Gordon Campbell on Kim Dotcom’s bail application   24 Jan 2012

Gordon Campbell

 

megaupload shut down by fbi, arrests, assets seized

The Crown is opposing bail for Megaupload CEO Kit Dotcom on the basis of (a) that he poses a flight risk and (b) he could recommence his operations if released. Neither seem to be very convincing arguments. By its very nature, the extradition battle is likely to be a lengthy one and if having money is held to be a decisive factor in being regarded as a flight risk, then bail would have to be denied to almost every white collar criminal who comes before the court.

Are the courts really prepared to keep Dotcom and his colleagues in custody for the entire extradition process? That would be a totally disproportionate infringement of the basic right of accused persons to liberty, until the charges against them are heard and proved. On balance, Dotcom poses neither a threat to society nor – given the presence here of his family, and his residency here – does he seem a likely flight risk.

Similarly, there seems little risk of Megaupload rising from the ashes of the FBI’s “Mega Conspiracy” any time soon. If bailed – and under supervision – Dotcom might even conceivably be able to help the authorities to untangle the entirely legal aspects of Megaupload’s operations, and help return that property to its lawful owners. These owners, as Russell Brown has pointed out, may include the likes of Kanye West, Will i am, Snoop Dogg and other less celebrated citizens whose lawful property will otherwise be frozen indefinitely in Megaupload’s cyberlocker until the charges against him and his colleagues are resolved.

As other commentators (including Salon’s Glen Greenwald) have also noted the FBI-led action against Megaupload was taken barely 24 hours after controversial two anti-piracy pieces of legislation ( the so called SOPA and PIPA bills) backed by entertainment industry lobbyists were withdrawn from the US Congress.

 

Critics insisted that these bills were dangerous because they empowered the U.S. Government, based on mere accusations of piracy and copyright infringement, to shut down websites without any real due process. But just as the celebrations began over the saving of Internet Freedom, something else happened: the U.S. Justice Department not only indicted the owners of one of the world’s largest websites, the file-sharing site Megaupload, but also seized and shut down that site, and also seized or froze millions of dollars of its assets — all based on the unproved accusations, set forth in an indictment, that the site deliberately aided copyright infringement.

In other words, many SOPA opponents were confused and even shocked when they learned that the very power they feared the most in that bill — the power of the U.S. Government to seize and shut down websites based solely on accusations, with no trial — is a power the U.S. Government already possesses and, obviously, is willing and able to exercise even against the world’s largest sites (they have this power thanks to the the 2008 PRO-IP Act pushed by the same industry servants in Congress behind SOPA as well as by forfeiture laws used to seize the property of accused-but-not-convicted drug dealers).

Julian Sanchez at the Cato Institute is also essential background reading on the Dotcom case and his concluding remarks are particularly interesting:

 

This is another reason the takedown-before-trial model is disturbing. Again, there’s strong evidence in the indictment that Megaupload’s conduct here was anything but innocent. But now imagine some other cloud storage site that comes under the crosshairs of the government or content industries. As I suggest above, they might have very good reason for only disabling specific, publicly distributed links to a copyrighted file in response to a takedown notice, rather than cutting off access to every user who has remotely stored the file, regardless of how they’re using it. At a trial, they’d get to explain that. If the site is shut down before its operators have an opportunity to even make the argument … well, that doesn’t bode well for investment in innovative cloud services.

So far, we have seen the New Zealand courts and Police acting in SWAT team-like helicopter raids that clearly show the Police have been consuming too many of the entertainment industry’s fine products, and colluding with the shutdown of this particular website. Megaupload appears to have been singled out partly for the flamboyance of its owners, which serves all the better to deter les autres such as Mediafire and yes, even Youtube itself – whose content remains an untidy mix of legally and illegally uploaded material.

When and if this case ever gets to a US court, Dotcom’s lawyers should have a fine old time arguing why their operation has been singled out for draconian action, when (apparently) the likes of Youtube are able to quietly devise revenue sharing ad content and other ruses that enable it to co-exist (albeit uneasily) with the same entertainment industry that is now baying for Dotcom’s blood. Our own courts should decline to be party to this particular lynch mob. Dotcom should be released on bail, to oppose the extradition, and ultimately if necessary, to prepare his defence against these charges.

As Glenn Greenwald says, this is what is called due process in the US. In times past, the US courts used to adhere to it. Not so much today. In a recent op ed in the Washington Post (headlined “10 Reasons The U.S. Is No Longer The Land of the Free”) law professor Jonathan Turley itemised the excesses of state power that the Bush and Obama administrations have created (and in some cases used) since 9/11.

These include: the assassination of US citizens, indefinite detention, arbitrary justice, warrantless searches, the use of secret evidence, war crimes and torture, the widespread monitoring and surveillance of ordinary citizens, the use of secret courts, immunity from judicial review and extraordinary renditions. Turley’s conclusions are worth reading:

 

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powell confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely.

