resort. And I'm happy that people are not sent to jail jail for mistrials. Or for abuse of the judicial system. If I had a risk of imprisonment... I'll probably not even risk any judicial process... too risky. I think your being quite silly in there.
    - harshreality 14y ago
      I think the point is, there's a line of thinking that when anyone, a person or an entity, uses force against someone in a way determined to be illegal (not just making some mistake on paperwork), some person should be put in prison over it. Whether it's the leader of the illegal operation, or the bureaucrat who authorized it. A few bureaucrats and agents would end up in prison due to mistakes, but private citizens already end up in prison due to law enforcement mistakes. If government employees don't like taking that risk, they shouldn't be government employees. Better a few government employees behind bars "unfairly" than more than a few citizens behind bars "unfairly".