You Wouldn't Steal Due Process: Part I
Over the last six months, Kim Dotcom's name and face have achieved levels of global infamy usually reserved for corporate logos and trendy African despots. The case presents a unique challenge to reporters constrained by time and column length: merely reporting the facts of the labyrinthine story fails to appreciate its wider implications. Much of the media's coverage has been splintered, relating each new aspect as it comes to light, or Dotcom's more general strangeness.
In the first post of this two-part series, Matt Harnett looks at Dotcom's history, his arrest and the subsequent fall of his empire.
The Information Superhighway Less Travelled
The largest criminal copyright case in history began at dawn in Coatesville, 40 minutes north of Auckland, on the morning of January 20th, 2012.
As police cruisers streamed along the blacktop towards 186 Mahoenui Valley Rd, two helicopters streaked overhead, carrying officers armed with Bushmaster M4A3 carbines. Speed and surprise were essential. They had picked their morning well; it was the day before Kim Dotcom’s 38th birthday celebration, and several of his co-accused would likely be in attendance.
Few of the police attending the raid had ever worked alongside another country’s government agency before, and certainly not one as renowned as America’s FBI. Three Federal Agents and an FBI lawyer were in Auckland that morning, though they didn’t participate in the raid. Would New Zealand’s police force do themselves proud under the scrutiny of foreign professionals? How many New Zealand police does it require to take Hollywood’s most-wanted man into custody? Seventy-six. No chances were to be taken with the planet’s top-ranked Call of Duty player.
Cars kicked up stones on Dotcom’s gravel driveway; choppers flung themselves from the sky, their skids making impressions on rolling, manicured lawns. Even before their machines had fully come to rest, officers were sprinting towards the mansion, yelling as they went, identifying themselves as police and to open up. The day before, Dotcom had been visited by an Orewa Community Constable who had secretly videotaped the mansion’s interior to help plan the raid.
As police stormed the front door, event reports from those who were present grow fractured. Perhaps they identified themselves as police, or perhaps not. It’s possible they saw Dotcom shortly before he disappeared deeper into the mansion; his physical bulk, even from a distance, must have been impressive. He stands six feet six inches, and weighs 130kg. Certainly doors were kicked in – broken wooden frames remained weeks later, their doors left hanging.
At some point though, the mansion’s security systems were activated – or activated themselves – and throughout the house, wide, thick doors swung shut, their electronic locks clicking securely into place.
Who was this man to rouse such uncharacteristic extravagance in the usually laconic New Zealand police force? What crimes had he committed that they required assault rifles and dogs to subdue him? This confusing, violent event surely heralded the beginning of something – but what?
No One Who Speaks German Could Be An Evil Man
Kim Dotcom sought and gained New Zealand residency midway through 2011. A notorious hacker, his criminal convictions for insider trading, embezzlement, computer fraud and handling stolen goods had since been wiped by Germany’s Clean Slate laws, which take effect either 5 or 15 years after a conviction, depending on its severity. He rented a property 40 minutes north of Auckland, near Albany. The word ‘rented’ is important, because million-dollar donation to the Christchurch earthquake appeal or no, the government refused to let him own property in New Zealand. Though his fantastic wealth was good enough ensure his residency, the redoubtable Simon Power, Minister of Immigration, nevertheless deemed him of insufficient moral character to buy property here and personally vetoed his attempted purchase of the mansion.
Since his arrest, some media outlets have pigeonholed him a flamboyant geek, but I’d say he’s more accurately described an authentically unreformed nerd: a product of the dot-com bubble who made good on the promises that many other entrepreneurs and corporations of the late 90s found fleetingly ephemeral. His first fortune was not made legitimately, but getting caught only whet his appetite for fortune, not legitimacy. There’s something almost charmingly doleful about an expert hacker who keeps getting caught for dishonesty crimes. Dotcom had sampled what money could buy: women, cars, bleeding-edge CPUs – little wonder he chased affluence with both hands open.
Trying to dredge insight into Dotcom’s character and motivation from secondhand sources seems superfluous; a digital extrovert, he’s heaved himself into the spotlight consistently for more than a decade. From this (intentionally?) absurd wish-fulfillment fantasy where he hunts down Bill Gates, to paying for his escapades in Monaco to be made into a movie, to most recently a rap song about John Banks, he reliably puts himself out there. I could listen to him say “Hi! Ich bin Kimble” for hours.
In early March he appeared on TV3’s Campbell Live, and spoke at length about the charges against him.
He appeared friendly, plain-spoken, and legitimately aggrieved by what he and his family had gone through. Presenter John Campbell did an appalling job throughout, asking patsy questions, wanting to discuss his “feelings,” and deciding not to get specific on any of the many, many crimes Dotcom has been convicted for, several within the last decade.
