Last week Megaupload filed a motion claiming the U.S. Government deliberately misled the court.
The authorities withheld information that showed how key evidence was “planted,” Megaupload’s lawyers argued, referring to a crucial part of the indictment that was also mentioned in some search warrants.
When the U.S. Government applied for the search warrants against Megaupload last year, it told the court that Megaupload was warned in 2010 that it was hosting infringing files.
At the time Megaupload was informed through its hosting company about a criminal search warrant in an unrelated case where the Government requested information on 39 infringing files stored by the file-hosting service.
Megaupload cooperated with this request and handed over details on the uploaders. The files were kept online as Megaupload was instructed not to touch any of the evidence. However, a year later this inaction is being used by the U.S. Government to claim that Megaupload was negligent, leaving out much of the context.
According to Megaupload this course of action was misleading.
However, in a reply filed by the U.S. Government just before the weekend United States Attorney Neil MacBride disagrees.
“Megaupload’s allegations are baseless, as even a cursory review of Megaupload’s pleading and the search warrant materials at issue disproves the allegation that the government misled the court as part of a conspiracy to entrap Megaupload,” MacBride writes.
According to the Department of Justice they never asked Megaupload to keep the files online.
“For instance, Megaupload alleges that the government ‘affirmatively [led]’ Megaupload to retain certain files on its servers. Yet Megaupload does not cite a single communication between the government and Megaupload or a single instruction from any member of the government to Megaupload; there are none,” MacBride adds.
As is often the case in legal proceedings, this is a matter of interpretation. The U.S. indeed denied to communicate directly with Megaupload, but did request action for Megaupload through its hosting company.
The U.S. further argues that the part about the 39 infringing files was not even mentioned in the search warrant that was executed at Megaupload’s hosting company.
“Similarly unfounded is the allegation by Megaupload that the government ‘planted Megaupload’s alleged knowledge of infringing files’ and misled the Court. Megaupload claims that the government inserted a misleading ‘snippet’ into ‘each relevant affidavit,’ and that the ‘snippet’ misinformed the Court by highlighting Megaupload’s failure to remove content deemed infringing in the June 24, 2010 warrant.”
“To the contrary, no such ‘snippet’ appears anywhere in the primary search warrant at issue in Mr. Goodwin’s motion. That warrant, the search warrant executed at Carpathia Hosting in January 2012 does not even mention the June 24, 2010 search warrant,” MacBride writes.
However, the U.S. Government does not mention that these snippets were used in several of the other crucial search warrants that were unsealed recently.
According to the U.S. Attorney, Megaupload’s request for a hearing on the matter should be denied because their claims are baseless. Since Megaupload’s motion is filed in relation to the civil data retrieval request of a Megaupload user, the U.S. further states that this is not the proper time to address the issue.
It’s now up to the court to decide what to do next.
If the court sides with Megaupload and eventually rules that the warrants are declared unlawful, Kim Dotcom and his fellow defendants will be in a much better position to win the case.