Dotcom loses bid to access GCSB recordings

Kim Dotcom has failed in a bid through the High Court to get access to recordings made by the GCSB.

NZH: Kim Dotcom kept in the dark about GCSB spying

In a just-released ruling, Justice Murray Gilbert has said the recordings won’t be released.

The GCSB has previously admitted illegally intercepting private communications between Kim and Mona Dotcom, and Bram van der Kolk, as part of the extradition case being built between December 2011 and March 2012.

Then-Prime Minister John Key has apologised for the communications being intercepted.

“The Dotcoms complain that non-disclosure impedes their ability to pursue their claim and breaches their rights under the New Zealand Bill of Rights Act 1990,” the decision said.

“In particular, they submit that the measure of damages to which they are entitled will depend on the extent and nature of the unlawful intrusion into their private lives and the raw communications are needed to establish this.”

The Dotcom team said that any national security issues shouldn’t stop the information being released, because information on the sources and methods of intelligence-gathering were already public knowledge.

But lawyers for the GCSB argued that releasing the material could prejudice the security of New Zealand, and the confidence of other countries in entrusting sensitive information to New Zealand.

A main reason for Justice Gilbert’s decision is a 2013 Court of Appeal verdict that ruled the GCSB didn’t have to release the raw communications. Justice Gilbert said that meant he couldn’t relitigate the issue.

Even if it wasn’t for the Court of Appeal verdict, Justice Gilbert said national security issues outweighed public interest in the raw communications.

Dotcom has indicated he will appeal this decision.

Dotcom has been giving some of our laws a good workout. And his lawyers.

Dotcom offers evidence to US investigation

Kim Dotcom has offered evidence ti the Special Counsel investigating interference in the US presidential election last year and has volunteered to give it in person, providing he is guaranteed safe passage into and out of the US.


Kim Dotcom Approaches Special Counsel

KIM DOTCOM APPROACHES SPECIAL COUNSEL INVESTIGATING INTERFERENCE WITH THE 2016 UNITED STATES PRESIDENTIAL ELECTION REGARDING EVIDENCE

FOR IMMEDIATE RELEASE
30 May 2017

In accordance with his previous statement on this matter, Kim Dotcom’s solicitors in New Zealand have today sent the following letter to Robert Mueller, Special Counsel appointed to investigate interference with the 2016 United States presidential election and related matters:

30 May 2017

Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
UNITED STATES OF AMERICA

Attention: Robert Mueller, Special Counsel

Dear Sir

INVESTIGATION INTO INTERFERENCE WITH THE 2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

1. We act for Kim Dotcom in New Zealand.

2. We are writing to you in your capacity as special counsel appointed to carry out the above investigation pursuant to Order 3915-2017 (Investigation).

3. Mr Dotcom has evidence that he considers relevant to the Investigation. The purpose of this letter is to confirm that, subject to appropriate arrangements being made and his constitutional rights being preserved, Mr Dotcom is willing to provide this evidence to the Investigation. He has instructed us to make this approach to initiate the necessary dialogue as to the required arrangements.

4. As you may be aware, Mr Dotcom resides in New Zealand. Since 2012, the United States has been seeking his extradition to face a criminal prosecution arising from his involvement in the Megaupload group of companies. Presently, Mr Dotcom is on bail while he exercises (as he is entitled to) his rights under New Zealand law to resist extradition. Mr Dotcom emphatically denies the alleged offending and is committed to defending the allegations in the extradition proceeding in New Zealand.

5. Mr Dotcom is also committed to achieving an outcome where his evidence can be properly received and reviewed by you as part of the Investigation. You will, however, appreciate that, given his current status, he is not in a position to voluntarily leave New Zealand’s jurisdiction. Further, he is concerned that, should he travel to the United States voluntarily, he would be arrested and detained in custody on the current counts on which he has been indicted.

6. Accordingly, for Mr Dotcom to attend in person in the United States to make a statement, and/or give oral evidence at any subsequent hearing, special arrangements would need to be discussed and agreed between all relevant parties. Such arrangements would need to include arrangements for his safe passage from New Zealand and return. This is because Mr Dotcom is determined to clear his name in New Zealand.

