Citizen of the Internet

Kim Schmitz, at 37, who changed his name to Kim Dotcom, was enjoying life. He had a ton of toys and lived large.  Why shouldn’t he? He had the money to pay for this life, and it’s no crime. Unless the source of the money came from crime, in which case it’s a different story altogether.

The indictment, a tedious document replete with the typical surplusage that makes his every utterance sound ominously nefarious, may be half (or more) fluff, but if only a tiny fraction is accurate, will be sufficient to lock him away forever. 

Still, it sends the message. No matter where you are, or how big you get, the United States of America will get you, because it owns the internet.

He held German and Finnish passports, but lived in a mansion in Auckland, New Zealand.  Sure, there were 525 servers used by MegaUpload in Virginia, but then there were 630 servers in the Netherlands. The corporation was based on Hong Kong.  No matter. We have laws and the clout to make them apply to anyone, anywhere.  Even to Kim Dotcom, who  had the audacity to own cool cars with naughty license plates.

The indictment goes after six individuals, who between them owned 14 Mercedes-Benz automobiles with license plates such as “POLICE,” “MAFIA,” “V,” “STONED,” “CEO,” “HACKER, ” GOOD,” “EVIL,” and—perhaps presciently—”GUILTY.” The group also had a 2010 Maserati, a 2008 Rolls-Royce, and a 1989 Lamborghini. They had not one but three Samsung 83″ TVs, and two Sharp 108″ TVs. Someone owned a “Predator statue.” Motor bikes, jet skis, artwork, and even 60 Dell servers could all be forfeit to the government if it can prove its case against the members of the “Mega Conspiracy.”

It’s not the number of Mercedes owned is a significant criteria under the sentencing guidelines per se, but anybody who has more toys than the rest of us must have done something criminal.  And we just hate them anyway for living a funner life than us.

As Ken at  Popehat noted, the indictment and takedown came on the heels of the SOPA blackout, but couldn’t possibly have been related given the time and effort required for the investigation.  Heck, they couldn’t have typed the indictment fast enough to make the timing work.  Coincidence aside, it’s still part of the same problem, in that the government’s efforts to make its mark, to tell the world that it’s subject to the might of the United States even when it exists only in the cloud, was clear.  The laws being considered by Congress, and for which Congress got smacked by an unforgiving internet, was a tentacle of the government’s effort to rule the world we know as the internet.  So was this indictment.

There is a lesson in this indictment, fortuitously coming immediately after the blackout, that anyone who thinks the internet is the wild west, where there is no law other than survival of the fittest, is wrong.  No matter where you are, no matter how much money you make, no matter what, the United States of America has taken jurisdiction over you and, well, will bring you down if it so chooses.

One of the underpinnings of the need for SOPA/PIPA, for law to address the devil of the web, was the inability of copyright holders to reach beyond the jurisdictional limits that comprised the foundation of our legal system.  We could sue, and perhaps even get a judgment assuming we could meet the procedural requisites to appear to obtain jurisdiction under the old way of thinking about things, but it seemed like a pointless effort.  All that time and money spent trying to grab hold of a world that existed in binary code. Why spend good money on a worthless judgment? The internet laughed at our legal system.

Thus comes the Mega Indictment, a very deliberate decision to use scarce prosecutorial resources to make a critical point in the maturation of the internet.  Having already established through the peculiar jurisprudence of terrorism that everywhere is America for the purposes of jurisdiction, requiring little more than some facile rhetoric and a decent understanding of Chaos Theory to connect the dots and present a cogent argument about how everything that happens affects us, no matter where or when, jurisdiction over the Mega defendants was a no-brainer.

For the powers that favor an orderly and controlled internet, this indictment was absolutely critical, a means of telling every would-be internet pirate/entrepreneur that the rules apply or they will be crushed.  That the internet is everywhere, and anywhere, would present no obstacle to the most powerful nation on Earth.

In a way, this was necessary.  The internet defies arcane concepts of jurisdiction.  Sure, a guy in his basement in Des Moines was easy enough to nail, but what of Dotcom in Auckland? Or Germany, or the Netherlands?  What about Fujian or Bangalore?  It no longer matters where you are. Physical presence has been rendered meaningless, and if the government of China or India isn’t interested in squelching piracy by someone on its soil, does that leave the rest of the world powerless to do anything? 

We may not be particularly sympathetic to the MPAA or the RIAA because of their outrageously heavy-handed tactics, there are aggrieved parties who still need a means of redress short of putting together armed forces to invade foreign nations.  On the other hand, the United States has taken it upon itself to declare sovereignty over the internet, to proclaim that no matter where it happens, it’s subject to our laws.

