Ontario court bars FBI from handling Canadian data in piracy case

Ontario’s highest court has reversed an order by a lower court to allow a U.S. Federal Bureau of Investigation team to investigate and prepare a report on seized data in a copyright infringement case. The case involves the now-defunct file-sharing site MegaUpload, its founder Kim Schmitz and data from 32 servers in an Equinix Inc. data centre in Toronto retrieved in 2012 by the RCMP. At the request of the FBI, the Minister of Justice in 2013 applied to have the servers transferred to the United States. “However … the servers contained a mass of information, much of which was the property of third parties and had no possible relevance to the U.S. investigation,” which meant the information couldn’t simply be handed over under the law, according to the Friday decision. To address that, in 2015, the Ontario Superior Court took the advice of the Minister of Justice and ordered an FBI “clean team” to separate the irrelevant from the relevant data and prepare a report “to assist the sending judge in deciding what material should be sent to the United States.” The Ontario Court of Appeal determined that the lower court judge erred in that determination, stating the FBI was too closely associated with the respondents in the case for the discovery process to be fair. “It is offensive to the appearance of fairness, and specifically the appearance of judicial impartiality, to have an entity closely associated with one of the adversaries provide the judge with the necessary report,” Justice David Doherty noted in his reasoning. Though Doherty said that there are circumstances where foreign authorities could have a unique expertise that would be valuable in the investigative process, no such case was made for the FBI. He also noted that cost considerations may be relevant, but must be “prohibitive before it could justify appointing the affiliated entity.” He added that the lower court judge should’ve started from the point of view that the investigating party should be independent of the interested parties in the case. Kim Dotcom, the online alias of Schmitz, ran websites that hosted alleged copyrighted works, including movies and music. The sites had about 50 million daily users and copyright holders’ losses were estimated at approximately $500 million over a given two-week period, court documents said.

Ontario court bars FBI from handling Canadian data in piracy case

Brief | April 3, 2017

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Ontario court bars FBI from handling Canadian data in piracy case

Brief | April 3, 2017

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