7. Mr Dotcom invites the Department of Justice to contact him through counsel to progress the taking of his evidence once you have had an opportunity to consider this letter and are in a position to discuss the required process and appropriate safeguards.

8. We look forward to hearing from you. If you have any questions, or require any further information, please do not hesitate to contact us.

Yours faithfully
ANDERSON CREAGH LAI LIMITED
Phil Creagh
Director

http://www.scoop.co.nz/stories/PO1705/S00469/kim-dotcom-approaches-special-counsel.htm


There are other simpler options.

He could send his evidence.

A representative of the investigation could come to New Zealand to see Dotcom.

Or a representative of the US already in New Zealand could receive the evidence from Dotcom and pass it on.

It’s hard to know whether Dotcom genuinely has information that will help the inquiry, or if he is grandstanding, or if he is playing games with the US.

It’s possible that he wants to meet with people in the US to discuss his own extradition case to try and deal with that.

Regardless, one could easily be suspicious of his motivation – why would he want to help the investigation?

Would Dotcom be prepared to give the US evidence of everything he knows about hacking or otherwise obtaining information and what WikiLeaks does with it and why?

 

A moment of mis-truth?

Kim Dotcom dived into the Seth Rich issue, promising #GameChanger inteview with Sean Hannity on Tuesday. But Fox News retracted a story – see Fox retracts Seth Rich story – and on his Tuesday show Hannity said ““Out of respect for the family, I am not discussing this matter at this time.”

And suggestions have been raised about the possibility Dotom tried to manufacture some ‘truth’.

Washington Post: The life and death of the Seth Rich conspiracy theory

When Seth Rich’s Gmail account received an alert this week from Mega.com, attempting to start a new account on a website created by the New Zealand-based Internet businessman and convicted hacker Kim Dotcom, his family knew that something was off.

Over seven frenzied days, Dotcom had become a leading purveyor of the theory that Rich, a staffer at the Democratic National Committee who was shot dead near his home in Northeast Washington last summer, had supplied DNC documents to WikiLeaks and was killed as a result. Multiple security analysts and an FBI investigation have tied the release to hackers with ties to Russia. D.C. police have said repeatedly that they think Rich was slain in a random robbery attempt.

According to experts and Rich’s family, the emailed invitation from welcome@mega.nz appeared to be an attempt to gain access to Rich’s email. Joel Rich, who maintains his late son’s Gmail account, did not click the link. Meanwhile, Dotcom was promising on Twitter to prove that the younger Rich had been in contact with WikiLeaks — and Fox News host Sean Hannity was telling his 2.37 million Twitter followers to be ready for a revelation.

Hannity had invited Dotcom to appear on his show for what he said on Twitter would be a “#GameChanger” interview. The implication: that Dotcom would finally offer evidence of his claim that Rich had sent internal DNC documents to WikiLeaks before his death

But that hasn’t transpired.

All that began to unravel Tuesday afternoon, when Fox News retracted a story that had claimed the same Rich-WikiLeaks connection, telling readers that the article was “not initially subjected to the high degree of editorial scrutiny we require for all our reporting.” Fox News did not respond to a request for comment, but Dotcom wrote on his website that he would not speak further about his allegations.

The latest revelation — that a hacker from New Zealand may have been trying as recently as this week to hack into Rich’s email — offered fresh evidence that the conspiracy theory is false. Dotcom, it seemed, may have been willing to create a fake archive of emails from Rich to “prove” his role in the DNC hack.

Shades of 2014, when Dotcom’s ‘Moment of Truth’ show in the lead up to New Zealand’s general election fizzled when questions were raised about the authenticity of an email produced by Dotcom.

In a statement, Rich’s family told The Post that they wereinvestigating whether someone attempted to gain access to Rich’s email account. “We are outraged that certain individuals continue to try to use Seth’s name and memory to advance their political and ideological agendas,” they said. “We hope people will think twice the next time someone makes an outlandish claim to have discovered new evidence in this case.”

A family spokesman went further, criticizing Fox News for fanning the flames.

Dotcom’s story has ‘evolved’.

