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.