Dotcom search warrants declared illegal
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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.
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.
Note that I'm not against your point per se, just a small precision.
France should conduct a nuclear test at their embassy in Washington, seeings it's French soil and all.
Such a ruling would also encourage others to do things on the edge of the law because others got away with it. So no, by any means they wanted to put Mr. Dotcom behind bars and keep him there while thousands of his hard drives rot and fall apart.
I believe destroying MU was thrown together mostly haphazardly out of desperation. This is an annoying sideshow for an organization like the FBI. They're doing the bidding of a higher up master, that is doing the bidding of the money in Hollywood.
Seriously, what are you suggesting? That the US assassinates prominent citizens of allied nations inside allied nations for no other reason but to support the business interests of large multinational corporations?
Are we really seen to be such a mafia state as this, now? Honestly, when has this ever happened?
There's many criticisms that can be found for nearly all superpower nations, but I'm not aware of the US having a history of "assassinating citizens". Unless collateral damage is now the same as an "assassination."
Well, I think that's my point. US Foreign policy has always distinguished between its allies and its pseudo-colonies/sphere of influence.
So much for a Golden Age of patriotic, selfless, public servants in the "alphabet soup" of federal agencies.
I doubt they counted on much blow back or much of a fight afterward either, which was part of their miscalculation.
Like John Gotti?
Beating a rap doesn't necessarily discourage police/prosecutors. It often motivates them.
(I assume the OP refers to the Iraq war which was justified with WMD that never were found)
We haven't allowed any naval vessel carrying nuclear material (be it for weapons or power supply) to enter our waters since 1984. It's always been quite a point of contention with the US. It also happens to be a point of pride for the grand majority of Kiwis.
From this, the audio is worth listening to. http://www.nzhistory.net.nz/media/sound/oxford-union-debate
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.
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".
We should never think that prison "should" be the solution for anything. That's the reason there is 4.5 times more persons in prison per capita in US than in NZ [1].
In continental Europe we tend to consider that prison is there as a punishment for really severe things (killings, sexual abuse, severe drug trafficking etc.) OR a way to avoid reiteration. If there is no risk of reiteration and the damage was light, then fines and other non-socially disruptive punishments are better suited.
And your conception that : private citizens always end up in prison so should government representatives, is wrong. If private citizens always end up in prison, then that's a problem that should be solved... not ampliated by putting more people behind the bars. Your vision almost sounds to me like a bitter revenge : "Hiii, we pooooor citizens always go to jail, they should taste their own medicine". No, the least prison, the better.
The best example of this is your terrible transformation of an important Judicial principle. You wrote : « Better a few government employees behind bars "unfairly" than more than a few citizens behind bars "unfairly". »
Dude. Read yourself. There is no way, people behind the bars unfairly is better than anything. It's the wrost thing. Remember the Blackstone Principle : "better that ten guilty persons escape than that one innocent suffer".
And finally, do not forget that police is by essence making mistakes, it's impossible not to do, because they do something called investigation. If they were only to act in full certainty, then they would almost never act. They gather data and facts about a possible crime, and they have to use force to do that, and then they send all of this to a judge who will decide if there is enough to effectively find someone guilty or not. What you are asking for, is that police only act when they're so certain of the guilt that there is almost no need anymore for a trial. The judicial system cannot work like that. You must allow police force to make mistakes... or we're going to end up with police acting like Judge Dredd.
Which by the way does not mean there is not going to be any punishment, and if they do some really grave trespassing, then they might even end up in prison. It's a question of scale.
[1] http://www.nationmaster.com/graph/cri_pri_per_cap-crime-pris...
It's because in the US, prisons are a business venture.
http://www.huffingtonpost.com/2012/02/14/private-prisons-buy...
"Corrections Corporation of America, the nation's largest operator of for-profit prisons, has sent letters recently to 48 states offering to buy up their prisons as a remedy for "challenging corrections budgets." In exchange, the company is asking for a 20-year management contract, plus _an assurance that the prison would remain at least 90 percent full_"
Non-monetary punishments would be warranted for abuses of police power, because they threaten the social contract, which brings them within the purview of criminal law (not to say there isn't a civil case as well).
Abuses of the judicial system are precisely what I have in mind when discussing this topic: when the response to such an abuse is -- at best -- a fine paid by the public, why should such abuses stop?
To quote @yakmoose: I am glad our (New Zealand's) judiciary still functions. even if our police don't.
"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."
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.
That bit reads like someone wrote up a search warrant after watching a few episodes of CSI: Miami.
It's enormously irritating.
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.
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.
Edit: Now the title has been updated, previously it was: <Dotcom searches declared illegal (judgment full text)>