Dotcom did not respond to an emailed question about the Mega account, but his story about Rich has altered since some attention-grabbing tweets. On May 16, he mentioned Rich for the first time, after a follower asked what he thought of the conspiracy theory that Rich was tied to the release of thousands of internal DNC documents.

On May 19, Dotcom asked for Google to release the contents of Rich’s Gmail account, as well as two accounts that online sleuths had claimed belonged to him.

Later that day, Dotcom said that he was willing to “give written testimony with evidence” that Rich had passed the DNC documents to WikiLeaks.

That attracted the interest of Hannity, who had devoted several segments of his radio and TV show to the conspiracy theory. Dotcom then claimed that he would be able to reveal what he knew after talking to lawyers.

But in a Tuesday message that Dotcom posted on his website, he claimed only to know that “Seth Rich was involved” in the DNC hack, and that he would give his full statement after a “guarantee from Special Counsel [Robert S.] Mueller, on behalf of the United States, of safe passage from New Zealand to the United States and back.”

So it sounds like we won’t be getting a full statement. It’s unlikely the US will give Dotcom safe passage to allow him to grandstand on Fox’s Hannity show.

Dotcom is linked to Wikileaks.

WikiLeaks’s Julian Assange had persistently fed rumors of a connection with Rich without providing evidence. He has offered a $20,000 reward for information about Rich’s killer, and he has used an interview with Dutch television, an interview with Hannity and several tweets to suggest that Rich’s case showed why WikiLeaks sources tread carefully. He has never explicitly said whether Rich was a source.

But Dotcom did.

The collapse of the story came only after a number of conservative voices drew attention to it. On Monday, Rush Limbaugh told listeners that Dotcom was “renowned” and “world famous,” with a story to tell.

“This story is now starting to get legs, that Seth Rich was murdered, it was a contract hire killing because he was leaking to WikiLeaks,” Limbaugh said.

On Tuesday, Hannity told his radio listeners that he would keep fighting to disprove “this Russia collusion narrative” and be proven right.

“I will do the mainstream media’s job like I have for most of my career,” Hannity said. “All you in the liberal media, I am not Fox.com or FoxNews.com. I retracted nothing.”

But…

…on the Tuesday night episode of Hannity’s show — the one that conspiracy theorists hoped would showcase the “game-changer” interview with Dotcom — Hannity said he had exchanged letters which Rich’s family and would not discuss the story.

“Out of respect for the family, I am not discussing this matter at this time,” Hannity said. “But to the extent of my ability I am not going to stop trying to find the truth.”

In the meantime he could stop promoting fake truth.

Fox retracts Seth Rich story

Fox News and especially Sean Hannity have pushed a story about murdered Democrat staffer Seth Rich. Kim Dotcom has been given airtime by Hannity.

Salon: Newt Gingrich and Sean Hannity keep Seth Rich conspiracies alive

Former Speaker of the House Newt Gingrich appeared on “Fox and Friends” on Sunday morning, only to use his platform to further promulgate the previously debunked conspiracy theory that former Democratic National Committee staffer Seth Rich was assassinated because he was the source that provided Wikileaks with tens of thousands of hacked Democratic Party emails.

“We have this very strange story now of this young man who worked for the Democratic National Committee, who apparently was assassinated at 4 in the morning, having given WikiLeaks something like 53,000 emails and 17,000 attachments,” Gingrich told Fox News. “Nobody’s investigating that, and what does that tell you about what’s going on? Because it turns out, it wasn’t the Russians. It was this young guy who, I suspect, was disgusted by the corruption of the Democratic National Committee. He’s been killed, and apparently nothing serious has been done to investigative his murder. So I’d like to see how [Robert S.] Mueller [III] is going to define what his assignment is.”

Gingrich didn’t just say it could be a possibility that Rich was the Wikileaks source or that the murder may be worth some sort of further investigation, he baselessly asserted that Rich was the source — on national television — and that it effectively negated any alleged Russian involvement.

But Gingrich isn’t even the only notable person peddling this theory, it’s also being peddled by Sean Hannity, and more recently Kim Dotcom, the internet entrepreneur who founded Megaupload.

