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New Zealand police search and seizure of Megaupload property declared illegal

28 June 2012

In a new blow to the case against Kim Dotcom and Megaupload, Justice Helen Winkelmann in New Zealand has ruled that the original search warrants “are invalid”.

More specifically, Justice Winkelmann stated, “The police relied on invalid warrants when they searched the properties and seized the various items. The search and seizure was therefore illegal.” She goes on to add: “The release of the cloned drives to the FBI for shipping to the United States was contrary to the 16 February direction given under s 49(2) of the MACMA [Mutual Assistance in Criminal Matters Act 1992] that the items seized were to remain in the custody and control of the Commissioner of Police. It was therefore in contravention of s 49(3) of the MACMA".

What this means in practice for Megaupload is less clear since the search was effected and the data was sent to the US. It is not certain whether the US ‘fruit of the poisonous tree’ concept, where illegally obtained evidence is generally considered to be invalid, would apply where the illegality is declared in a foreign jurisdiction. Nevertheless, it is another blow to a case that is already in serious legal difficulty. New Zealand has already demanded the return of that data from the US.

But it is certainly not the end of the case. US lawyer Ira Rothken told the UK's TV ONE:  “These types of findings will certainly have consequences on the Government's case. Especially for, what the US is calling, the biggest copyright case in history.”

However, Justice Winkelmann isn’t saying the case cannot proceed. The search was illegal because the warrant was overbroad, meaning that a lot of personal and unrelated property was seized. This, she said, must be returned to Kim Dotcom. But as a TV ONE News report explains, “An independent lawyer will now review the seized items and determine which are relevant to the investigation. Relevent items will be provided to US authorities and the rest will be returned to Dotcom.”

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