Thus far, it appears that law enforcement in New Zealand is on board with the United States ownership of the internet, and their cooperation in executing warrants and seizing cool cars with funky license plates smooths what might otherwise be a sticky situation.  Whether the New Zealand courts will be as cooperative has yet to be seen.

While us little people were spending out time bemoaning SOPA/PIPA, the might of the United States was being applied to far bigger, far more important issues.  But it’s all part of the same message.  There will be law on the internet, and that law will be dictated by the United States of America.  If we can take down MegaUpload, we can take down you. And me. And anyone.  Now you know. 

11 thoughts on “Citizen of the Internet

  1. Marc R

    Hopefully those with the “presciently” titled license tags have some money unmolested by our gov’t to hire good defense attorneys to fight 1) jurisdiction and 2) the law’s overbreadth.

  2. Lurker

    Here, the main mistake made by Mr. Dotcom, my compatriot, was to move to New Zealand. Anyone with the basic understanding of the world politics should know that Australia and New Zealand are staunch US allies, with an extradition treaty. Thus, if you are committing crimes on US soil from New Zealand, you should count on this happening. New Zealand will not hesitate to extradite a foreigner to its great ally.

    On the other hand, had Mr. Dotcom remained in Finland, he would surely not be extradited to the US, as we do not extradite our citizens out of the EU. On the other hand, the actions he has been alleged to take with MegaUpload are of such nature that they would quite surely attract police attention here, too.

    And at least with the Finnish criminal law, the issue of jurisdiction is clear: a crime has been committed in Finland, if its effects have occurred here. Thus, even my small homeland declares sovereignty over internet.

    So, if a person is doing on the net anything that might be perceived shady, it would be best to avoid travelling abroad, at least outside the Schengen area.

    I would not want to be Mr. Dotcom. His actions, however you embellish them, would not carry a prison term of over two years here in Finland. Four, if you can tie in a gross fraud. In the US, the things are much worse for Mr. Dotcom.

  3. SHG

    No doubt Mr. Dotcom will face substantially more than a couple of years in the pokey. Heck, he’ll be a guest of the government for a couple of years before he gets to trial.  But this raises two interesting questions. What if some sovereign sets up an place, say a cozy little island, where internet entrepreneurs will be free from extradition by, oh, say the United States?  Richest place on earch, or mostly likely to be invaded?  Or will the United States take another page from the terrorist handbook and use extraordinary rendition?

    This flat world of ours raises some very interesting questions.

  4. me

    Other than the doing-damage-by-accusation aspect, the reaction here exposes an interesting problem of scale.

    Closing megaupload is akin to seizing every written word ever put to paper in response to a complaint that a bad guy had at some point probably written something down.

    Physically, that’s infeasible, but with the multiplier modern tech carries, it is time to rethink the damage prosecution alone will and can do to third parties.

    [Edit. Note: I post this because it’s a great comment, but if you fail to leave a legit email address again, your comment will not post, no matter how good the comment.]

  5. SHG

    Taking down some horribly evil, but otherwise inconsequential, website wouldn’t make the same statement as taking down the biggest, baddest guy in town. That’s how messages are sent.  The point of this indictment is that the US owns the internet, and while others may have questioned who’s in charge before, now they know.

  6. Leo

    Scott – I appreciate your perspective on the Megaupload issue.

    I often see a world of difference between the mindsets of civil attorneys and criminal defense attorneys; this difference was apparent in the reactions I saw to the Megaupload indictment.

    I’m curious to see how this plays out in future US v. Internet suits. US law already seems to be the de facto rule of the internet – will it turn out to be de jure as well?

  7. SHG

    The question to me will end up being whether might makes right. The US wants control. Will the rest of the world allow it?  If not, will the US take it anyway?  Then again, everybody (other than criminal defense lawyers) seems to think it’s fine for the government to be in charge (because order is good and let’s us sleep safe in our beds at night), until it’s their turn to get burned. 

  8. Leo

    A question that boarders on the absurd: What if Mr. Dotcom had purchased the Principality of Sealand and lived there? I wonder whether they have an extradition treaty?

  9. Jaswinder

    I read in one of the many articles covering this case that the reason why the FBI was able to get involved was because MegaUpload was leasing servers in Virginia, which gave the US jurisdiction. Would the government have been able to take down MegaUpload had the servers been exclusively hosted offshore?

  10. SHG

    They have to allege some basis for jurisdiction, and the Virginia servers are an easy out. Had they been offshore, then they would have alleged intentional and foreseeable harm to United States corporations/citizens as the basis. There’s always a basis, if you look hard enough and don’t mind straining reality to meet the need.

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