(Dotcom and) Ortmann v The United States of America

High Court media release on a judgment on the extradition of Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato to the United States.


Result

In a judgment released today the High Court has confirmed that Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato (the appellants) are eligible for extradition under section 24 of the Extradition Act 1999.

The United States Government has been seeking the appellants’ extradition to face trial on 13 counts including allegations of conspiracy to commit racketeering; copyright infringement; money laundering and wire fraud since 2012.

The High Court has found that the District Court decision in December 2015 finding that the appellants are eligible for extradition was flawed but that the errors in the judgment were immaterial because there are available pathways for extradition on each count.

The key legal questions

In extradition proceedings the primary role of the Court is to determine whether the requested persons are eligible for surrender in relation to the offences for which surrender is sought. Broadly speaking, this requires the Court to follow a two-step approach.

First, the Court must be satisfied that the alleged conduct constituting the essence of the offence for which surrender is sought correlates to an “extradition offence”. In this case, because there is an extradition treaty, this will depend on whether the conduct correlates to an offence listed in the NZ-US Treaty or deemed to be listed in it by the Extradition Act.

Second, if the Court is satisfied that the offences for which surrender is sought are extradition offences, it must then determine whether the evidence relied on by the requesting State (the US) is sufficient to justify a trial if the offence had been committed in New Zealand. This is what is commonly referred to as a prima facie case – is there sufficient evidence for a properly directed to jury to convict?

Contents of the judgment

The essence of the United States’ case is that the appellants, as officers of Megaupload, were party to a conspiracy to profit from copyright infringement by users of Megaupload’s services.

One of the central issues in the case is whether copyright infringement by digital online communication of copyright protected works to members of the public is a criminal offence in New Zealand under the Copyright Act. The High Court has held that it is not, contrary to the conclusion reached in the District Court. The appellants have therefore succeeded with one of the main planks of their case.

However, the High Court has found that a conspiracy to commit copyright infringement amounts to a conspiracy to defraud and is therefore an extradition offence listed in the USNZ Treaty. Further, other extradition pathways are available for all counts because of their correlation to a number of serious crimes in the Crimes Act. These offences are deemed to be listed in the Treaty by a provision in the Extradition Act, subject to various criteria being met.

The High Court has confirmed the conclusion reached by the District Court that the evidence relied on by the United States for the purposes of extradition does satisfy the prima facie case test against each appellant on each count. The High Court has also confirmed that the District Court was correct to dismiss the appellants’ applications for a permanent stay of the extradition proceedings for alleged abuse of process.

Decision

The District Court judgment finding that the appellants are eligible for surrender to the United States on all counts in the indictment is confirmed.


The full High Court judgment is here: Ortmann v The United States of America

Dotcom and co eligible for extradition

Judge Dawson today ruled that Kim Dotcom and co-accused Mathias Ortmann, Bram van der Kolk and Finn Batato are all eligible for extradition to the US.

NZ Herald: Kim Dotcom loses extradition battle, appeal made

Judge Dawson agreed there was an “overwhelming preponderance of evidence” that there was a case for the quartet to answer.

This doesn’t surprise me. Neither does it surprise me that one of Dotcom’s lawyer’s has already indicated they will appeal. This can only be on points of law dealt with by the District Court Judge.

The Herald also has a useful Kim Dotcom: What you need to know.

And also more detail: The Big Read: Dotcom determined to stay

And for the most over the top reaction I’ve seen so far, Martyn Bradbury at The Daily Blog:

BREAKING – 5 Eyes win! Dotcom to be extradited to America

The 5 Eyes have won – American jurisdiction into cyberspace has been established.

Kim Dotcom is to be extradited to America where, without his wealth, he will face the full force of the State. He will appeal this afternoon.

The schadenfreude being displayed by so many on Twitter at Dotcom being renditioned to America is ugly.

NZ – a CIA client state – has done the dirty work for America and allowed corporate Hollywood the ability to claim sovereignty online.

And Cameron Slater is in full bore schadenfreude at Whale Oil –  KIM SCHMITZ / KIM TIM JIM VESTOR / KIMBLE / BILLY BIGSTEPS / KIM DOTCOM- THE VERDICT: EXTRADITION – where he tries to claim he was a lone voice critical of Dotcom:

Whaleoil was a lone voice for a long time before the scales fell from the eyes of people drunk on his money and extroversion.  He’s rotten to the core.  We had the inside information, but it took a long time for people to choose to see.

I don’t recall Slater having anything to do with the investigation, the arrest or the extradition proceedings.

As Slater has admitted, he’s big on embellishment.

This attempt to extradite will be ongoing, probably for years before he finally knows whether he has to face charges in the US or not.

