Dotcom Decision Shows Rule of Law Still Alive in NZ

Just when all right-thinking New Zealanders thought the rule of law was well and truly dead in this country, replaced by the all-powerful and unfettered authority of the Nanny State to do whatever it sees fit, Justice Winkelmann of the High Court has proved that vestiges of ancient legal rights remain.  I am referring, of course, to Winkelmann's decision that that search and seizure of Kim Dotcom's Auckland property, under the direction of the US Federal Bureau of Investigation, was illegal.

When this case broke with an avalanche of international media coverage and comment, I was immeidately concerned on several levels.  I am not an international law expert but I know something about copyright law, having been involved in many contract negotiations for IT software and services, and it seemed to me that even in the United States, the primary offence that Dotcom was being accused of - that of hosting illegal copying services - was a very grey area of the law. 

Fristly, even if Dotcom's Megaupload service has been used for wholesale copyright infringement, it is yet to be conclusively established in US courts that he can be held accountable for the actions of his clients. 

Secondly, even if he is proved to have knowingly colluded in copyright infringement, there is considerable doubt as to whether criminal sanctions can be applied or whether that is something that should be dealt with through the civil courts.

And thirdly, given his services were hosted in Hong Kong and not New Zealand, there is doubt as to whether New Zealand authorities have any legal interest in the case.

If proof were needed of the dubious nature of the offences alleged against Dotcom, the New Zealand authorities only needed to apply the time-tested rule of international extradition treaties - is it something that is illegal in New Zealand?  Dotcom is charged with racketeering.  Racketeering is one of those catch-all offences that United States authorities are fond of applying when no other charge seems to fit.  It is usually used for incarcerating murderous gangsters.  It is not an offence under New Zealand law and therefore would not be able to be used as grounds for extradiction.

All of the above means the New Zealand authorities should have had pause for thought before charging into Dotcom's house during a social event, arresting Dotcom and his employees, and seizing a whole raft of property, including cars, that had little or no connection to the crimes being alleged.

It is highly likely now that Dotcom will walk away from all this a free man, at least in New Zealand.  He will, however, be forever damaged by the illegal actions of the New Zealand authorities.  His business has been largely destroyed and he, his family and his employees are unlikely to get any compensation for their assault by the agencies of the New Zealand Government.  The US Government will never back down and apologise or stop trying to hound him, wherever in the world he may end up (as he will almost certainly be expelled from New Zealand for immigration issues).  Such is the nature of law enforcement in America these days.  The normal mode of operation for the FBI and other US agencies these days resembles the tactics of the gangsters or the terrorists they pursue. New Zealand authorities should not be drawn into this sort of intemperate, thuggish, so-called law enforcement. 

I am grateful for Justice Winkelmann's wisdom.  We might all need it one day.