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Once Again, New Zealand's Spying On Megaupload Execs Found To Be Illegal

Published: August 26, 2017
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Source: Tech Dirt


Earlier this week, the new documentary by Annie Goldson about Kim Dotcom, Kim Dotcom: Caught In The Web was released. It's available on basically any authorized platform (and, not surprisingly, quickly showed up on a number of unauthorized platforms as well). I should note that I sat for two interviews with the filmmakers, and am very briefly in the film. It's really worth watching. While it doesn't go as deep into the weeds of the specific legal issues at play as I, as a legal geek, might enjoy, that's understandable as a more mass market documentary. And I think it does a really great job of at least getting across the basic issues, of how people in Hollywood, the DOJ and New Zealand law enforcement, intelligence and government were so won over by the image of Kim Dotcom, that they didn't bother much with the legal details.

One aspect of the legal case that is definitely discussed in the documentary is the fact that the New Zealand intelligence service, GCSB, illegally spied on Kim Dotcom on behalf of the US government. That's supposed to be forbidden, as the GCSB is only supposed to spy on foreigners, and not citizens or permanent residents. This came out fairly early on in the case against Dotcom, but there's been an ongoing legal battle (one of many...) into what it means concerning the case against him. GCSB had said that they didn't mean to break the law, so it shouldn't matter. And New Zealand moved to change the law to expand GCSB's surveillance powers over New Zealanders in the future.

But on Friday, New Zealand's High Court officially unveiled a ruling from back in December, saying that the surveillance of two of Dotcom's colleagues was illegal. This goes beyond what was previously revealed a few years back. Of course, it appears that part of the ruling is based on GCSB refusing to provide any details, claiming they are "top secret" and that to respond to the charges would "jeopardise the national security of New Zealand." Yes, or perhaps just jeopardize GCSB.

It's not entirely clear that this will have much of an impact on the case for Dotcom directly, though it once again highlights how the investigation and case against him involved an awful lot of cut corners by officials who totally bought into Hollywood's repeated story about how Dotcom was "Dr. Evil." Dotcom's lawyer, Ira Rothken, is arguing that this is yet another reason why the case should be dropped -- but so far the courts haven't really seemed to care much about all of the errors, law breaking and over reaction in building the case against Dotcom. However, as Rothken notes:

"This case and extradition should now be dismissed in the interests of justice.

"The government's illegal conduct has reached such an extreme level that we believe that no court should entertain an extradition proceeding so tainted with state sponsored abuse and violations of basic human rights."

For years now, I've explained why the case against Dotcom has serious problems -- mainly in that it makes up elements of criminal activity that simply don't exist in the law. The fact that there was also illegal spying on Dotcom and his partners only raises more questions. Yet, so far, the courts don't seem very interested in dealing with any of that, preferring to smooth things over with a simple "but bad stuff happened, therefore he should be punished." It's one of the most extreme examples we've seen of what law professor Eric Goldman has called out concerning lawsuit about infringement online: the courts frequently ignore the actual law if they sense there was "too much infringement." The fact that the government also got some of its information through illegal spying may not be enough to counteract the massive gravitational pull of "but... but... infringement."


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