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Kim Dotcom goes to US Supreme Court to fight his ‘fugitive’ status

By | Published on Wednesday 12 April 2017

Kim Dotcom

The ongoing debate over whether or not we should put MegaUpload’s Kim Dotcom in the big pile with all the other fugitives continues. The founder of the often controversial one-time file-transfer platform is now petitioning the US Supreme Court over his classification as a ‘fugitive’ by the American authorities. It’s an important classification, because it’s being used to stop Dotcom from reclaiming millions in seized assets and funds.

As much previously reported, in early 2012 the US authorities shutdown MegaUpload on copyright infringement grounds, requesting that Dotcom and a number of his then colleagues in New Zealand, and elsewhere, be arrested, while also seizing most of the company’s assets.

All sorts of legal wrangling has since taken place around the MegaUpload case, with the US still to successfully extradite Dotcom et al to face criminal copyright and other charges in the American courts. One strand of that legal wrangling has been Dotcom’s efforts to reclaim some or all of the assets and funds seized back in 2012.

Last year the US Fourth Circuit Court Of Appeal backed a lower court ruling saying that Dotcom should not be reconnected to those assets, mainly because they consider the former MegaUpload chief a fugitive. But Dotcom’s lawyer hit back at that argument, saying that his client wasn’t a ‘fugitive’, but was exercising his legal right to fight extradition to the US.

Speaking to Reuters at the time, lawyer Ira Rothken said: “This opinion has the effect of eviscerating Kim Dotcom’s treaty rights by saying if you lawfully oppose extradition in New Zealand, the US will still call you a fugitive and take all of your assets. We think it’s American imperialism at its best, and we’re hoping the Supreme Court or the larger court circuit will see it for what it is, and reverse it”.

In their new petition to the US Supreme Court, filed last week, Team MegaUpload argue that the decision to stop Dotcom et al from reclaiming their assets because of so called “fugitive disentitlement” sets a dangerous precedent, in that it allows American authorities to seize the assets of foreign nationals on the basis of as yet unproven claims.

The legal filing says: “If left undisturbed, the Fourth Circuit’s decision enables the government to obtain civil forfeiture of every penny of a foreign citizen’s foreign assets based on unproven allegations of the most novel, dubious United States crimes”.

It goes on: “The government can do so without affording a foreign defendant any opportunity to challenge in court whether the foreign assets are traceable to criminal conduct, whether the government’s allegations are sufficient to establish the charged crime, or even whether the charged ‘crime’ is a crime at all”.

The lawyers conclude: “In sum, this case poses questions that have divided the lower courts and carry important implications for federal jurisdiction, constitutional law, statutory interpretation, civil procedure, and international relations”.

It remains to be seen if the Supreme Court takes the case and, if so, how it rules.