Frankly, the New Zealand courts should not be serving as a dutiful helpmate of such a system. Dotcom should be bailed.

 

********

 

Add a comment

Bookmark and Share

News

Regeneration the focus of Christchurch governance

2 Jul 2015 Canterbury Earthquake
The regeneration of Christchurch will be the city’s focus for the next five years as local leadership progressively takes... more

Government Welcomes Successful WTO Trade Policy Review

2 Jul 2015 News
Government Welcomes Successful WTO Trade Policy Review Trade Minister Tim Groser today welcomed the conclusions of the 5th World... more

Business

TPP too big to fail, says visiting US trade deal specialist

2 Jul 2015 Business News By Fiona Rotherham
  TPP too big to fail, says visiting US trade deal specialist Petri July 2 (BusinessDesk) - Too much political capital has been... more

MARKET CLOSE: NZ shares gain, led by A2 as bidders named

24 Jun 2015 Business News
Article - BusinessDesk   MARKET CLOSE: NZ shares gain, led by A2 as potential bidder unmasked; dividends appeal By Jonathan ... more

Living

Remarkables ski area to kick off 2015 season this Saturday

24 Jun 2015 Lifestyle
The Remarkables June 24 2015 The Remarkables ski area to kick off 2015 season this Saturday The Remarkables ski area in Queenstown... more

SMCO-SOUNZ Composer Workshop selected works announced

23 Jun 2015 Lifestyle
SOUNZ For immediate release SMCO-SOUNZ Composer Workshop selected works announced SOUNZ and Auckland based St Matthews Chamber... more

Property

Extending Canterbury accommodation support

24 Jun 2015 Property
New Zealand Government Hon Anne Tolley Minister for Social Development 24 June 2015 Extending Canterbury accommodation... more

Arvida to buy three Auckland facilities for $62M

24 Jun 2015 Property
Article - BusinessDesk   Arvida to buy three Auckland facilities for $62M, raising new capital By Paul McBeth June 24 ... more

Migration

NZ migration rises to new annual record in May

22 Jun 2015 Migration By Suze Metherell
  NZ migration rises to new annual record in May, closing in on Treasury's upside scenario June 22 (BusinessDesk) - New Zealand... more

More visas online through Immigration ONLINE

16 Jun 2015 Migration
Immigration Minister Michael Woodhouse welcomes the roll out of online Work and Visitor visas as fantastic news for Immigration New ... more

Travel

Air NZ sees annual earnings rising by as much as 60%

24 Jun 2015 Travel & Tourism
Article - BusinessDesk   Air NZ sees annual earnings rising by as much as 60% By Paul McBeth June 24 (BusinessDesk) - Air New... more

Analysts divided on Jetstar impact on Air NZ's earnings

19 Jun 2015 Travel & Tourism
  Analysts divided on impact on Air NZ's earnings of Jetstar's regional routes challenge June 19 (BusinessDesk) - Analysts are... more

Sport

Wimbledon 2015: NZ Tennis players progress

2 Jul 2015 Sport
Kiwi Artem Sitak braves soaring temperatures and a lengthy battle to make it into the second round of doubles at Wimbledon.Kiwi Davis... more

Silver Ferns Netball World Cup team named

2 Jul 2015 Netball
Netball New Zealand (NNZ) National Selectors have picked a 12-strong Silver Ferns team featuring a mix of youth and experience to... more

Columns

Gordon Campbell on Tiwai Point, and saying “No” in Greece

2 Jul 2015 Opinion
Its hard to see how Rio Tinto’s one month delay in announcing its intentions about the Tiwai Point aluminium smelter is a good... more

Gordon Campbell on telling the poor to ask for more

24 Jun 2015 Column
Column - Gordon Campbell   Gordon Campbell on telling the poor to ask for more The government’s more

Kiwi Success

New Environment Protection Authority (EPA) board appointments

2 Jul 2015 Appointments
New Zealand Government Hon Dr Nick Smith Minister for the Environment New EPA board appointments Environment Minister Dr Nick Smith ... more

New Chair and Commissioners for Maori Language Commission

2 Jul 2015 Appointments
New Chair and Commissioners appointed to the Maori Language Commission The Maori Development Minister is pleased to announce that... more

Recruitment

Carpentry apprentices go head to head

23 Jun 2015 Recruitment
Apprentice of the Year Competition Carpentry apprentices go head to head in national competition Entries for the Registered Master ... more

NZ employees rate work-life balance as top priority

26 May 2015 Press Releases By Anna Lu
  NZ employees rate work-life balance as top priority, while job seekers eye cash, survey shows May 26 (BusinessDesk) - New... more