David Fisher: Questions to ponder as appeal process begins

Kim Dotcom. Photo / Greg Bowker

It was always a longshot for Kim Dotcom and others when the evidence against them included emails such as: "We are the pirates here."

The FBI's trawl through the online chat accounts of Dotcom and the other accused provided rich fodder to argue the case should be heard at a trial in the United States.

The question of whether that evidence is any good was never going to be argued here.

That's what a trial is for, and the law on this issue suggests the Megaupload defendants will have a much better shot of arguing against the FBI case.

From the US side, Crown lawyers had to deal with copyright not being an extraditable offence. They told the court Megaupload was a "conspiracy to defraud" rightful copyright owners.

Judge Dawson accepted the argument, based on a "liberal interpretation of the (Extradition) Treaty".

Stand by for the appeals.

In the meantime, take a breather and consider some unanswered questions after four years on the Dotcom rollercoaster.

How was Dotcom able to be in New Zealand for the raid?

He was given residency by Immigration NZ - with the knowledge of then Immigration minister Jonathan Coleman - despite Dotcom's declaration he had convictions for hacking and insider trading, wiped by Germany's clean slate law. Immigration NZ gave him residency even though it knew Dotcom was being investigated by the FBI.

Immigration NZ knew because it was told by the Security Intelligence Service which also told police. Then, when Dotcom arrived in December 2010, he declared additional sharetrading convictions from Hong Kong. A deportation inquiry took place, with Mr Coleman deciding in February 2011 it was fine and Dotcom could stay. Dotcom himself has said this makes no sense. Immigration NZ's review of Dotcom's residency doesn't include its handling of the SIS information. A fresh review should be carried out.

Would the spy agencies have been reformed without Dotcom?

No. The revelation of illegal electronic spying by the GCSB after High Court proceedings triggered a series of events which have completely changed the face of the intelligence agency. It led to an inquiry by now-SIS director Rebecca Kitteridge which resulted in a damning report every other government agency must look at and wince.

The GCSB was rocked to its foundations. Kitteridge's review appears to have raised questions about the SIS, to which she was then appointed director and also instituted massive change.

Why has there not been a publicly-released review of the police raid?

The overly-dramatic helicopter assault at dawn by the submachinegun-toting elite anti-terrorism police squad on January 20, 2012 undermined the faith many had that it was a righteous operation. Nothing which emerged seemed to warrant such an excessive approach. The details were picked apart in the High Court, and none of it reflected well on police.

Claims of risk to police fell flat, particularly when it emerged an officer had visited the day earlier, at Dotcom's invitation, and had done a recce of the mansion for the raid.
The police actions in the Dotcom case should be independently reviewed.

Did John Key know about Dotcom before the raid?

This was 'The Big Question' for some time. The Prime Minister says no, Dotcom says yes.
Consider - Dotcom moved into the most expensive house in Mr Key's electorate and upset enough locals they rang the Prime Minister's electorate office repeatedly to complain.

Meanwhile, Key's Ministers have a difference of opinion over allowing Dotcom to buy the mansion and, when it is decided, one Minister's office rings one of the Prime Minister's aides to let him know.

Also, the GCSB ran its illegal operation against Dotcom while Key was Minister of the intelligence agencies. Did he know? In my opinion, someone might have mentioned something but I doubt it registered in any meaningful way. Does it matter? Not really.

Is there a conspiracy against Dotcom?

Of a sort, in the sense Hollywood has had great success lobbying the US government over copyright, to the extent the White House appointed a copyright tsar and elevated the issue to one of national security.

From this position, the US justice apparatus took a world view on copyright infringement.
The global adventurism at play became clear a a few years later when Dotcom's prosecutor spoke of how internet traffic passing through West Virginia, which is swollen with servers, gave the US jurisdiction on the world.

• David Fisher has covered Kim Dotcom since revealing in 2011 he was granted residency under the government visa scheme for wealthy foreigners. He wrote The Secret Life of Kim Dotcom, which covered Dotcom's history, the birth of Megaupload and the first year of the FBI case.