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Opinion: Megaupload case still a travesty of justice

Two world-class software engineers have been caught up in the protracted legal fight over the Megaupload case, writes Mega executive chair Stephen Hall

Six years have passed since the infamous dawn raid targeting Kim Dotcom, Megaupload and some of its managers. It set off what Deputy Prime Minister Winston Peters rightly called an “unsatisfactory chapter” in New Zealand’s law enforcement history. Since then, countless millions of taxpayer dollars have been spent trying to extradite Dotcom and three of his managers. Two of them are in the office next door to me, still providing tireless support for a new business, named “Mega”, which they co-founded over five years ago and which is now employing dozens of Kiwis to manage what is a genuinely global platform. They want to keep innovating and growing right here, but their fate continues to be extremely uncertain.

I’m not talking about Kim Dotcom, who left Mega in 2013 and claims to be working on a new venture, kept in the public eye by his outsized persona and hunger for the spotlight. I’m referring to Bram van der Kolk and Mathias Ortmann, two world-class software engineers who have been caught up in this protracted legal fight with the US Department of Justice. The Megaupload case is uncharted territory, under NZ and US law, but the co-founders of my employer still face the prospect, if extradited, of sentences longer than most drug lords and murderers.

Few will disagree that the 2012 Police raid was a disgrace; an egregious incursion of US politics into the NZ justice system and that aspects of the Crown’s processes have been appalling. The essence of the alleged copyright conduct was found to be not a crime under New Zealand law, and yet the Crown continues to see fit to do the FBI’s bidding, now pursuing invented claims of fraud to justify extradition.

Subsequent legal battles might have been less dramatic than the commando style raid, but the endgame remains the same. Time and again, the NZ Government has bent over backwards to find any legal rationale that allows them to achieve extradition, even trying to limit access to funding for legal representation, and arguing the case most recently before the Court of Appeal. How does this still rate as a priority for our justice system? How can extraditing two computer nerds warrant such a huge allocation of time and resources?

Van der Kolk and Ortmann have been productive residents in Auckland with their families, despite their worldwide assets having been declared forfeited by US courts under a legal paradigm that is not recognised by New Zealand law. Against both governments’ wishes, they have achieved approval to use some of their money to fund their legal defence while they are still here, but if extradited, would have no choice but to rely on a US public defender to make their case. Can you imagine that? Any trial in the US under those conditions would make David and Goliath look like a fair fight.

These are incredibly complex legal arguments. They require specialist knowledge that few lawyers possess. Make no mistake: with only a US court-appointed attorney to defend them, setting foot in the US probably amounts to years in prison pending trial and then decades in prison for these guys. It’s hard for me to understand why the NZ Government would willingly take part in this. Whatever it is, it doesn’t fit with natural justice or fair play.

But maybe a new government brings new hope for a common sense resolution. From the outset, it has been clear that the US Government wanted to make an example out of Megaupload while its competitors that undertook the same practices (such as YouTube) have not been pursued. The new Mega is recognised by authorities in NZ and overseas as a good corporate citizen. The technology and the enforcement priorities have moved on. The relentless pursuit of the Megaupload case is fighting an old war on a battleground we can’t even recognise today.

Kim Dotcom’s forays into the media and politics have alienated many New Zealanders and haven’t helped facilitate the kind of quiet resolution you might expect with a case like this. But we shouldn’t let his notoriety cloud the fact that this six-year old action is ill-founded, unjust and does not serve New Zealand’s interests. That was true that January morning back in 2012, and it’s no less true today.