Law expert questions US 'pressure' over Dotcom

HARRY PEARL
Last updated 05:00 17/07/2013
Neil Boister
CHRIS HILLOCK/Fairfax NZ

ON THE CASE: Waikato University law professor Neil Boister says New Zealand has been put under pressure to co-operate with US law enforcement in the Kim Dotcom case.

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A Waikato expert in transnational crime says the United States case against Kim Dotcom has subjected New Zealand to the "long arm" of US law enforcement - and many New Zealanders may not be comfortable with the consequences.

Waikato University law professor Neil Boister says New Zealand has been put under pressure to co-operate with the US in a case he described as being at the "frontiers of criminality".

"Are we comfortable of extraditing for a case like copyright?" Dr Boister asked.

Mr Dotcom and six co-accused have been indicted with conspiracy to commit copyright infringement, along with four other charges, under US law.

Mr Dotcom is scheduled to attend an extradition hearing in August.

As a result of the case, Dr Boister said New Zealand has now found itself subject to the "long arm" of US law enforcement.

"In other words, they are asking us to do things to people within our jurisdiction because they want to take them back to the United States and prosecute them.

"In South America they are very used to this - they're constantly being bombarded with these types of requests. And Canada too."

New Zealand did not have similar experience with these types of extradition requests, Dr Boister said.

The case against the flamboyant internet mogul has led to myriad court cases, raised questions about how competent policing was in the case, and sparked a review of the Government spy agency.

Dr Boister is set to discuss all of that in his inaugural professorial lecture at the University of Waikato this month.

Dr Boister said there was "a chance" Mr Dotcom would be extradited, but the major problem for a successful prosecution hinged around proving "double criminality". Under US law, internet service providers (ISP) and cloud storage providers, like Megaupload, are not criminally liable if they are only providing facilities for the uploading and downloading material.

As long as they do not "consciously" have illegal material on their servers and respond to all instructions to take such material down, they have immunity.

New Zealand has similar immunity provisions built into corresponding laws, but these applied even if a person was "conscious" that they possessed illegal material, Dr Boister said.

The US and New Zealand laws do not match, he said. "That is going to be a problem . . . because the law of extradition requires normally that the crime for which he is being extradited, is at least criminal under similar hypothetical circumstances in New Zealand."

harry.pearl@waikatotimes.co.nz

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