On January 20, New Zealand police showed up in style at the mansion of flamboyant Megaupload founder Kim Dotcom, swarming over the property and bringing along two police helicopters. They cut their way through locks and into the home's "panic room," where Dotcom was hiding in apparent fear of a kidnapping or robbery. They seized 18 luxury vehicles. They secured NZ$11 million in cash from bank accounts. And they grabbed a whopping 150TB of data from Dotcom's many digital devices.

"It was definitely not as simple as knocking at the front door," said Detective Inspector Grant Wormald in a police press release at the time.

It was also totally illegal. That's the ruling of New Zealand High Court judge Helen Winkelmann, who today ripped the "invalid" warrant and the subsequent search and seizure in a 56-page decision.

The ruling marks a major win for the Kim Dotcom defense, which is trying to prevent their client from being extradited to the US on a host of copyright and money laundering charges. Still, it's not yet clear if Dotcom will actually get his data back; the FBI already flew to New Zealand, imaged much of the data in March, and FedExed it back to the US.

"The search and seizure was therefore illegal”

At the instigation of groups like the MPAA, the FBI opened an investigation two years ago into Megaupload's activities. The online file locker had become a popular place to store and share large files online, some which were copyrighted and shared without authorization.

By January, the FBI had elevated its informal contacts about the case with New Zealand officials into an official "government to government" request for legal assistance under an extradition treaty between the two countries. The US would prosecute the case in Virginia, where a grand jury had been convened, but it needed New Zealand cops to actually arrest Dotcom and search his property.

The goal was to swoop in during Dotcom's birthday in mid-January, since several of his Megaupload co-defendants were going to be at his mansion outside of Auckland. On January 17, the New Zealand Deputy Solicitor-General issued an authorization for local police to apply for warrants. They did so the next day, showing up with affidavits at the North Shore District Court—but the duty judge didn't have time to deal with the request. The matter was held over until January 19, when the warrants to search Dotcom's house and two other properties were approved; police had 14 days in which to execute them.

They needed only a day; on January 20, they arrived at the house. Dotcom later told the court he had no idea that the people he saw flooding into his property were police, so he fled to his home's secure room. After realizing they were cops, he says he decided to stay put rather than take the risk of popping out and perhaps getting shot.

"Not once did they say they were police," he testified. "They had civilian clothes on. The only things that I saw were flack jackets with a lot of pistols and automatic weapons."

Once they arrived at the panic room, Dotcom said, "I was punched in the face. I was kicked down on the floor. One guy was standing on my hand so my nail was ruptured and my hand was bleeding. It was quite aggressive."

In the police view, however, Dotcom was hiding from them—and had retreated to a room with a weapon "which had the appearance of a shortened shotgun." CCTV footage from the house, which might show more of what really happened, has been seized by police and not yet returned.

In any event, with the initial unpleasantness of the raid behind them, New Zealand investigators pored over the house and began packing up evidence. They showed Dotcom the judicial warrant, as required, but it was a confusing document. The warrant didn't make clear, for instance, very basic facts like: under which country's laws was he being targeted? The actual warrant application didn't even make clear that the US was involved. As Judge Winkelmann put it:

The failure to refer to the laws of the United States on the face of the warrants, would no doubt cause confusion to the subjects of the searches. They would likely read the warrants as authorizing a search for evidence of offenses as defined by New Zealand's law. The only clue that they are not is that each one is headed "the Mutual Assistance in Criminal Matters Act 1992." That is not much of a clue.

And what were the cops looking for? They didn't know, exactly. Because they were not investigating the case—the FBI was doing that—the police executing the search had limited knowledge of what was truly useful and necessary. As the judge put it, the people executing the warrant "were not the investigating officers and had limited knowledge of the operation," despite being briefed before the raid went down.

They had the warrant document to guide them, of course—but it was a remarkably open-ended piece of work. Dotcom was accused of "breach of copyright," but in what way? The warrant didn't say.

“Copyright can exist in many things," wrote the judge. "A breach of copyright can be affected in many ways."

