Kim Dotcom is challenging the warrants used to seize his
fortune in new court documents, which accuse the FBI of
double-crossing his Megaupload company.
The new court filing says the courts need to examine closely
the evidence submitted by the FBI when it sought seizure
warrants as part of its investigation into Megaupload.
It pointed to a "pattern of governmental misconduct plaguing
proceedings" in New Zealand, and said the FBI secured
judicial backing to go after Megaupload by misrepresenting
help the file-sharing company had given during the
investigation into an internet pirate.
"This is huge," Dotcom tweeted, announcing the filing. It was
proof of the "US government acting in bad faith" and the
Department of Justice "misleading".
Dotcom and three colleagues are facing extradition to the US
on charges of criminal copyright violation, which they deny.
The claim of dishonesty hinges on testimony given by the FBI
of Megaupload knowingly acting as a haven for illegally
copied movies. The testimony was given a year ago in hearings
which saw warrants issued for Dotcom and his business
Details released from US courts in November showed the FBI
relied on the existence of 36 illegally-copied movies as
evidence of wilful law-breaking. The FBI told the US courts
Megaupload had been told of the illegal files in 2010, and
the continued existence was evidence to flagrant criminality.
However, Dotcom's lawyers said the files were kept at the
request of the US government, which asked it do nothing to
impact on its criminal investigation. They claimed FBI
testimony to secure arrest warrants managed to "exclude
critical facts" which would have shown the company's efforts
Instead, they gave a "selective distorted account" and
"deliberately misled the court".
The filing says Megaupload was painted by the FBI as a
"brazen scofflaw" and the files were the only linking thread
which tied together those described by the FBI as the "Mega
It also pointed to other court cases which showed warrants
being declared invalid if the applicant - in this case the
FBI - was shown to be dishonest or reckless.
The help sought in 2010 related to a Homeland Security
investigation into NinjaVideo, a file-sharing site which used
Megaupload's system to store files. An agent on the case
contacted Megaupload's data storage company Carpathia to ask
for help securing the files. Megaupload was told not to alter
or change the files - a detail not later mentioned by the
Dotcom's lawyers pointed to an email between Carpathia and
Megaupload from 2010 as capturing the reality. The email,
from Carpathia executive Phil Hedlund, detailed the search
warrant issued to capture the NinjaVideo material.
Mr Hedlund said the warrant was restricted to just Carpathia
and Megaupload but would be otherwise kept secret. He said it
was possible to do so "because we relayed to the Government
Mega's willingness to work with the Government for these
types of requests". He added: "We have no reason to believe
Megaupload is the target of the investigation."
The Weekend Herald revealed the details around the so-called
double-cross in November when the first US court files were
unsealed. Dotcom, waiting on the US to comply with NZ court
orders for discovery, said: "I understand why the US is
working so hard to appeal the discovery decision."
He said Megaupload worked hard to comply with requests to
remove unlawful material. "We have always co-operated. We
have responded to takedown requests, we have been a good
- By David Fisher of the NZ Herald