Kim Dotcom Megaupload case falters over sharing Canadian data

More than three years have passed since Canadian policeseized 32 Megauploadservers on behalf of U.S. authorities seeking to prosecute company founder Kim Dotcom in one of the world's largest copyright infringement cases.

Still, no one except perhaps officials with the file-sharing company itself knows what's on the servers.

At issue now is how much of this seized Canadiandata can be shared with the U.S. Department of Justice, which is very eager to press its case againstDotcom, who iscurrently fighting extradition from New Zealand, where he's a permanent resident.

In a Toronto court on Monday,Crown attorney Moiz Rahman, acting on behalf of the U.S., recommended bringing in aU.S. "clean team" an Americanterm for a group of forensic investigators independent of thecase to sift through the 25 terabytes of data on the servers to pick outrelevant files and separate them from personal information.

But Megaupload'slawyer arguedthat the Ontario court can only ask the U.S. police officials on the so-called clean team to "double pinky promise" that they won't share information not relevant to the case, since there's no way to enforce the court's decision south of the border.

"Once they return to the United States, that's nothing more than a promise," said ScottHutchison.

U.S. regulators shut downMegaupload,founded by the notorious Kim Dotcom,in January 2012. At the time, it was one of the world's largest file-sharing sites. (Dotcom, a German-Finnish entrepreneurwho was born Kim Schmitz, changed his name in 2005.)

Dotcom and others face charges related to copyright infringement, racketeering and money laundering. Prosecutors argue thecompany essentially rewarded users for uploading popular content such as stolen movies and TV shows.

The three-year-old case has been mired in complications and delays, including here in Canada.

• KimDotcomstill free on bail, but says he's broke
• Megauploadindicted founder launches new site

On Jan. 18, 2012, an Ontario judge granted a search warrant to seize 32 servers in Canada equivalent to the amount of data stored on 100 laptops, according to Megaupload lawyers.

A year later, a different Ontario judge rejecteda request to send mirror copies of what was on those servers to the U.S, saying such a request might be overly broad.

Instead, the justiceordered both parties to find a way to filter out and share only the relevant data.

The "vast majority" of the data, argues Megaupload lawyerHutchison, is likely everyday files uploaded by innocent users of the file-sharing service, which allowed users to upload and share large files such as photos, videos and documents.

"We don't know what we're turning this clean team loose on," saidHutchison at Monday's motion hearing.

'Very minor' information

Even if the court assumed half of Megaupload's daily users estimated to be 50 million at the time of the site's shutdown were innocent, that's a lot of irrelevant files in the hands of U.S. officials, he said.

Instead,Hutchisonproposed that an independent Canadian examiner be hired to review the content.

Crown attorney Rahmanargued that having a U.S. clean team do the sortingposed no greater risk than the practice of allowing U.S. police to come into the country to witness evidence.

Hesays the clean team would review the materials without delving too deeply. It would then present an index of what's contained on the servers to the court, which would decide what gets turned over to the U.S.

Rahman noted that the treaty guiding U.S.-Canadainformation exchangeallows for the Ontario court to place restrictions on how the evidence is used.

"That's a little bit of cold comfort to me," said Justice Michael Quigley.

Beyond that, Rahman said this data pales in comparison to other information shared easily with the U.S., such as wiretaps.

"What's being proposed here looks very, very minor in terms of what we're exposing foreign officials to," saidRahman.

Ultimately, however, the issue comes down to cost. Rahmansaid the price tag to hire anindependent Canadian examiner would be "prohibitive."

The judge ordered both parties to do a cost comparison between the U.S. clean team versus. hiring Canadian experts before a decision will be made.

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