To be fair, perhaps he did ask these questions, in the last three minutes of the interview. Despite refreshing my browser several times, I never quite made it to the end of the segment before some error stalled playback and I had to start from the beginning. This problem was not mine alone; when the interview was posted in early May, several internet communities took a keen interest, and the servers TV3 used to host the video were overwhelmed with traffic. Messageboard commenters sardonically mused aloud that if only there were some fantastical place online where large files could be stored and retrieved easily by thousands of users, bandwidth issues wouldn’t be a problem. Reddit attacked the issue by ripping the video from TV3’s rubbish proprietary player and uploading it to YouTube.
The network that owns TV3 reacted feverishly. Attempting to visit the webpage where John Campbell speaks sympathetically with an industry-reviled copyright infringer yields: “This video contains content from Mediaworks NZ Limited, who has blocked it on copyright grounds. Sorry about that.”
On The Other Hand, Without A Gun
They Can’t Get None
Back in Coatesville, Dotcom’s disappearance behind electronically locked doors didn’t have police concerned for long. The barriers were quickly dismantled, and they soon gained access to Dotcom’s bedroom.
He wasn’t there. Police spread through the sprawling mansion, hunting with semi-automatic rifles drawn. Nannies were woken from their beds and taken outside with the children, as was Dotcom’s heavily-pregnant wife, Mona. It began to drizzle.
Wayne Tempero, Dotcom’s household chief of security, was cuffed and taken to wait on the lawn. After a fruitless search for the hidden German, police asked Tempero where he was hiding. He said he didn’t know. Minutes passed. The Coatesville rain continued.
Most of the 50 household staff had been rounded up and escorted, like Tempero, onto the grass. The police asked again where Dotcom was. This time, Tempero allowed that he was probably in the panic room, and showed officers the cupboard concealing it.
The New Zealand Police made a hole in the wall with a sledgehammer, and then began cutting their way in.
The Revolution Will Not Be Televised
(It will be downloaded)
Arguably, there was nothing inherently illegal about the service provided by Megaupload. The website acted as a huge online warehouse which users uploaded large files into – files too large to be sent via email, for example, or ones whose creators wanted to readily disseminate. A band might upload a self-recorded EP and give all their Facebook followers a Megaupload link. A production company might send gigabytes of raw video to offices on the other side of the world. The risk-averse might backup or share their hard drives online, in a type of barebones cloud storage system.
Full disclosure: I once had a paid Megaupload account. You didn’t need an account to download a single file from the website, but if you wanted to download multiple files over a short period without bandwidth restrictions, you needed to pay a small fee for “premium” access. I used Megaupload almost exclusively to download copyrighted content. It was the heady days of 2007, before bittorrent became ubiquitous, before embedded media players came standard on most websites (like TV3’s piece of shit). When good TV shows began airing in a different country, I didn’t want to have to wait for a year and then buy the box set at an exorbitant mark-up. Profiting off the back of my Generation-Me compulsions, Dotcom accrued a fortune.
It would have been illegal for anyone at Megaupload to actually open the things people were putting online. Electronic communication enjoys the same theoretical respect of privacy as sending a letter. If every week one user uploaded a 200mb video, and hours later, millions of other users were downloading it, the sysadmins at Megaupload might guess that this was copyrighted material, but they would have no responsibility to investigate further or remove the offending file.
It’s a situation analogous to the owner of a building that hosts PO Boxes. She might suspect that unsavoury types are using the boxes in her building for something below-board, and perhaps report her suspicions to the authorities, but she can’t just open them up and rifle through them. She’ll comply with the police or the post office if they get involved, but until they then there’s not much she can, or even should, do.
Megaupload did remove thousands of files that record companies and movie studios told them breached copyright. Many were given system access whereby they could directly enter Megaupload’s database and remove whatever they wanted without questions. There is no doubt in my mind that Dotcom knew his site hosted hundreds of thousands of files that infringed on copyright. In the interview with Campbell, he plays down the probability of illegal file trafficking, but the reality is that at its height, Megaupload accounted for 4% of the internet’s traffic, and much of that volume would have been illegal in the eyes of US law.
However, the relevant, interesting question isn’t: did Kim Dotcom knowingly abet illegal copyright infringement? It’s not even: should Dotcom have more pro-actively sought to weed out file infringement on the website he owned – and could he have, without breaking the law? The question is: why are US Federal Agents so aggressively attempting to prosecute this relatively vanilla file-infringer? Or, more portentously: what does it say about New Zealand that our government willingly, cravenly caved to their demands, and what will it say about us if we extradite him under the most dubious of pretexts?
None of the police reports or subsequent journalism describe how long it took to cut into the panic room, or what exactly the cutting entailed – a blowtorch? Hacksaw? – but frequently mentioned is the fact Dotcom was found inside the room near a shotgun. The shotgun was in a gun safe, presumably the safest place for guns, but this fact was omitted from the police report, and only emerged in the following weeks.
Once they’d cracked his shell, Dotcom was taken into custody, where he stayed for 32 days. As he was led from his house under guard, he walked past where Tempero lay on the grass and shook his head, taking in the plainclothes cops and the helicopters and the assault rifles. "Copyright infringement,” he said.
You can find Part II here, where Matt examines the troubling questions this case imposes on New Zealand - politically, diplomatically and morally.