FBI Used FedEx To Sneak Dotcom's Hard Drives Out of NZ

First time accepted submitter bpkiwi writes "FBI agents, working with New Zealand police on the Megaupload case, took a copy of Kim Dotcom's hard drives and then immediately sneaked out of the police facility and FedEx'ed them back to the USA. Despite the fact that removal of evidence in this manner without official approval (and a chance for the defendant to challenge it) appears to be illegal, the New Zealand government is now left arguing on a technicality — that the law only covers 'physical' items." Things got slightly better for Megaupload users trying to get their files back today. In a court filing the MPAA said users can have their files back as long as access to copyrighted files is blocked. “The MPAA Members are sympathetic to legitimate users who may have relied on Megaupload to store their legitimately acquired or created data, although the Megaupload terms of use clearly disclaimed any guarantee of continued access to uploaded materials,” MPAA lawyers write.

Comments

Wait, what?

[_KiTA_]

Wait, the MPAA is claiming the Megaupload EULA/TOS as a reason why people shouldn't get their data back? That's kinda a dick move.

Also, if I was the NZ government, I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

Re:Wait, what?

[f3rret]

: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

To which the answer would be something like : "Because we're a hideously rich gigantic corporation operating out of your lord and master the US, suck it Kiwis."

Re:Wait, what?

[russotto]

Also, if I was the NZ government, I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

How would FedEx know? You may as well blame Level 3 for illegal export of bits.

Re:Wait, what?

[WrongSizeGlass]

Wait, the MPAA is claiming the Megaupload EULA/TOS as a reason why people shouldn't get their data back? That's kinda a dick move.

I'm sure that the MPAA also wants some type of payment for all those illegal copies the FBI stole and shuttled out of NZ.

Re:Wait, what?

[Anonymous Coward]

FedEx only shipped a box - it's hard to imagine they knew the exact contents.

Also, isn't there a judge in this case? Why the F*** is the MPAA sympathetic to anything?
It's not in their realm or authority to limit users to their legitimate data, and acting in this
manner will only garnish more distrust for them. It's not by the grace of MPAA, but the execution
of legal principles.

CAPTCHA = waived

Re:Wait, what?

[Dishevel]

I would be asking FedEx some pretty hard questions. Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

WTF?

So you want FedEx prosecuted in every country for millions of crimes?
You seriously want to bust FedEx because they were the shipper?
Sure why blame the people shipping shit out of a country illegally when you can just bring down the hammer on FedEx.
How did you get an insightful mod with that crap in there?
You prosecute the agents or you penalize the country. You don't go after FedEx or UPS or DHL because the agents used them as a shipper.
Should FedEx have asked if the hard drives were stolen evidence? Do you think that should be one of the check boxes on the shipping form?
I can not fathom how it is possible for you to say that and be smart enough to type. I can only come to the conclusion that you put no thought whatsoever into any part of the drivel that spewed froth from your keyboard.
Next time think about what it is you are saying before you hit submit.

Re:Wait, what?

[stephanruby]

Like: "Considering that you helped a foreign power conspire to break NZ law, why should we allow you to continue to work in our country?"

I can imagine FedEx's response.

"What are you suggesting? That we open every FedEx package we ship out? To check against some kind of real-time up-to-second list provided by the police department for what's already in their evidence locker?

What happens if we don't do that? Are you going to arrest us and freeze all our assets too? Wouldn't it be easier to just put a lock on your evidence locker and carefully vet/punish the people who took out the evidence in the first place? Or at least punish/fire/jail the people who gave them access to that locker? "

Re:Wait, what?

[shutdown -p now]

NZ already had a pissing match with USA when they banned US vessels that were either nuclear powered or carrying nuclear weapons from entering their waters. That's still in force today, as are the measures US had taken in response.

Re:Wait, what?

[reve_etrange]

The last section of the ANZUS article states that the US and NZ have resumed military cooperation, without NZ having to lift its port ban of nuclear vessels.

Re:Wait, what?

[Dodgy G33za]

The MPAA want to make me and my ISP responsible for what goes across my Internet connection. How is this different from the FedEx example exactly?

And just for the record, I think both are absurb.

However, if I were a customer of megaupload who had copyright material on their servers, I would like to be putting a case for copyright infringement of my work by the FBI in NZ, since they have no legal authority in that jurisdication. And if they have returned to the US after breaking the law, well, NZ will just have to put in a extradition request.

