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Dotcom Wins Right To Sue NZ Government
An anonymous reader writes "A Court of Appeal judgement released today has ruled in favor of Kim Dotcom and will let him sue the Government Communications Security Bureau (GCSB) alongside New Zealand Police. During the High Court case, it emerged that the GCSB had been illegally spying on Dotcom prior to the raid on his Coatesville mansion, on behalf of the FBI, who now wants the Megaupload millionaire extradited to face trial in the US over copyright infringements."
Apropos of nothing at all, I was fortunate to have a client drive me past Kim Dotcoms mansion in a fashionably distant and hilly area North of Auckland a little while ago. It was, he said with evident disdain, a "rented mansion". I've no idea how true that is.
The main gate over which heavily armed special forces apparently had to pass, is barely a metre high, and surrounded by... no fence at all.
When did we start to allow police forces in Western countries start to behave like militias?
I'd like to say that unlike most of you (most of you who post, anyway), I am, in a broad brush "against" mega. The test of copyright infringement in all countries in not a simple yes/no, but rather depends on things like intent, amount of material involved, for profitness, etc. And, when put against such tests, it is clear that megaupload's entire business model was as a facilitator of copyright infringing materials. I don't think there's any legitimate claim for him to be a "common carrier" as an impartial ISP. I agree with the takedown of his site and the seizure of his ill-gotten gains.
HOWEVER
If you read the wiki page on mega, specifically the "basis of indictment" bullet points, what strikes me is this: the exact same list can easily be levied against youtube, which I content is also a business, like megaupload, fundamentally built upon copyright infringement. YouTube is slightly more clever in that they attract non-infringing users to better mask their infringing activities, but still fundamentally the vast bulk of youtube advertising dollars come from showing copyright infringing content. Like megaupload, it has as kiddy-pron filter that works and yet while the same filter could be trivially tweaked or built upon to block at least a good portion of blatantly infringing content, it is not. Furthermore, both youtube and mega technically claim to be DMCA-takedown compliant, but both make legitimate rightsholders go through the maximal numbers of hoops to submit claims AND have trivial mechanisms for replacement of taken-down content (in mega's case, the 'link' system, in youtube's case, users just create another logon and re-upload).
So, if there's one thing REALLY wrong with this case, it's not relatively small prosecutorial oversteps in going after mega. rather, it's the unequalness where mega was procecuted but youtube allows to steam on. do a youtube search for 'full movie' to see how bad it is. we all know that we can find more or less whatever we want on youtube, plus or minus a few recent items from popular/current shows where the rightsholders actively police youtube (like the latest family guy episodes).
in all cases, it is the creators of content, the very people that we should protect the most, that get screwed.
The government has basically ruined their ability and right to prosecute him by illegal and ridiculous behaviour. Is he a bad guy? probably. Does he deserve to have his basic freedoms respected? Ya, just like anyone else.
Like other cases where a person's legal rights are infringed by investigators (and prosecutors), dotcom deserves to go free and the evidence used against him stricken. That's the only way to ensure that the same tactics won't be used again and again against people.
Kim Dotcom is no hero, but the government is definitely the villain of the piece, and their actions have led to Kim Dotcom's credibility (ha!) in this case.
I would prefer if illegal evidence garthering was punished like any other crime, but the evidence garthered could still used. Jail time would be a more powerful deterrent than havibg your evidence thrown out. However, I have no confidence that the guilty cops would receive justice, so perhaps your suggestion works better in practice.
But that is not why the OP was calling NZ western. He/she did it because it has a similar culture to the US, as if that makes it a better country in terms of human rights.
There was a time when it did mean that. Ask your grandparents or your oldest living relative about that, maybe they will be old enough to remember. It was definitely a long time ago. Now we in the "Western nations" do the very same things we used to look down on "Communist" countries for doing. That includes things like imprisonment without trial, secret FISA courts, summary executions of citizens, etc.
It is a miracle that curiosity survives formal education. - Einstein
Like other cases where a person's legal rights are infringed by investigators (and prosecutors), dotcom deserves to go free and the evidence used against him stricken. That's the only way to ensure that the same tactics won't be used again and again against people.
If the U.S. Constitution were still in effect, this egregious misconduct would get the perp freed at arraignment, if not cancelling the embarrassment of extradition. L'esprit deLoi of our Constitution is as guidelines for just and effective government, with primacy given toward protecting the citizen from the state.
The problem is - who should be punished for gathering the illegally obtained evidence?
The policemen who physically gathered the evidence?
The lawyers who signed off on the gathering?
The officers who signed off on the gathering?
The politicians who pushed for a case to be made?
All the policemen who were involved with the case?
It's a tricky situation, because what is to prevent A from getting B to take the possible fall, by telling B to go pick that thing up?
What I'd like to see is somewhat similar, but with clear lines of responsibility.
The prosecutor in charge of the case is held in contempt of court for 10% of the maximum penalty possible for the crimes, but no less than 7 days (no pay etc), plus a fine equalling twice the salary that would have been earned in the time. Same for the lead officer/detective on the case.
The prosecutor's boss (DA/AG etc) gets 5%, but no less than 7 days (no pay etc), similar fine. Same for the similar position in the police's ranks.
Any public officials who have provably pushed for the case, gets 3%, but no less than 7 days (no pay etc), similar fine.
Not sure what kind of punishment would be fitting for the policemen, CSI techs etc. who gathered the illegal evidence though. If they planted evidence or gathered it in knowingly illegal ways, they should obviously go to jail, but the problem comes when they gather evidence in good faith, that later turns out to be illegal. I don't want to punish them for simply doing their job in good faith.