Chris Barton 's Opinion

Technology columnist for the NZ Herald

Chris Barton: Kim Dotcom's quest for power

78 comments
Kim Dotcom. Photo / Brett Phibbs
Kim Dotcom. Photo / Brett Phibbs

Money may not be able to buy you love, but in Kim Dotcom's case, it seems it can buy everything else. Affluent lifestyle, fast cars, women. Check. New Zealand residency. Check. New Zealand politicians. Check. Fireworks celebrations, blanket media coverage, Nazi memorabilia. Check. Political power? Perhaps.

If the latter comes to pass, John Key has only himself to blame. As political commentator John Armstrong wrote earlier this year: "If there is any such thing as karma in politics, then the National Party should deservedly pay a heavy price at some point for so blatantly putting naked self-interest ahead of the public interest with regard to the no small matter of reform of the MMP voting system."

Armstrong was talking about National's rejection of the Electoral Commission's recommendation to rid our MMP democracy of its corrupting one-seat threshold provision - the very aspect Dotcom is seeking to exploit in his quest for power. In doing so, Dotcom, and potential political ally Hone Harawira, have copped considerable flak for what would be perceived their cynical manipulation of the system.

Which is, considering the similarly cynical deals John Key's party seems prepared to do with Act, United Future and Colin Craig, a bit rich. If anything, Dotcom's play balances the ledger, potentially cancelling out the effect of National's lapdogs. On that argument alone - the proper functioning of democracy - some may see an Internet Party vote as a valid tactical response.

Ever since he arrived on our shores, the big German with the cartoonish name, has held up a very public mirror revealing a less attractive side of the New Zealand psyche: our propensity to fawn over the wealthy; the callowness of our politicians; the farcical bungling by our spy agency, the GCSB; the cringeworthy spectacle of our police revelling in American style shock and awe. But it's Dotcom's endless parade before our courts, reflecting the grinding wheels of our judiciary, which raises a deeper question. Can Dotcom get justice in New Zealand? Judging by the March 21 Supreme Court judgement against him, possibly not.

The dismissal by four to one Supreme Court judges of Dotcom's appeal to be able to see the background evidence of the case against him represents a severe blow in his battle to resist extradition to the United States. Disclosure, so Dotcom is fully informed, is verboten. The judgement also suggests an unsettling pattern to a case that represents a minefield of political influence issues and legal complexities. Legal rulings set in train by our District Court and upheld by our High Court are then overturned by our Court of Appeal and that overturning upheld by our Supreme Court. If the trend continues then Dotcom's prospects don't look great. His next big test comes with a second appeal to the Supreme Court as to whether search warrants issued in the raid on his Coatesville mansion were illegal. Chief High Court Judge Helen Winkelmann ruled they were but our Court of Appeal said they weren't. The constant back and forth paints a picture of court judges in deep disagreement on fundamental issues of fairness and due process. It begs the question: How many of them know what they are doing?

Meanwhile Dotcom's civil case for $6million in damages against the Attorney General regarding unlawful actions of the police during the raid and the GCSB's illegal surveillance of Dotcom continues.

Disclosure was at the heart of the Supreme Court appeal that Dotcom has just lost. Four judges ruled that all that was required in the extradition hearing was a summary - "record of case" - of the evidence provided by the United States. The dissenting voice was Chief Justice Dame Sian Elias who pointed out the Extradition Act states the record of case "must include both 'a summary of the evidence acquired to support the request for the surrender of the person' and 'other relevant documents, including photographs and copies of documents'." She also noted that natural justice requires those charged are to be informed "in detail of the nature of the charge", and are to have "the right to adequate time and facilities to prepare a defence". On the face of it, it's hard to disagree with such a fundamental right - especially when facing the prospect of being locked up in a United States prison. The majority of Supreme Court judges however said, despite the wording of our Act, natural justice was overruled by our international obligations and the purposes of our extradition treaty with the United States. They did say: "Requesting states, however, owe a duty of candour and good faith to the extradition court. They must disclose any evidence that would render worthless, undermine or seriously detract from the evidence upon which they rely, whether on its own or in combination with material that is in the requesting state's possession or is drawn to its attention by the requested persons or the Court."

Bizarre, because that's exactly the sort of information Dotcom is seeking, but can't get -essentially arguing that the case against him as presented is one sided and with inferences and bias. And that he has a right to see the documents and context from which the case arose.

The United States case against Dotcom and his co-accused is based on an expansive, some would say dubious, interpretation of copyright law. It hinges on coupling contributory copyright infringement with conspiracy - that while Dotcom and his co-accused didn't themselves infringe copyright, their Megaupload website encouraged users to do just that. And that Dotcom et al wilfully set about running a criminal enterprise to exploit copyright infringing works. As a result of their criminal objective Dotcom and his cronies were therefore involved in an activity called racketeering. The money they derived from that activity and moved around therefore involved money laundering and whenever it went across borders it would be a wire fraud. The organised criminal group charges are necessary because copyright infringement by itself is not an extraditable offence. But the whole case falls over if criminal conspiracy can't be proved. Dotcom is of course adamant there was no conspiracy, that Megaupload was used for other legitimate file sharing purposes and the company went to extreme lengths to remove copyright infringing material from its service.

While Dotcom's path to disclosure of documents held by the United States that could show an absence of conspiracy is now cut off, the Supreme Court notes Dotcom does have other avenues - namely seeking disclosure under the Official Information Act from any New Zealand agencies involved in the process, including the Ministry of Justice. In a new twist to the already convoluted court-room drama, Dotcom has been provided documents by the GCSB and Police under discovery in the civil case and is now asking the courts for those documents to be available for the extradition hearing.

That's currently set down for July, but may be delayed again if the Supreme Court agrees to hear the appeal regarding the illegality of the search warrants. The smoking gun here is alleged evidence of political interference and other abuses of the extradition process. If that can proved, Dotcom and his political ambitions could be a permanent New Zealand fixture.

Chris Barton

Technology columnist for the NZ Herald

Chris Barton is a freelance writer with 28 years experience in newspapers and magazines. He's been writing about technology since 1986, was the founding editor of New Zealand PC World and has won numerous media awards, including, in 2009, journalism's top prize, the Wolfson Press Fellowship to Cambridge. He has a Master of Architecture, teaches part time at the Auckland School of Architecture and is an architecture critic, winning, in 2014, the Canon Media Awards Reviewer of the Year.

Read more by Chris Barton

Have your say

We aim to have healthy debate. But we won't publish comments that abuse others. View commenting guidelines.

1200 characters left

Sort by
  • Oldest

© Copyright 2014, APN New Zealand Limited

Assembled by: (static) on production apcf01 at 26 Nov 2014 13:53:34 Processing Time: 333ms