A New Zealand court has declared the raids on Megaupload’s Kim Dotcom to have been illegal. Judge Helen Winkelmann says that when the U.S. government seized much of his property, including large quantities of data from his computers, the warrant was insufficiently detailed.
According to Judge Winkelmann, a search warrant must be framed with as much specificity as permissible. She says “it defines the extent of the authority to search and seize” as well as “informs the person or persons searching of the parameters of the Police’s authority to search and seize goods.”
The police had a search warrant, but it only mentioned his crimes as being “breach of copyright,” which was too broad for the court. She says that breach of contract could mean many things and is therefore, vague. She adds, “The failure to refer to the laws of the United States on the face of the warrants, would no doubt have caused confusion to the subjects of the searches.”
Dotcom is still waiting to hear on whether or not he’ll be extradited, but this ruling is one minor victory he can celebrate. What are the constitutional repercussions of allowing broad search warrants? Should they be so narrow that they handicap law enforcement?
For more information, see The Hollywood Reporter.
The specificity required of a search warrant is intended to preserve one of our most vital constitutional protections – the 4th Amendment right to be free from “unreasonable” search and seizure.
In order for police to obtain a search warrant, they need probable cause (i.e., a reasonable belief that a person has committed a particular crime). While it is essential that the police are given the authority to conduct a fruitful search, the scope of the search must be tailored to produce only the type of evidence connected with the particular crime. Thus, a search warrant that is overly broad such that it permits the police to conduct a search that goes beyond discovery of the type of evidence connected with the particular crime is “unreasonable.”
In Kim Dotcom’s case, any evidence obtained as a result of the items seized by way of the overly-broad search warrant will be considered a “fruit” of the “poisonous tree” – the poisonous tree being the data seized from Dotcom’s computer for example. As such, it will be inadmissible as evidence against Dotcom.
Here’s a link to the decision: https://www.courtsofnz.govt.nz/front-page/cases/dotcom-ors-v-attorney-general
What’s interesting here is that New Zealand apparently has the same prohibition on general warrants as we do in America. As Judge Winkelmann puts it: there is a difference between rummaging through a home looking for evidence of a “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.” That is, under New Zealand law, warrants must allege specific crimes for which evidence is to be gathered. In the case at bar, the warrant described only the type of offense- breach of copyright. Judge Winkelmann notes that “[c]opyright can exist in many things,” and a “breach of copyright can be affected in many ways.” Without the allegation of a specific crime, a warrant might veer into over-broad territory, becoming a “general warrant” so vague as to be illegal. Thus, valid warrants must be “framed with as much specificity as the relevant context permits.”
Additionally, the broad nature of the allegations was combined with a broad list of items to seize. The warrants targeted “all digital devices, including electronic devices capable of storing and/or processing data in digital form.” Judge Winkelmann found this to be an indiscriminate directive: “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.”
Neither party disputed that the police must be allowed to seize some information that later turns out to be irrelevant to the investigation; for to hold otherwise would set the bar so high so as to hamper the police from seizing relevant evidence. However, the police must quickly mine the information and return everything that is not relevant to the investigation. The problem in the present cases was that the actual investigating agency- the FBI- was not the agency executing the warrant. Local New Zealand police had no idea what was or was not relevant.
Lately, the United States government has become fixated on internet piracy and illegal downloading. They seem desperate to eradicate it at any cost, however, it seems like they are a bit too over zealous in their efforts. They have become so focused on stopping any piracy, they don’t seem to be bothering to make sure to actually put together a good case first. There doesn’t appear to be any emergency situation here that would require them to rush forward so haphazardly, especially since this whole case is playing out on an international stage.
One thing that really surprised me was that it appears the the United States Government will be allowed to keep the information they obtained from all of the hard drives, albeit illegally. Isn’t the usual remedy for an illegal search suppression? It seems ironic that after hunting down DotCom for illegally sharing files that weren’t his, the US Government has gone and done the same.