Digital Legal MegaUpload Timeline Top Stories

Former New York judge calls US prosecutor’s attitude to lost MegaUpload data “outrageous”

By | Published on Thursday 14 June 2012


A former New York federal judge has criticised the prosecution in the MegaUpload case for failing to return legitimate data to former customers of the controversial file-transfer platform, who lost access to their files in January when the US feds swooped to shut down the service and arrest its key execs, accusing them and the company of copyright infringement, money laundering and racketeering.

As much previously reported, a warehouse full of servers owned by a company called Carpathia Hosting that contain much of the data stored on the MegaUpload cloud locker platform remain switched off. Former customers who lost access to their files have been calling on the authorities to return their data, but the authorities have washed their hand of the digital stash. The case has gone legal thanks to one former MegaUpload customer called Kyle Goodwin, who is being supported by the Electronic Frontier Foundation.

The EFF recently requested that the US courts take direct action to reconnect Goodwin with his files, a previous judicial demand that involved parties reach a voluntary agreement on the matter having not been met.

But, responding to that request, American prosecutors last week said that court action was not required, and that affected customers should either hire, at great expense, IT experts to go into Carpathia’s warehouse and retrieve their data, or should just sue MegaUpload and/or its server provider for damages. Though, as the prosecution have themselves previously pointed out, technically MegaUpload’s terms and conditions ensure the digital firm was not liable for lost data. So that doesn’t really help.

Talking to Wired, Judge Abraham David Sofaer says that that response by prosecutors is “really quite outrageous”,adding that he believes the American authorities have not yet learned about the realities of the digital world. He notes that if the assets of a bank were seized in a criminal investigation, the authorities would definitely take it upon themselves to help former customers reclaim their deposits, and suggests that their failure to do so in this case shows that prosecutors simply don’t understand the value and importance of digital data.

Sofaer: “[The prosecution’s behaviour] is really quite outrageous, frankly. This is a perfect example of how they are failing to apply traditional standards in the new context”. Referencing the banking example again, he continues: “You can see very clearly that the government is acting in a manner that is indiscriminate [here, and] that’s a dangerous road”.

Sofaer is now donating his expertise to the EFF for free, and is calling for the courts to appoint an expert to oversee a temporary amnesty that would allow former MegaUpload customers to reclaim any legitimate data from the file-transfer site’s former servers. It remains to be seen how the courts respond.