Conclusion

[698] This eligibility Court has received an extraordinarily large volume of material to consider, and the hearing took over 9 weeks before completion. The parties were informed by this Court that all matters relevant to this eligibility hearing would be heard at the hearing and decisions would issue accordingly. At the end of the hearing, all parties confirmed to this Court that none of them had any further issues they wished to raise. [699] Given the very large volume of material presented during the hearing it is not possible to issue decisions that would be less than encyclopaedic in length in order to cover every minor point alluded to in the hearing. There is no need to do this. Much of the material presented to this Court has not been relevant to an eligibility hearing and a number of the submissions were unsupported by appropriately sworn evidence. They do not come near to undermining the applicant’s case or point to a breach of the duty of candour and good faith. If some aspects of the parties submissions or evidence has not been referred to in this judgment that is because it was not relevant to the decision given.

[700] The overwhelming preponderance of evidence produced by the applicant in the ROC and the SROC establishes a prima facie case to answer for all respondents on each of the counts. 271

[701] Pursuant to s 24(1) this Court finds that the respondents are all eligible for surrender on all thirteen counts in the superseding indictment

The full court decision: http://www.courtsofnz.govt.nz/cases/united-states-of-america-v-dotcom-and-ors/at_download/fileDecision

 

 

Dotcom decision due

A decision on the extradition of Kim Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato will be delivered tomorrow (Wednesday).

USA v Dotcom & Ors decision will be delivered tomorrow Wed 23 Dec by DC Judge Dawson

After that it will go to Justice Minister Amy Adams who will decide if the extradition will go ahead.

Early last year I asked then Justice Minister Judith Collins how many extradition requests were considered ( 22 in three years) and how often  requests were refused (none in three years).

See Extradition requests made and refused – and Collins explains how the process works.

For requests from most countries, once the court has determined an individual is eligible for surrender, the matter is referred to me, as Minister of Justice, for the final decision on the surrender. As Minister I decide whether to issue a surrender order, taking into account humanitarian considerations and other factors contained in the Extradition Act.

After that there are still a couple of avenues for appeal after that.

In very strange coverage NZ Herald, in Kim Dotcom court decision coming tomorrow said:

Embedded image permalink

They have since removed the Merry Christmas quip, but not before Dotcom justifiably complained about it on Twitter (the above graphic is from there so may not be exactly as published by NZH)..

Dotcom employee finishes jail term

While Kim Dotcom, Finn Batato, Bram van der Kolk and Mathias Ortman. await the judge’s decision on their extradition to the US another person involved in Megaupload who gave himself up is just finishing his prison sentence.

David Fisher at NZ Herald wrote Free but $266 million in debt: The deal that gave the FBI an inside man who could testify against Kim Dotcom

As Kim Dotcom waits for a judge to decide if he will be extradited to face criminal copyright charges, a former employee is walking out of jail after serving time on the FBI accusations the internet tycoon continues to deny.

Andrus Nomm had three years of anxiety over the charges resulting from the FBI operation against the filesharing business Megaupload.com. They were claims of a vast criminal copyright conspiracy operated through one of the world’s most popular websites.

Then, earlier this year, Nomm ended the waiting by cutting a deal with United States prosecutors. The result – a 366-day sentence (with an early parole), three years of supervision and a US$175 million judgment.

A database of federal prisoners has Nomm listed as due for release today.

In return, US prosecutors got an inside man – a staff member of one of the Megaupload co-accused who would testify against Dotcom and the others.

So the worst of Nomm’s sentence is over while Dotcom and associates have the extradition still hanging over them. If that goes against them will presumably take the battle to appeal, and if that goes against them thery will have to go to the US to face trial and a possible sentence far longer than Nomm’s.

They were arrested nearly four years ago, in January 2012.

Dotcom’s future now over to judge

The Kim Dotcomn (and others) extradition hearing concluded today. It is now up to the judge to make his decision.

NZ Herald reports: Kim Dotcom extradition hearing reaches conclusion

Now Judge Nevin Dawson has the unenviable task of wading through hundreds of pages of evidence and hours of submissions to make the decision on whether the internet entrepreneur and his three co-accused are sent to the United States to face a trial.

The FBI laid charges in January 2012 when Dotcom, Mathias Ortmann, Bram van der Kolk and Finn Batato were indicted on 13 charges including copyright infringement, racketeering, money laundering and fraud.If found guilty, the men could face lengthy jail terms.

The German-born mogul was not at Auckland District Court today to see the climax of the case. He tentatively limped out of court yesterday grimacing with back pain after a fall at home and his attendance was excused.

Judge Dawson will now have to decide whether the defendants have a case to answer in the US.

He does not have to decide whether they are guilty or even likely guilty – the threshold is lower.

If, on the face of it, he rules there is some merit in the US government’s charges and a case to answer, on the face of it, the quartet will be sent overseas.

But if Dotcom loses this it would be surprisuing if he didn’t appeal.

Judge Dawson today said he would give an abridged version of his decision in open court before releasing his written judgement.

He did not indicate when that would likely take place.

Anxious times for Dotcom, Ortmann, van der Kolk and Batato – it would be quite a situation to be in with your future dependant on what one judge decides, with no idea when you will find out.

