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Court says FBI shouldn’t get to review MegaUpload’s Canadian data

By | Published on Tuesday 4 April 2017

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A Canadian appeals court has ruled that the FBI shouldn’t get to decide what MegaUpload data currently sitting on servers in the country can be handed over to, erm, the FBI.

As much previously reported, when often controversial file-transfer platform MegaUpload was shut down by the US authorities in 2012 on copyright grounds, servers rented by the now defunct company were seized at various sites and in various countries. And that included a number of servers at the Toronto base of the American company Equinix.

Although US investigators putting together the criminal case against MegaUpload and its former management team, including founder Kim Dotcom, have had plenty of time to swim around the ocean of data contained on servers MegaUpload rented within America, they are yet to get their hands on the machines sitting in Toronto.

They are keen to do so because, the FBI says, other evidence suggests those servers were “database/number crunching machines”, rather than just a place to store the files of MegaUpload customers. That means those servers could contain extra useful evidence that the FBI could use in its case against Dotcom et al.

However, when Canada’s Minister Of Justice ordered that the former MegaUpload machines be sent south to American investigators in 2013, lawyers for the ex-company argued that the servers contained a lot of irrelevant material that shouldn’t just be handed over to the feds. With that in mind, the Canadian courts said that an independent expert should review the servers first and advise the judge on what data should be shared.

Who should do that reviewing though? The FBI proposed that it send a team of its experts who weren’t actively involved in the MegaUpload case and have them decide what material was relevant and irrelevant. In 2015 the Canadian courts approved that proposal. However, unsurprisingly, MegaUpload appealed the decision, as did Equinix which was concerned about the precedent the ruling set.

On Friday, the Ontario Court Of Appeal sided with MegaUpload and Equinix, ruling it would be inappropriate to have the FBI advise the judge on what data from the MegaUpload servers should be shared with the FBI.

The appeals judge wrote: “In my view, it is offensive to the appearance of fairness, and specifically the appearance of judicial impartiality, to have an entity closely associated with one of the adversaries provide the judge with the necessary report [regarding the data]”.

The appeals court conceded that having the FBI review the servers would be cheaper than appointing an independent agency, though the judges reckoned that – while cost is a consideration – the cost of other options would have to be “prohibitively excessive” for them to consider allowing a party involved in the case to perform the role of ‘independent’ expert’.

All of which means another option is now required to review the Canadian MegaUpload data before any of it can be sent down to the American authorities.



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