New Zealand Judge Won't Rubberstamp Kim Dotcom Extradition; Orders US To Share Evidence
from the not-so-easy dept
Once again, it appears that the US prosecution of Kim Dotcom and the other Megaupload folks suggests that US federal prosecutors have been acting like they have a slam dunk case, whereas every time anyone digs into the details, all of the important infrastructure is missing. The latest is that the US seemed to assume that as long as they kept going on and on about the “mega conspiracy” and the “money laundering” involved (even if that “laundering” appeared to be normal payments to service providers), that New Zealand would rubber stamp the extradition request without reviewing any of the evidence.
No such luck.
The New Zealand judge is raising significant questions about the US’s case while also ordering the US government to provide copies of the evidence it is using to Dotcom’s lawyers — something the US insisted was not necessary. What’s clear is that the US really thought that New Zealand would just roll over and hand over Dotcom because they sprinkled the indictment with scary phrases like money laundering and conspiracy. But, as the judge notes, the US seems to be taking a somewhat extraordinary interpretation of copyright infringement — using civil copyright infringement as the basis for a criminal copyright charge… and then pumping up that criminal copyright charge into conspiracy and money laundering charges. And that’s important, because New Zealand won’t extradite someone if the case is really just about copyright infringement.
The distinction between civil and criminal copyright infringement is an important one — and confusion over this point is one that the US government has been relying on in seizing various domain names for the past couple of years. It’s good to see that the judge here was not at all confused by this, and seemed to get to the heart of the matter pretty quickly.
As I have already observed this is a case that is more complex than many. There is a complex factual matrix and the justiciable issues are complicated by the fact that the United States is attempting to utilise concepts from the civil copyright context as a basis for application of criminal copyright liability which necessitates a consideration of principles such as the dual use of technology or what they be described as significant non infringing uses.
The existence of criminal copyright charges is a keystone to providing the unlawful conduct element of the racketeering, money laundering and wire fraud charges…
Separately, the judge was not at all persuaded that it would be too difficult to do discovery for the extradition phase of this case, because the evidence is all in electronic form. Yes, the US argued that going through a discovery process to share evidence with Dotcom and his lawyers would be too difficult. But the judge is having none of that:
During the course of arguments the issue was raised as to the difficulty of effecting disclosure given that so much material is in electronic format. During the course of argument I reminded counsel of recent amendments to the High Court Rules relating to electronic disclosure and what is a widespread and growing practice of the use of computer equipment and specialised search techniques to swiftly recover relevant material, to eliminate irrelevant or repetitive material and to utilise a number of search techniques including keynote searching, concept searching, clustering technology, predictive coding or document prioritising technology, email threading and near duplicate identification. It may not be necessary under the circumstances to engage, at this stage of the process, in native file review but there are procedures available and that are utilised within the civil arena that will enable the prompt disclosure of relevant information.
Perhaps I’m mis-translating my New Zealand, but I sense a certain hint of sarcasm in that statement. The US government is really claiming that finding the relevant documents for disclosure is too difficult because it’s in electronic format? Really? Thankfully, it appears that the judge in New Zealand isn’t as technologically clueless as US prosecutors expected him to be.