The raid and arrests were in January 2012, nearly four years ago.

 

Recorded conversations sound bad for Dotcom

Conversations recorded between co-accused of Kim Dotcom sound bad for them but this is before the defence has addressed them. 3 News reported on the second day in court:

Prosecutors: Skype conversations show Dotcom guilty

Judge Nevin Dawson is hearing evidence in Auckland District Court on whether Dotcom, Mathias Ortmann, Finn Batato and Bram van der Kolk should be surrendered to US authorities.

Dubbed the “Mega Conspiracy” by the FBI, US authorities allege the four made $US175 million by facilitating and encouraging piracy on their file storage website, Megaupload, and related sites.

On Friday Christine Gordon QC, who is acting for the US, read an extensive series of Skype conversations and emails between the men, arguing they revealed they knew the business was a criminal enterprise from the start.

And here are excerpts from some of the conversations.

“The fact is when there’s no way out, Kim will also grab the last couple of millions and go on hiding mode again when that happens,” Van der Kolk was quoted as telling Ortmann.

“The likeliness of us getting in trouble for some reason is getting bigger.”

Ms Gordon read a message from Dotcom suggesting the group urgently hire a lawyer to fend off lawsuits.

Ortmann replied they should just “promise some kind of technical filtering crap and then never implement it”.

In dozens of other quotes Ms Gordon went over, Dotcom described the group as “evil”, Van der Kolk said he always lived from “piracy” and the accused acknowledged the vast majority of the content going through their site was piracy.

“If copyright holders would really know how big our business is they would surely try to do something against it,” Ortmann was quoted as saying.

More than half of the viewing traffic on the site was associated with repeat infringers and Dotcom called them “the special people”, Ms Gordon said.

“That’s the big flaw in the rewards programme: we are making profit off more than 90 per cent infringing files,” Van der Kolk told Ortmann over Skype.

Some of this doesn’t sound good but the defence is yet to respond.

Ms Gordon said the site paid bonuses to copyright infringers using the service, rather than banning them, and then presented an innocent facade while defrauding copyright holders by telling them files were being taken down – when in reality they were uploaded in other locations.

The company paid more than $3 million to uploaders, according to the FBI.

This is basically how I understood the case to be.

While it sounds bad I have no idea how this stacks up against extradition law. I do know that extradition has a lower burden of proof than a trial, it just has to show there is a case to answer.

Eighteen months ago I posted on the responsibilities and record of the Minister of Justice (then Judith Collins) on extraditions which has links to extradition information plus has links to case details.

Dotcom/van der Kolk GCSB Amendment submission

Kim Dotcom and Bram van der Kolk have made a submission to the Intelligence and Security Committee on the Government Communications Security Bureau and Related Legislation Amendment Bill. They have requested to appear before the committee.

Executive summary

  1. This Bill seems to give the GCSB, a dysfunctional agency which has failed at every turn in recent
    times, virtually unlimited power to surveil us all at the whim of the Prime Minister and then
    to share that information with anyone (including foreign entities). Oversight of that power is
    limited or non-existent.
  2. The Bill is a clear example of the type of State intelligence agency overreach that has been
    strongly criticised by the UN Special Rapporteur in his Report … on the promotion and protection
    of the right to freedom of opinion and expression 1.
  3. Our primary submissions are:
    6.1  More time should be taken to consider and debate this Bill and the related
    Telecommunications (Interception Capability and Security) Bill (TICS Bill).
    6.2  The extreme general expansion of the GCSB’s powers is not justified.
    6.3  Spying on New Zealanders is unwarranted without adequate safeguards, which the Bill
    does not provide.
    6.4  The ability of the GCSB to share New Zealanders’ private information with anyone the
    Prime Minister decides, in New Zealand or overseas, is far too wide.
    6.5  Proposed amendments to related legislation should be enhanced to provide adequate
    oversight of the GCSB’s operations.

Conclusion

  1. In summary, we are shocked that anyone would consider giving additional powers to the GCSB
    when it has shown that it is incapable of acting legally.
  2. If such powers are to be allocated, they need to be carefully considered; not rammed through
    with urgency to paper over those illegalities. The Bill submission date should be extended as
    should the time by which the Committee must report back to Parliament.
  3. Any powers which are allocated must not allow for information gathering and retention about New
    Zealanders and New Zealand businesses without judicial warrant and independent parliamentary
    committee oversight. It is very concerning that the Bill proposes that the Prime Minister would issue
    interception warrants without any judicial oversight, which warrants would enable information
    about New Zealanders to be gathered, retained and shared (including with overseas bodies).
  4. Any surveillance of New Zealanders should only be engaged in by the SIS, to prevent this
    indiscriminate sharing with overseas intelligence agencies. The Mutual Assistance in Criminal
    Matters Act (if complied with) provides an appropriate existing mechanism for such sharing.

Source: http://kim.com/gcsb.pdf