Warrants need to allege specific crimes for which evidence is being gathered; it's the difference between rummaging through a home looking for evidence of "murder" and rummaging through a home looking for evidence about "the murder of such-and-such, killed on such-and-such a date, by such-and-such a weapon."

The requirement imposed by [New Zealand law] is not to describe the type of offense, but rather the offense or offenses in respect of which the warrant was sought and obtained.

Without the specific allegation of a crime, a warrant might veer into over-broad territory, becoming a "general warrant" so vague as to be illegal. According to Judge Winkelmann, that's exactly what happened here. "These were general warrants both in form and reality," she wrote. Proper warrants must be “framed with as much specificity as the relevant context permits."

Local laws apply

In this case, the broad nature of the alleged crimes was combined with a broad list of things to grab. For instance, the warrant targeted "all digital devices, including electronic devices capable of storing and/or processing data in digital form."

This was pretty indiscriminate. Everyone involved admits that police must be allowed to grab some information that turns out later to be irrelevant to their case; otherwise, the standard for searches would be so high that much useful material would never be found. But the key point is that the cops need to quickly triage the material taken and return everything not relevant to the investigation.

In this case, the cops had a problem doing so. Because the actual investigators were the FBI, local New Zealand police had no idea which data was relevant. Besides, they had grabbed 150TB of material, and analysts admitted to the court that they couldn't process such a volume without spending a substantial sum of money for more workers and equipment. So the idea was: we'll just ship it all to America and let the FBI do the minimization there.

But that's not an option. The warrant was executed in New Zealand under New Zealand law against a New Zealand resident, and cops can't simply act as agents for another country and then tell aggrieved parties that they have to go deal with that country if they want their irrelevant data back.

"In this day and age computers (and even phones) are used by individuals and families to store a wide range of material information, family photos and films; personal correspondence (e-mails) and generally information of a private and purely personal nature," wrote the judge. Such information must be promptly returned.

Instead, the police "exceeded what they could lawfully be authorized to do. This is because they continue to hold, along with the relevant, material they concede will be irrelevant. They've taken few steps to identify the material, and no steps where the material resides on the computer hard drives... They intend to allow the FBI to do that in the United States. That is an approach that is not available to them.”

Instead, the judge noted that the police could have invited FBI officials to come to New Zealand and assist with the initial data triage. Simply offloading their legal responsibility for "minimization" to the FBI won't wash, however.

The rule of law

To sum up the ruling: the warrants were "general warrants, and as such, are invalid.” Because the police relied on invalid warrants, "The search and seizure was therefore illegal.” And the data should not have been imaged wholesale by the FBI without Dotcom's consent, which the judge found no evidence of.

New Zealand's government took one last stab at keeping Judge Winkelmann away from the whole issue of the warrant's validity and argued that local courts should not review the warrant; only the trial court—in this case, the Virginia District Court in the US—had that power. Winkelmann was having no truck with this, for reasons much like those surrounding data minimization.

"It would not be consistent with the object of promoting the rule of law internationally, were the domestic courts to refuse to review the lawfulness of warrants" obtained in this manner, she noted.

"If having conducted a review, it is determined that there was a fundamental defect in the warrant, it is difficult to see why a Court should decline to declare as much, even where trial processes are engaged in another jurisdiction.”

What comes next

Winkelmann is proceeding cautiously, given the complexity of the case. Today's ruling does make clear both that the warrants were illegal and that removing the cloned data to the US was "unlawful."

But how to proceed? The FBI already has the data it wants; is Winkelmann going to ask US law enforcement to return all cloned copies to New Zealand, as Dotcom's lawyers would like? Will she set up a New Zealand-based process to vet all the data and only then release relevant information to the US?

Tricky questions, and all potentially expensive. Winkelmann will hear further arguments on how to proceed on July 4. Until then, though, Dotcom can celebrate an important early victory in the case. Perhaps he can even look forward to getting his home's CCTV footage back from police—and we can get a better picture of what went down on January 20.