You’d think the US Government has been embarrassed enough with their abuse of power and disregard for procedure in the Megaupload case that they would just let it all quietly die. No, as evidenced by a recent filing in the Kyle Goodwin case, they are going to fight this one until the end.
Because this case potentially affects everything we do in the cloud, I have followed it closely. But I have to say I am a bit amazed by the arrogant, contradictory, hypocritical, almost desperate brief the government filed a few days ago. I recommend taking a few minutes to read the whole thing, but it basically comes down to the government arguing that instead of having one hearing to see if the guy can get his data back they should break it down into several different hearings, one to argue each point. Their logic is that if they don’t get past the first point, they don’t need to hold any more hearings.
The government would like the hearing broken down like this:
1. A hearing requiring Kyle Goodwin to prove he owns the files he says he owns.
2. A hearing to determine if Federal Rule of Criminal Procedure 41(g) allows Goodwin any relief.
3. Another hearing that would consider exactly what relief might be appropriate.
They also imply other hearings, such as an evidential hearing or another to ensure the court even has jurisdiction over the complaint.
Of course, this is all absurd and an obvious attempt to delay the proceedings and put a greater burden on Goodwin and anyone else who might want to get their files back. It is a common tactic and is one of the reasons why many law firms refuse to accept cases suing the government: even if the government is wrong, they have enough resources to completely swamp a law firm with paperwork and procedural obstacles potentially costing the firm millions of dollars just to get the case heard.
The government’s argument is that by breaking the hearings up, they can put less of a burden on the court. They state that by having just one hearing that “the Court may unintentionally authorize a large amount of irrelevant discovery that impinge on the criminal proceedings.” Plus, they argue, if you dispute some facts, that would likely result in having to dispute other facts and that might require “the testimony of numerous witnesses, including potential expert witnesses.” Finally, they argue, that because they won’t know the scope of the hearings, they don’t know how much information they will need to gather.
Much of the government’s filing is a clear attempt to kill the case by saying that Goodwin can’t even prove he owns his files. It all comes down to Federal Rule of Criminal Procedure 41(g):
(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
To argue that Goodwin has no ownership rights, the government says that he only used a service provided by Megaupload and they only leased servers from Carpathia, therefore Goodwin has no ownership rights to the servers they imaged. The contracts of these services, they argue, probably say that he doesn’t own those servers. But the argument here was never that he owned the servers, only that the government took the only copy of his data.
So what about the data? The government argues that owning a copyright “is not sufficient to establish that he has an ownership interest in… the copies of his data.” They say that there should be a hearing to determine whether Goodwin has a prima facie case before proceeding and that his contract with Megaupload limits his ownership rights. I find it hilarious that this very fact is why everyone is angry about the Megaupload case in the first place: the government had no hearing to prove that the entertainment industry had ownership rights of their data and the fact that Megaupload’s contract and federal laws indemnify them of any liability for sharing copyrighted files.
Their argument also has a major flaw: this is not a contract dispute between Goodwin and Megaupload or Carpathia, it is a lawsuit against the US Government. The government is not a party to any of these contracts and therefore they are completely irrelevant.
Then it gets even stranger. Although the government says they do not have Goodwin’s data on the servers they imaged, and that they are not in possession of the other servers, and that finding any particular users’ data may be technically infeasible, they go and claim that his Megaupload account contains files that might be pirated music. So do they have access to his files or not? Further, having pirated files in his account does not negate the fact that he owns his video files. It’s nothing more than a scare tactic and veiled threat that Goodwin should not continue this case because he does not have “clean hands.”
After the whole argument about Goodwin having to provide evidence of ownership, the government goes on to say that in a hearing to decide a Rule 41(g) motion, “the Court may use affidavits and documentary evidence, without the need for live witnesses.” Basically what they want is to be able to use sworn affidavits instead of putting up live witnesses. This means that they get to introduce a statement from their witness with no opportunity for the plaintiff to cross-examine the witness. Their argument is that Goodwin must bear the burden of proof, not the government. Nice trick, but our legal system doesn’t work that way. The only way to reconcile disagreements of prima facie evidence is through a full trial and that includes witnesses.
What the government is trying to do here is abuse the process to prevent the question coming up asking if their raid was legal in the first place. Part of Goodwin’s case relies on proving that his data was unlawfully seized, which might include proving whether Megaupload’s servers themselves were unlawfully seized and searched. This is an extremely important question that needs to be asked because it will set the precedent for all future government seizures. It affects every company on the Internet that hosts the data of others. And it affects any of us that completely rely on the cloud for running our own lives and livelihoods.
The government must be held to the same standards as anyone else and cannot be allowed to abuse the law to take out any company in any country that threatens the US entertainment industry. If we can stop the little abuses, we help prevent the big abuses.