Hannity who has increasingly gone on Trump-like twitter sprees over the recent months has not been able to contain himself from spreading this theory along with the hashtag #SethRich to his nearly 2.5 million followers.

Dotcom on the other hand, has has recently inserted himself into this situation, and claimed that he has irrefutable evidence that Rich was the Wikileaks source, and will be releasing some sort of statement on Tuesday, though it’s currently not clear what that will consist of.

Hannity has been busy on Twitter.

Fox has now retracted: Statement on coverage of Seth Rich murder investigation

On May 16, a story was posted on the Fox News website on the investigation into the 2016 murder of DNC Staffer Seth Rich. The article was not initially subjected to the high degree of editorial scrutiny we require for all our reporting. Upon appropriate review, the article was found not to meet those standards and has since been removed.

We will continue to investigate this story and will provide updates as warranted.

Dotcom announced this week — seemingly out of nowhere — that he would release the information on his website Tuesday, but the supposed bombshell drop that many were desperately hoping for was quite anticlimactic.

“I KNOW THAT SETH RICH WAS INVOLVED IN THE DNC LEAK,” Dotcom — who is fighting extradition charges to the U.S. from New Zealand — wrote on his site.

I know this because in late 2014 a person contacted me about helping me to start a branch of the Internet Party in the United States. He called himself Panda. I now know that Panda was Seth Rich.

Panda advised me that he was working on voter analytics tools and other technologies that the Internet Party may find helpful.

I communicated with Panda on a number of topics including corruption and the influence of corporate money in politics.

“The Rich family has reached out to me to ask that I be sensitive to their loss in my public comments. That request is entirely reasonable,” he continued. “I have consulted with my lawyers. I accept that my full statement should be provided to the authorities and I am prepared to do that so that there can be a full investigation. My lawyers will speak with the authorities regarding the proper process.”

In reality, the Rich family thanked Fox News for retracting the story, according to CNN reporter Oliver Darcy.

Dotcom’s Seth Rich claim

Kim Dotcom has involved himself in the Seth Rich issuer in the US.

NBR: Dotcom’s Seth Rich claim earns him an invite to appear on Sean Hannity’s show

Kim Dotcom has managed to catch the eye of Fox News’ Sean Hannity — one of Donald Trump’s favourite broadcasters — with his claims over the unsolved murder of Democratic National Committee IT staffer Seth Rich.

Mr Rich was shot in the back near his home in Washington DC last year.

DC police have yet to solve his murder. His family believe it was a robbery gone wrong.

Since his murder, there have been conspiracy theories that Mr Rich was killed because he was the source of DNC emails supplied to Wikileaks, not Russian operatives as FBI investigations have suggested. The narrative is that he was killed in a cover-up.

Last Monday, the rumour mill re-ignited after Rod Wheeler, a Washington private investigator who was hired by the Rich family to look into the death of their son, suggested in an interview with a Fox station in Washington DC that there was “tangible evidence” the slain DNC operative had communicated with WikiLeaks before his death.

However, on Tuesday afternoon, the PI seemed to walk back his story. CNN reported the detective saying he had “no evidence” that Mr. Rich had contacted WikiLeaks and that he had “only learned about the possible existence of such evidence” through a reporter at Fox News.

Then, in a third interview later the same day, Mr Wheeler said he could not say definitively either way if the evidence existed. He had heard about it second hand.

In the middle of it all, The Washington DC Metropolitan Police Department issued a statement saying that “the assertions put forward by Mr. Wheeler [on Monday] are unfounded.”

Enter Kim Dotcom, who this weekend tweeted “If Congress includes #SethRich case into their Russia probe I’ll give written testimony with evidence that Seth Rich was @Wikileaks source” and “I knew Seth Rich. I know he was the @Wikileaks source. I was involved.”

I wonder what Dotcom’s motive is for getting involved in that.

Interesting he has come out saying he was that involved in Rich and Wikileaks.

Hasn’t Dotcom claimed there is a heap of data waiting to be dumped on the New Zealand election campaign?

