'Global Policing and the Case of Kim Dotcom' by Darren Palmer and Ian J Warren in (2013) 2(3)
International Journal for Crime, Justice & Social Democracy
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In early 2012, 76 heavily armed police conducted a raid on a
house in Auckland, New Zealand. The targets were Kim Dotcom, a German national
with a NZ residency visa, and several colleagues affiliated with Megaupload, an
online subscription-based peer-to-peer (P2P) file sharing facility. The alleged
offences involved facilitating unlawful file sharing and United States federal
criminal copyright violations. Following the raid, several court cases provide
valuable insights into emerging ‘global policing’ practices (Bowling and
Sheptycki 2012) based on communications between sovereign enforcement agencies.
This article uses these cases to explore the growth of ‘extraterritorial’
police powers that operate ‘across borders’ (Nadelmann 1993) as part of several
broader transformations of global policing in the digital age.
The authors conclude -
The complexity of Kim Dotcom’s case highlights several technicalities and regulatory gaps
associated with the global consumption of digital media (David 2010) and commensurate
deficits in the application of due process principles to transnational surveillance, intelligence
gathering and law enforcement procedures. Principles of sovereignty that invoke territorial
jurisdictional boundaries to constrain extraterritorial policing activity are significantly
challenged by global information flows, and related commercial interests that favour enhanced
transnational law enforcement capacities. The ability of private corporations and public police
to engage in extensive online surveillance of suspect P2P and cloud services (David 2010: 5) has
significant implications for notions of individual privacy (Drury 2012). These issues are
magnified in transnational criminal investigations where traditional national due process
constraints governing state surveillance do not adequately encapsulate informal requests for
investigative assistance, which may or may not be formalised through recognised mutual
assistance requirements. Extensive transnational flows of criminal intelligence and other
surveillance activity through collaborative securitisation measures such as the Echelon/Five
Eyes agreement appear to remain beyond critical public or regulatory scrutiny.
However, the cases documented in this paper challenge arguments that transnational policing is
totally immune from regulatory control (Anderson 1989; Deflem 2004). In fact, the Dotcom case
reveals several contradictions between US and NZ search warrant, information seizure, data
transfer and judicial review procedures that are far from being fully ‘harmonised’ or aligned.
Chief Justice Winkelmann’s rulings declaring the NZ search warrants to be invalid might not
have been able to prevent the initial unlawful transfer or destruction of sensitive personal
information about registered users of Megaupload that has been unlawfully conveyed to US law
enforcement authorities. However, these rulings allow for the qualified disclosure of this
information for Kim Dotcom’s extradition and any related proceedings associated with the US
federal indictments. Despite the initially informal nature of the mutual assistance request, its
subsequent formalisation and the related court rulings associated with the NZ raid, the seizure
of evidence, its cloning and ultimate transfer to the FBI were subject to rigorous judicial
scrutiny in line with the local contingencies of NZ criminal and human rights laws. These
avenues temper claims about the ‘Americanisation’ of global policing via the regularisation,
accommodation and homogenisation of highly selective US law enforcement interests in other
nations (Nadelmann 1993).
Dotcom and his associates have been able to fund up to 10,000 hours of legal representation in
NZ partly due to the release of $NZ2.7 million in funds from the various asset seizures. This sum
does not cover legal advice relating to Megaupload’s Hong Kong or US business activities (Fisher
2013). However, for a growing number of people enmeshed in transnational criminal
investigations, such resources are unlikely to be available. Further, the overall costs of
deploying resources and the potential for extensive legal challenges associated with
transnational criminal investigations are a significant barrier to open and transparent justice,
particularly due to the expenses associated with implementing mutual assistance requests,
collecting and securely transferring evidence, and ensuring witness testimony can be presented
and tested in court proceedings (Flynn and Fitz-Gibbon 2013). By April 2012, legal challenges in
the Dotcom case cost NZ taxpayers an estimated $NZ1.12 million, independently of the
undisclosed financial costs of resources provided to the investigation by NZ Police and the GCSB.
Further estimates suggest these costs are likely to increase to $NZ4 or $NZ5 million by the time
of Dotcom’s extradition hearing (Barton 2013b). By contrast, reports suggest that since
Megaupload was closed by the US Department of Justice, two major movie studios report
increased revenues of between $US1.1 and $US1.9 million from online sales and rental
arrangements (Collins 2013). Such figures add weight to the financial arguments supporting the
more rigorous transnational enforcement of criminal copyright laws (McCourt and Burkart 2003), even though the main beneficiary is likely to be the private entertainment industry rather than the state.
Case studies such as this are an important means of understanding contemporary global
policing developments. Legal case analysis does not replace the need for thick descriptions
emanating from ethnographic research (Nadelmann 1993), nor does it seek to re‐cloak global
policing developments within narrow and restrictive ‘rule‐of‐law’ principles. Bowling and
Sheptycki (2012: 130) caution that global policing should not be understood primarily through
the rule-of-law. Rather, the analysis of written law should be seen as a resource to examine ‘rule
with law’, by circumscribing global policing practices through law. The Dotcom case indicates
tensions between US and NZ policing approaches and legal requirements have significant
implications for any transnational prosecutions that reveal an extremely disjointed
harmonisation of contemporary global enforcement and mutual assistance arrangements. While
judicial review can address overt procedural gaps, and invoke awareness of arguments such as
the existence of Baigent’s compensation that might have significant effects in shaping desirable
extraterritorial policing activities, they could equally validate and entrench problematic
transnational enforcement arrangements in other cases. The cases documented in this paper
demonstrate the importance of formal judicial rulings as evidence of ‘rule with law’ that reveal
the relationship between external review and legal resistance towards the unchecked collection
and distribution of criminal intelligence for transnational law enforcement purposes. These
issues remain open to further and ongoing empirical analysis of mutual assistance
arrangements, their implementation and their capacity to be subject to various modes of formal
independent scrutiny under established sovereign legal processes.
Finally, intellectual property law was developed to protect commercial interests associated with
burgeoning nineteenth century print industries (Mazzone 2011). Debate about the suitability of
the criminal law in governing various forms of internet activity is ongoing and magnified by the
difficulties of applying the logics of criminalisation to regulate any transnational or
international behaviour (Findlay 2008). In the online world, competing claims to justice and
procedural fairness involve the simultaneous normalisation of contentious surveillance, data
mining, locational tracking and other digital assemblage technologies in the contemporary
global policing armoury (Haggerty and Ericson 2006). These appear logical measures to combat
copyfraud (Mazzone 2011) and other wrongful behaviour associated with digital information
flows. However, the borderless nature of cyber culture places users of digital technology under
increased surveillance and risk of exposure to complex prosecutions in offshore locations. One
particularly disturbing legacy of the Kim Dotcom saga is that data containing the identities and
locations of all Megaupload are likely to remain in the possession of US authorities, even though
NZ law has later declared this information to have been obtained unlawfully. As such, we remain
concerned that the rule‐of‐law must be incorporated as a central element of a broader suite of
global policing accountability mechanisms that acknowledges the prospect for meaningful
resistance to questionable extraterritorial law enforcement activity not only by individuals such
as Dotcom, but also via activist civil libertarian groups and sovereign judicial review
mechanisms. The cases documented and analysed above offer a pertinent site for the further
examination of these issues, and their potential endorsement and contestation of questionable
extraterritorial policing and surveillance arrangements in the contemporary digital age.
