Tuesday, June 4, 2013

NZ Business Friendly Forensics Ruling

On Friday, a New Zealand judge ruled for Kim Dotcom in the case of MegaUpload.  The judge ruled that the seizure was overly broad and directed that drives and drive clones be returned to the plaintiffs.  Yep, that was three day ago and it is old news.  So why am I writing a blog post about this?

Here's what I haven't seen publicized.  The plaintiff sought an order that "the Police pay, on an indemnity basis, the plaintiffs’ costs of and incidental to this proceeding and any order thereon."  The judge didn't rule in this portion of the case.  Rather, it was left this to a future ruling.  The fact that it wasn't ruled on isn't a loss for the plaintiffs.  I view it as a loss for law enforcement.  If the request had no merit, the judge would have dismissed it out of hand or ruled as such on it in the 31 page ruling.  I expect the state to ultimately lose on this and be forced to pay at least some of DotCom's legal expenses and possibly other damages.

Let that sink in for just a minute.  If you work for DoJ or law enforcement, let that sink in for more than a minute.  I have no idea what the legal costs were here, but the judge found this warrant to be so egregious that law enforcement will pay the legal costs of the defense.  Wow.  I have no idea what the cost of Kim DotCom's defense team is, but I'm betting he isn't using a public defender.

The bigger question on this has to do with the breadth of data obtained (seized) by the government.  In the past, many have questioned the breadth of digital evidence seized by the government in the course of an investigation.  In particular, the issue has to do with the seizure of personal digital media that does not contain evidence.  Of course defendants lose access to this media during the course of an investigation, which may span years.  Critics have correctly stated that law enforcement can and should clone or image suspect media and return the original to the defendant.

Traditionally, if defendants want access to data via cloned media, they have been forced to pay for the media and the production costs.  Given that the US Government famously pays $100 for a toilet seat, I can't imagine what data production costs would be for a cloned drive (even when you provide the drive).  Here's what's significant in this case: the judge ordered that law enforcement incur the cost of sorting seized data to locate actual evidence.  The judge also ordered law enforcement to pay for any costs associated with cloning media to the originals could be returned to the defendant.

Considering that the MegaUpload seizure was the largest in history, this ruling was particularly significant.  Unfortunately this ruling was made in NZ, not the US so we don't yet know what implications it will have on the US case against MegaUpload and the other seizures associated with this case.  In any case, I think the ruling is a game changer.  Unless it is overturned, this makes NZ an extremely business friendly environment for data storage (in the event of litigation).

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