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Michael Geist's Blog

Class 10 - January 16, 2012



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Ontario Court Rejects U.S. Government Demand for Full Access to Megaupload Servers Seized in Canada

Many readers will recall that nearly one year ago, the U.S. government launched a global takedown of Megaupload.com, with arrests of the leading executives in New Zealand and the execution of search warrants in nine countries. Canada was among the list of participating countries as the action included seizure of Megaupload.com servers located here. While the failed attempt (thus far) to extradite Megaupload mogul Kim Dotcom to the U.S. has attracted the lion share of attention, the U.S. government has quietly been working to obtain access to all the data stored on seized computers in other jurisdictions.

Last week, an Ontario court rejected a request to send mirror-imaged copies of 32 computer servers to authorities in the U.S., indicating that a more refined order is needed. Megaupload did not contest the seizure of the computers. It did argue, however, "that there is an enormous volume of information on the servers and that sending mirror image copies of all of this data would be overly broad, particularly in light of the scantiness of the evidence connecting these servers to the crimes alleged by the American prosecutors." The company added that the volume of data on the 32 servers was equivalent to 100 laptop computers and that a review of the content by the court was appropriate.

In response, the judge asked the two parties to refine the proposed order by limiting what is disclosed to what is relevant to the case. The conclusion states:

the appropriate balance of the state interest in gathering evidence and privacy interests in information can be struck by an order that the servers be brought before the court pursuant to s.15 (2) so that the court can make an order refining what is to be sent. By this, I do not mean that at this stage the servers must physically be delivered to the courthouse. The application for a sending order is adjourned without a fixed return date, returnable on 7 days’ notice. If counsel are unable to agree as to how the scope of relevant material is to be defined then the matter may be brought back before a judge of this court for determination of that issue.
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