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Could technicalities de-rail MegaUpload case?

By | Published on Monday 23 April 2012


The criminal case against MegaUpload might never get a hearing in court, because the company itself has never been served with criminal papers in the US, very possibly because it can’t be.

This issue was discussed in an American court last week, with the judge overseeing the hearing (which was actually about what to do with all that offline Mega data) remarking that “I frankly don’t know that we are ever going to have a trial in this matter”.

According to the New Zealand Herald, Judge Liam O’Grady asked why the FBI hadn’t served the Mega company with any criminal papers during a discussion on what to do with the legitimate (ie non-copyright infringing) data stored on the former Mega servers, which were rented from an American company, and which were taken offline by US authorities back in January.

It was because the bulk of the content made available via the various Mega websites was stored on servers housed in the US that the American authorities were able to swoop in such a dramatic fashion, taking the Mega enterprise offline without warning.

But the Mega company had no official base in America, making it hard to actually hand a representative of the business any formal criminal proceedings. And the failure to hand over any such papers to an official representative could, O’Grady said last week, prevent any criminal case against the company from going ahead.

So why doesn’t the FBI just find a Mega office somewhere else in the world – company is incorporated in Hong Kong – fly out there and hand over the required paperwork? Well, according to Mega’s attorney, Ira Rothken, that wouldn’t work either, because the US authorities can’t pursue corporate criminal proceedings outside the jurisdiction of the United States. Civil proceedings could be filed anywhere in the world, and individuals can be charged in any country where extradition agreements allow, but a company cannot be charged under the American criminal law abroad.

Or so reckons Rothken. There does seem to be some confusion as to exactly how things should work here, but Mega’s attorney seems to think this is a big enough technicality to de-rail the American authorities’ entire case. Which would, O’Grady noted, make the whole debate over the Mega data irrelevant, because the feds might be forced to had back the server keys (as it were) to the rogue file-transfer firm.

Of course the seven Mega executives can still be charged individually for their part in running the allegedly criminal enterprise, though Rothken has another technicality to throw into the mix there too. He says that without the criminal case against the company, the only charges the US can fire at the Mega directors individually is copyright infringement, which has a maximum four year jail term in the States. And under the US’s extradition agreement with New Zealand only people accused of crimes that carry a five year jail term or more can be extradited.

American authorities are expected to say the Mega bosses, including founder Kim ‘Dotcom’ Schmitz, should be extradited as a member of an organised criminal group, a crime which carries the all important five year jail term. But it remains to be seen if that washes.

The legal wrangling continues.