U.S. Government Is to Blame for Megaupload Data Massacre, Court Hears

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Megaupload has asked the U.S. District Court to renew negotiations over the preservation of 1,103 servers that remain stored at Carpathia Hosting. If no agreement is reached, Megaupload fears that this data may suffer the same fate as the servers that were recently wiped by Dutch hosting company Leaseweb. Megaupload tells the Court that the destruction of the LeaseWeb servers is a direct result of the U.S. Government's failure to act.

megauploadTwo weeks ago news broke that Megaupload’s former hosting provider LeaseWeb had deleted all Megaupload data from 630 servers without warning.

Petabytes of user data and backups, mostly from European users, were permanently deleted and the servers were re-provisioned to other customers.

Leaseweb defended their actions by pointing out that no party had shown any interest in the data, but this was later contested by Megaupload’s legal team.

Worried that the 1,103 servers that remain stored at Carpathia Hosting may also be wiped, Megaupload has now written a letter to the U.S. District Court with the request to take action. Not only for the sake of the millions of users whose personal files are at stake, but also to preserve crucial evidence.

“In addition to destroying petabytes of Megaupload user data, LeaseWeb’s actions have impaired our clients’ defense, as the servers contained vast amounts of potentially exculpatory evidence directly relevant to the U.S. criminal case,” the letter reads.

Megaupload tells Judge John Anderson that through its inaction, the U.S. Government is to blame for the lost data at LeaseWeb.

“While LeaseWeb’s deletion of relevant evidence in the face of explicit preservation requests is inexcusable, the United States is equally culpable. The Government was plainly on notice of the need to preserve the LeaseWeb servers.”

Megaupload explains that the authorities failed to reach an agreement to preserve the servers and wouldn’t unfreeze some of Megaupload’s funds to cover the storage costs. As a result, the Government failed in its duty to save the data from being lost.

“As Megaupload has long maintained, by freezing the Defendants’ assets and denying Defendants access to or possession of the servers, the Government has exercised de facto control over the servers and is therefore in constructive possession of them.

“Under Brady v. Maryland and its progeny, the Government had an affirmative duty to ensure the preservation of the LeaseWeb servers and the exculpatory evidence they may have contained. The Government failed to do so.”

After the LeaseWeb debacle, Megaupload now fears that the servers still hosted in the United States are also at risk of deletion. To prevent this from happening, they urge the Court to restart the negotiations so a workable solution may be reached.

“The destruction of the LeaseWeb servers demonstrates the urgent need to reach a workable solution for data preservation as soon as possible, lest the 1,103 servers currently in Carpathia Hosting’s possession meet the same fate. We therefore respectfully urge the Court to reconvene the interested stakeholders and renew negotiations as quickly as the Courts schedule permits.”

Megaupload previously reached an agreement with Carpathia Hosting to buy all servers for $1,000,000, but the Government said it did not trust Megaupload with the data and would rather see it deleted.

To find out what role the U.S. authorities have played in LeaseWeb’s decision to re-provision the servers, Megaupload’s lawyers have also sent a letter to the Dutch hosting company and the U.S. Department of Justice. Both parties were asked to share all correspondence following the raids.

“In light of this destruction of evidence, it is critical for us to understand the extent to which LeaseWeb consulted with the U.S. Department of Justice or other U.S. authorities prior to wiping the data. We therefore request copies of any correspondence or communications between LeaseWeb and U.S. officials, whether direct or through Dutch authorities, from January 19, 2012 to the present.”

Over the past months there has been very little progress in the U.S. case against Megaupload. The Court still has to make a decision on Megaupload’s motion to dismiss the indictment as well as the possible return of remaining Megaupload user data.

Through the current letter, Megaupload’s defense hopes to get the data negotiations re-opened, but whether a solution will be reached has yet to be seen.

Megaupload’s letter to court


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