In a case all about the illegal storage and transfer of digital materials, it seems bit rough the FBI can rock up in New Zealand, clone a bunch of hard drives owned by former Megaupload king Kim Dotcom and via the most ironic of loopholes, send them off to the US. Yet, this is precisely what has happened.
Stuff NZ writes that a pair of FBI agents copied data off seven of Dotcom’s drives and sent the information back to the United States without prior consent. Willie Akel, Dotcom’s lawyer, alleges that an “agreement” was in place that required the FBI to get the all-clear first before appropriating evidence from the arrest.
However, the Crown has defended the FBI’s actions, stating that because the data was not “physical material”, legislation does not cover it under the agreement. From Stuff NZ:
“The first [copies] were sent without the New Zealand Police having any say in it whatsoever,” Mr Akel said. The commissioner of police had “lost control of the items” once the FBI had them … “If [they] went offshore without the consent of the attorney-general, it was an illegal act.”
However, Crown lawyer John Pike, for the attorney-general, said the material stored on the hard drives could be shipped overseas for the FBI to examine because it did not constitute “physical” material.
The relevant legislation applied only to physical possessions rather than information, Mr Pike said. “[Information] may be the most valuable thing we have, but it is not scooped up by the act”.
That’s, uh, quite the loophole, especially in a case such as this one.
Regardless of Kim Dotcom’s guilt, you can’t help but feel the FBI has pulled a swift one here. Obviously, the legalities regarding evidence are different to those covering piracy, but it’s hard not to see the disconnect.