by Mike Masnick
Back in April, a US judge pointed out that US criminal law requires serving those accused of criminal activities and Megaupload, as a foreign-based corporation, might not be subject to such service -- potentially killing the lawsuit against the company (though, not against the individuals who run the company). The Justice Department has now hit back with a filing mocking the idea that Megaupload could avoid criminal charges as a company (pdf and embedded below).
The filing focuses on how Megaupload had extensive operations in the US, including having many of its servers hosted here -- and even had two separate CEOs at various points who reside in the US (including Swizz Beatz, who the filing notes, has refused to cooperate). It further argues that there is no rush to serve the company, and that it can do so once the execs are extradited to the US -- or it can serve them at the office listed in Hong Kong. Admittedly, part of this fight is really about process technicalities, so I wouldn't make too big a deal of them. However, there are legitimate jurisdictional questions about what the standards are if the US can go after a company anywhere in the globe, just because it's online. That could certainly come back to haunt the US, as US companies are frequently targeted by other countries. Having a case like this could be used as justification to retaliate against US companies.
The filing also highlights something that is somewhat self-contradictory about the US's case. In an effort to argue US jurisdiction, the DOJ argues that Megaupload has been involved in civil lawsuits (on both sides) in the US. That is true... but that seems to weaken another contention in the DOJ's wider case: that it had to take the actions it did because Megaupload was somehow "unreachable" as an offshore "rogue site." The actual evidence, as noted by the DOJ itself in this filing, proves otherwise.
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