Dotcom’s email evidence was a forgery – SFO

Kim Dotcom’s extravagant town hall ‘Moment of Truth’ during the 2014 election campaign fell flat in part because an email that Dotcom planned to produce to prove John Key’s collusion with Hollywood fell through when it was claimed to be a forgery.

The Serious Fraud Office has now put out a statement saying that they are satisfied that the email was a forgery.

NZ Herald: SFO: Kim Dotcom’s smoking gun email evidence was a ‘forgery’

The Herald can today report for the first time that the SFO investigated the email, which emerged on the eve of the 2014 election claiming then-Prime Minister John Key was involved in a conspiracy to get Dotcom.

It is also a definite statement rejecting any possibility the email is genuine.

In a statement, the SFO said: “The SFO confirms that it carried out an investigation into this matter. As a result of that investigation, the SFO is satisfied that the email was a forgery.”

Dotcom said today that he still believed the email to be genuine and was surprised the SFO was able to be so definite.

“I believe the email to be real,” he said.

But he backed off revealing it at his ‘Moment of Truth’.

The purported email was from Warner Bros chief executive Kevin Tsujihara to the Motion Picture Association of America’s Asia-Pacific president Michael Ellis.

It was dated the day Key met Tsujihara and was in the midst of Immigration NZ’s consideration of Dotcom’s residency.

dotcomemail8

A Warner Bros senior vice president told the Herald at the time: “Kevin Tsujihara did not write or send the alleged email, and he never had any such conversation with Prime Minister Key. The alleged email is a fabrication.”

A spokeswoman for the MPAA said: “Mike Ellis never received this alleged email or discussed this matter with Kevin Tsujihara.”

Dotcom said today that the email was “easy to discredit” because it did not have “headers” – detailed information which shows the internet protocol address from which it was sent or the relays and servers it passed through.

As a result, he “could not use it at the Moment of Truth” – the event he organised at the Auckland Town Hall the week before the 2014 election. There, whistleblower Edward Snowden, Julian Assange of Wikileaks and journalist Glenn Greenwald made claims of mass surveillance of New Zealanders.

“It was a huge disappointment and distracted from the bigger picture: The Government and its participation in mass surveillance,” Dotcom said.

That was all timed to try and swing the election against the National government. Dotcom was financing and promoting his own Internet Party, which not only failed itself it also dragged down the Mana Party.

The email is back in the spotlight thanks to a new taxpayer-funded documentary into the Dotcom case. Kim Dotcom: Caught In The Web, which premiered at the SXSW film festival in the United States this week, includes the German-born entrepreneur talking about the origins of the email.

In the documentary, he says: “That email, I know it comes from hacker circles. You know about the famous Sony Hack. The same people who were responsible for that hack, were responsible for this hack.”

But it was text only, without the details necessary to prove authenticity.

Investigators familiar with SFO methods told the Herald the definite statement the email was a forgery revealed an deep and forensic-style investigation.

One investigator with SFO experience said the agency would have sought statements or interviews from the named executives and access to the servers. It would have studied the format and style of the email to see if it was consistent with where it was supposed to have come from.

Checking servers of the purported recipient and sender would be essential too. “If you did both parties and neither had it, that would be a strong basis to support the argument it was a forgery.”

He said the inquiry would also have involved each person believed or known to have contact being considered.

The SFO have gone further than saying that the email can’t be authenticated, they have stated that they think it was a forgery.

It’s hard to believe that Dotcom would fabricate a bogus email as he would known it would be denied.

Was Dotcom set up? If so, by whom, and why? Was it done to try to help Dotcom, or to try to trash his credibility?

Dotcom – Trump

refers to CNN (from last September): Is Trump right? Could a 400-pound couch potato have hacked the DNC?

Russia might be behind the hack of the Democratic National Committee, according to US officials and lawmakers — but not Donald Trump.

The Republican presidential nominee came up with many alternative possibilities at the first general election debate on Monday night.

“It could be Russia, but it could also be China. It could also be lots of other people,” he said during the first presidential debate. “It also could be somebody sitting on their bed that weighs 400 pounds.”

(400 pounds = 181 kilograms)

So a monster bed potato, not a couch potato.