Re:Wait, what?

[Zenin]

FedEx only shipped a box - it's hard to imagine they knew the exact contents.

The same could be said for Megaupload's entire site...

Physical items?

[Nidi62]

So then what are the hard drives made of if they are not physical?

Re:Physical items?

[Anonymous Coward]

So then what are the hard drives made of if they are not physical?

Oh, it's funnier than that.

From TFA:

"FBI agents who copied data from Megaupload founder Kim Dotcom's computers and took it overseas were not acting illegally because information isn't "physical material", the Crown says."

Copying information is theft when MPAA says it is, but copying information is not theft when the NZ Feds, acting on FBI's behalf, who themselves were acting on MPAA's behalf, say it isn't!

Re:Physical items?

[ClioCJS]

They didn't take the harddrives, they took the copied files. Understand your enemy.

Re:Physical items?

[Anonymous Coward]

Ah, so making a copy isn't stealing? :P

Re:Physical items?

[Anonymous Coward]

We poke fun at rich people for hypocrisy like this. And yet....they get away with it...

Re:Physical items?

[lightknight]

I find this irony particularly delicious.

Re:Physical items?

[mug funky]

RTFA. the FBI had no permission from anybody concerned, much less the actual owner of the hard drives! the man doesn't forfeit property rights by being arrested.

Re:Physical items?

[kiwirob]

Yeah that "fair use" you talk of only applies under US jurisdiction. Here in New Zealand we are a separate country and we have our own laws. So your American FBI can not just come over here and apply your own set of rules in our sovereign country thank you!!

The FBI broke a court order in NZ that stipulated that a further hearing would be required to decide if the FBI where going to be given access at all. They just copied and stole the information without even the NZ Police knowing what they where doing.

Re:Physical items?

[Anaerin]

If the content on the hard-drive was original work in any way, it's copyright is automatically legally owned by, and remains with, the creators (As laid out in the Berne Convention), unless they somehow disown or reassign copyright on those items (though a recording or publishing contract, or any other kind of license, for example). Uploading works (files) to a locker site is not disowning copyright, it is merely granting an exclusive license for the locker site to hold (and potentially "transform") them, not a right to distribute those works to third parties (unless said third parties are explicitly granted access). Thus, the New Zealand Police and FBI (And potentially the MPAA/RIAA as well) are guilty of illegally copying copyrighted works without a license, thus infringing on the copyrights of all the users of MegaUpload.

Therefore, in one fell swoop, the FBI are immediately guilty of 1+ Billion cases of Copyright Infringement, assuming every registered user of MegaUpload uploaded only one original work. If, for some reason, they are not, then neither are the users of MegaUpload guilty, for exactly the same reasons.

Should be interesting to see the US Government wiggle their way out of that one, to be sure.

Re:Physical items?

[0111 1110]

You are correct. If you can prove it. Not just that he broke into your house, but that he had no "valid" reason to do so. Keeping in mind that whatever he says is presumed to be true by nearly all judges and most juries and whatever you say (assuming he let you live) is presumed to be a desperate lie to save yourself from going to jail. If you weren't alone your friend/roomate/girlfriend will be considered biased and lying for you. The only way to beat a lying cop is to catch it on video and not let the video get confiscated. Or be lucky enough to have the event witnessed by someone you don't know and can later find to testify on your behalf. That still is no guarantee because the cop will have buddies who are also willing to testify to his version of events.

Re:Physical items?

[Mal-2]

When dealing with the U.S. legal system, yes he did.

Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove on a "preponderance of the evidence" that it is not. The owner need not be judged guilty of any crime.

Yeah, it's that fucked up.

If a private individual tried this

[Scareduck]

it would be tortious interference of contract, but because they've bought themselves criminalization of copyright violations, we now have the FBI chasing halfway around the world for stuff like this. Great going, FBI!

Re:If a private individual tried this

[Anonymous Coward]

here in the united states of skullduggery we DO have something called the chain of custody. by obtaining the materials outside of what is legally acceptable they have violated the chain of custody, and by using a non governmental agency without judicial oversight they have violated the chain of custody. this SHOULD, according to US law, make the hard drives inadmissible as evidence in court proceedings.

