Gordon Campbell on Kim Dotcom’s bail application

The Crown is opposing bail for Megaupload CEO Kit Dotcom on the basis of (a) that he poses a flight risk and (b) he could recommence his operations if released. Neither seem to be very convincing arguments. By its very nature, the extradition battle is likely to be a lengthy one and if having money is held to be a decisive factor in being regarded as a flight risk, then bail would have to be denied to almost every white collar criminal who comes before the court.

Are the courts really prepared to keep Dotcom and his colleagues in custody for the entire extradition process? That would be a totally disproportionate infringement of the basic right of accused persons to liberty, until the charges against them are heard and proved. On balance, Dotcom poses neither a threat to society nor – given the presence here of his family, and his residency here – does he seem a likely flight risk.

Similarly, there seems little risk of Megaupload rising from the ashes of the FBI’s “Mega Conspiracy” any time soon. If bailed – and under supervision – Dotcom might even conceivably be able to help the authorities to untangle the entirely legal aspects of Megaupload’s operations, and help return that property to its lawful owners. These owners, as Russell Brown has pointed out, may include the likes of Kanye West, Will i am, Snoop Dogg and other less celebrated citizens whose lawful property will otherwise be frozen indefinitely in Megaupload’s cyberlocker until the charges against him and his colleagues are resolved.

As other commentators (including Salon’s Glen Greenwald) have also noted the FBI-led action against Megaupload was taken barely 24 hours after controversial two anti-piracy pieces of legislation ( the so called SOPA and PIPA bills) backed by entertainment industry lobbyists were withdrawn from the US Congress.

Critics insisted that these bills were dangerous because they empowered the U.S. Government, based on mere accusations of piracy and copyright infringement, to shut down websites without any real due process. But just as the celebrations began over the saving of Internet Freedom, something else happened: the U.S. Justice Department not only indicted the owners of one of the world’s largest websites, the file-sharing site Megaupload, but also seized and shut down that site, and also seized or froze millions of dollars of its assets — all based on the unproved accusations, set forth in an indictment, that the site deliberately aided copyright infringement.

In other words, many SOPA opponents were confused and even shocked when they learned that the very power they feared the most in that bill — the power of the U.S. Government to seize and shut down websites based solely on accusations, with no trial — is a power the U.S. Government already possesses and, obviously, is willing and able to exercise even against the world’s largest sites (they have this power thanks to the the 2008 PRO-IP Act pushed by the same industry servants in Congress behind SOPA as well as by forfeiture laws used to seize the property of accused-but-not-convicted drug dealers).

Julian Sanchez at the Cato Institute is also essential background reading on the Dotcom case and his concluding remarks are particularly interesting:

This is another reason the takedown-before-trial model is disturbing. Again, there’s strong evidence in the indictment that Megaupload’s conduct here was anything but innocent. But now imagine some other cloud storage site that comes under the crosshairs of the government or content industries. As I suggest above, they might have very good reason for only disabling specific, publicly distributed links to a copyrighted file in response to a takedown notice, rather than cutting off access to every user who has remotely stored the file, regardless of how they’re using it. At a trial, they’d get to explain that. If the site is shut down before its operators have an opportunity to even make the argument … well, that doesn’t bode well for investment in innovative cloud services.

So far, we have seen the New Zealand courts and Police acting in SWAT team-like helicopter raids that clearly show the Police have been consuming too many of the entertainment industry’s fine products, and colluding with the shutdown of this particular website. Megaupload appears to have been singled out partly for the flamboyance of its owners, which serves all the better to deter les autres such as Mediafire and yes, even Youtube itself – whose content remains an untidy mix of legally and illegally uploaded material.

When and if this case ever gets to a US court, Dotcom’s lawyers should have a fine old time arguing why their operation has been singled out for draconian action, when (apparently) the likes of Youtube are able to quietly devise revenue sharing ad content and other ruses that enable it to co-exist (albeit uneasily) with the same entertainment industry that is now baying for Dotcom’s blood. Our own courts should decline to be party to this particular lynch mob. Dotcom should be released on bail, to oppose the extradition, and ultimately if necessary, to prepare his defence against these charges.

As Glenn Greenwald says, this is what is called due process in the US. In times past, the US courts used to adhere to it. Not so much today. In a recent op ed in the Washington Post (headlined “10 Reasons The U.S. Is No Longer The Land of the Free”) law professor Jonathan Turley itemised the excesses of state power that the Bush and Obama administrations have created (and in some cases used) since 9/11.

These include: the assassination of US citizens, indefinite detention, arbitrary justice, warrantless searches, the use of secret evidence, war crimes and torture, the widespread monitoring and surveillance of ordinary citizens, the use of secret courts, immunity from judicial review and extraordinary renditions. Turley’s conclusions are worth reading:

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powell confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely.

Frankly, the New Zealand courts should not be serving as a dutiful helpmate of such a system. Dotcom should be bailed.

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