Yesterday:

Dotcom-Trump

I can’t find that on Twitter now, but Dotcom has tweeted since:

Dotcom-Trump-2

Bizarre. How would Dotcom know this?

Why are Dotcom and Wikileaks so keen to help Trump?

I don’t trust US spying but I wouldn’t put much faith in those who think Trump can fix it all. Or are Trump and Assange more interested in getting onside with Trump so he will help them?

 

Dotcom to appeal after High Court judgment

As expected Dotcom will appeal.


Media Statement From Dotcom Legal Team.

This case is no longer the “largest criminal copyright case”, 1 at least as far as New Zealand is concerned. As we have said all along, there is no such offence under our Copyright Act. We were right. However, this afternoon the High Court judgment 2 was issued and, ultimately, although it concluded we are right, 3 the Court concluded that Kim is still eligible for surrender.

To win the major plank 4 of the case but to get that outcome is extremely disappointing. However, we are far from defeated. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright is not an offence under that Act, how it can nonetheless be massaged into a general fraud offence. In fact, that thinking has been rejected outright in the Supreme Court in the United States.

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

The last hurdle to what we say is the correct outcome – no extradition – will now need to be determined by the Court of Appeal. We remain confident that this last point, which would prevent extradition in this complex and unprecedented legal case, will be resolved in Kim’s favour in a manner consistent with Parliament’s intent, international law and, importantly one might think, the United States’ own law.

Whilst many have struggled to get beyond the United States’ hype in this politically charged and misunderstood case, an objective observer will now realise that there is much more to this case than they were previously informed of from the District Court judgment.

Whether Kim has committed an offence under New Zealand copyright law has finally now been answered in his favour; he has not. Whether our law should still permit him to be extradited to the United States under an Act that has no interest in copyright, is the question that remains now to be answered by our Courts. We say no and we are confident that this must be right.

Whether you are a supporter of Kim’s or not, these are important principles of law for us all and the very issues that we need our justice system to grapple with if we want a credible and safe process for extradition to any requesting country, including those with whom we have a close commercial and political relationship.

Ron Mansfield, Barrister

Dotcom Legal Team

1 https://www.justice.gov/opa/pr/justice-department-charges-leaders-megaupload-widespread-online-copyright-infringement

2 Ortmann & Ors v United States of America [2017] NZHC 189.

3 See paragraphs [169]-[192] (in particular [192]).

4 See paragraph [591].

5 See paragraph [183].

(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

High Court: Dotcom and co-accused eligible for extradition

The High Court has just released a decision saying that Kim Dotcom cannot be extradited for copyright infringement, but there are grounds for extradition on “general criminal law fraud provisions”.

NZ Herald: Kim Dotcom and co-accused eligible for extradition to US, says High Court

In the High Court finding released today, Justice Murray Gilbert upheld a decision by the District Court that there were grounds for the quartet to be extradited,

But the judge has also supported an argument made by Dotcom’s legal team that he and his former Megaupload colleagues cannot be extradited on copyright infringement grounds.

He said that was because “online communication of copyright protected works to the public is not a criminal offence in New Zealand”.

He said it meant the accused could not be extradited to the US on copyright grounds.

Instead, Justice Gilbert said there were “general criminal law fraud provisions” which covered the actions of the accused and they could be extradited on that basis.

He said he agreed with District Court judge Nevin Dawson that there was enough information to make the decision based on accepting a “record of the case” put forward by the US which detailed the evidence it claimed to hold against the Megaupload accused.

Dotcom’s lawyer is claiming a victory.

Dotcom’s lawyer Ron Mansfield claimed victory from the ruling, saying the case was no longer the “largest criminal copyright case”.

“As we have said all along, there is no such offence under our Copyright Act. We were right.”

That may be so, but if Dotcom can be still be extradited that is hardly a victory.

And it probably won’t be the last attempt to prevent extradition. I presume there are appeal steps yet to come.

NZ Herald has an interview with Dotcom on this: Kim Dotcom legal saga: Extradition to US over Megaupload still on cards but he claims court ruling is a ‘major victory’