Re:If a private individual tried this

[philip.paradis]

Law enforcement agencies and cooperating entities send evidence via FedEx all the time. It's an accepted mode of transit. As for chain of custody, sorry, you're wrong there too, as long as it was properly documented. As for legally acceptable means of obtaining the materials (in this case, copies of data stored on hard drives, presumably bit-for-bit images of the drive contents), well, they're federal agents who I'm sure signed affidavits attesting to the means utilized to create the copies. Whether or not NZ decides it was okay is up to NZ, but will probably have little to no effect on proceedings in the US.

Now, on to the really important point. Where did you get your legal and/or law enforcement experience? I suspect it may have been a crackerjack box. Sorry, old episodes of Law and Order don't count.

Re:If a private individual tried this

[TheGratefulNet]

Sorry, old episodes of Law and Order don't count.

are the more recent ones, ok, then?

*snark*

Re:If a private individual tried this

[sed quid in infernos]

First, chain of custody refers to the ability to prove that the materials presented in court were seized by the police at a particular time and place. It is different from the question of whether the means to seize the evidence or move it from one country to another is legal. If someone can attest to the movement of the evidence, then chain of custody is satisfied, even if normal procedures are not followed. Of course, if normal procedures are not followed, then the defense can put that before the finder of fact and argue the evidence is unreliable. But to be admissible, it is only necessary that the prosecution offer evidence to show where and when a particular item was seized.

Moreover, even if the chain of custody was broken, fruit of the poisonous tree would not apply to derivative evidence unless the same chain of custody problem infected that new evidence. So, for example, if chain of custody problems keep a gun from being used, it is still possible in many situations to admit evidence seized under a warrant for which probable cause is supported by that gun. Not always - some chain of custody problems would quash the warrant - but there are many situations where the gun would out but fruits of the warrant would be in.

Re:If a private individual tried this

[rtb61]

Hate to bust your bubble buddy but American police as far a New Zealand or any other countries laws are concerned are nothing but bloody tourists. It is illegal to hand over evidence to visting tourists and let them take it out of the country. It even gets more stupid, users can have their files back as long as access to copyrighted files is blocked, WTF! Just because I am not an American and not a member of the RIAA/MPAA/Obama Justice Department club for pigopolists all of a sudden my work is no longer protected by copyright, talk about bullshit. All that work on those drives is protected by copyright, so what the fuck are they talking about, just because a bunch of out of control Fucking Bloody Idiot tourists stole a copy infringing other peoples copyrights doesn't mean that work now permanently loses copyright protection.

Another CEO that needs to be Guillotined

[cpu6502]

When the revolution comes, MPAA's CEO and the managers under him should be in the line for beheading. (Or we could just pass a constitutional amendment that corporations don't have human rights and are not a fictional "person" under the law.)

Dodgy dealings

[josh_nz]

This article puts quite a different spin on it, http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10811266 From the article: "He said he had contacted the agents to offer to take clones of the items to the United States Embassy only to find they had already sent the clones to the US." Sounds like the NZ cops were going to give it to the FBI but the FBI wasn't waiting from permission anyway.

FedEx filters

[Smiddi]

FedEx aided in copying data illegally. FedEx should have filters in place blocking any illegal items (or data) from passing through their services, thus stopping companies and people from breaking the law. /SARCASM

US Behaviour

[ThePeices]

I remember when the prosecution was opposing Kim's bail application, the reasoning for their opposition being that Kim would flee the country, being the dishonest rich person he is.

He never did.

And now the prosecution were caught doing unethical and illegal behavior.

Who are the dishonest ones here? Who are the criminals blatantly breaking the law?

Unsurprisingly, the majority of the NZ population side with Kim Dotcom throughout this entire farce.

NOT "copyrighted files"

[ffflala]

...because all copyrightable material is under copyright from the moment of its creation. That would include all original works, all writings, etc... they're copyrighted, and the creator owns the copyright.

What MPAA wants to disallow is in bold...

"If the Court is willing to consider allowing access for users such as Mr. Goodwin to allow retrieval of files, it is essential that the mechanism include a procedure that ensures that any materials the users access and copy or download are not files that have been illegally uploaded to their accounts."

To that, I'll add "allegedly illegally uploaded." The court as a finder of law can't determine that the files were illegally uploaded; a finder of fact (jury) needs to do that.