Megaupload users who want their data have to pay (or sue), feds say

Filed Under: Data loss, Law & order

Megaupload logoUS federal prosecutors don't mind if Megaupload users get their files back - as long as they either pay for the forensic expertise to dig it out, or sue Megaupload or Carpathia Hosting, the server farm, to get it.

The government explained its position on Friday, when it responded to a motion filed by the Electronic Frontier Foundation in late March on behalf of Kyle Goodwin.

Goodwin is a sports reporter who used Megaupload for storing and transferring video files for his business: a small outfit called OhioSportsNet that reports on high school sports in Ohio.

On January 19, the FBI shut down file-sharing site Megaupload.com on criminal copyright infringement charges, executing search warrants on the company's servers and thus locking out all Megaupload customers.

Unfortunately for Goodwin, that's the same month when his hard drive crashed, taking backups of the large video files his business relies on with it.

The motion sought a workable solution for users like Goodwin to get their data back and accused the government of violating the constitutional rights of innocent Megaupload users by its use of overly broad seizures of domains and servers.

In its response, the government said it simply doesn't have Goodwin's files.

Attorney General Neil MacBride wrote:

Government response

The government does not possess any of Mr. Goodwin’s property, nor does it seek to forfeit it. The government also does not oppose access by Kyle Goodwin to the 1103 servers previously leased by Megaupload. But access is not the issue – if it was, Mr. Goodwin could simply hire a forensic expert to retrieve what he claims is his property and reimburse Carpathia for its associated costs.

The government doesn't want to touch those "associated costs" with a 10-foot pole, MacBride wrote, what with all the "identifying, copying and returning," which would be "inordinately expensive":

Mr. Goodwin wants the government, or Megaupload, or Carpathia, or anyone other than himself, to bear the cost.

MacBride maintained that Goodwin can sue Megaupload or Carpathia, since they provided the service and should have had an insurance policy to cover an event such as this.

Carpathia hosting logoAlthough US law allows third parties with an interest in forfeited property to make a claim, the government is arguing that it only copied part of the Megaupload data and that the physical servers were never seized.

Megaupload's 1,103 servers, holding more than 28 petabytes of data, are still held by Carpathia Hosting.

Slashdot commenter chrb noted that the Fifth Amendment to the US Constitution states that:

No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Chrb argues that the digital files in question "are the same as physical property" and that the wording of the Fifth Amendment doesn't specify that the government must actually have seized the property but that it must merely have caused a person to be deprived of that property.

Chrb continues:

By their own logic, through the actions of the government, Mr. Goodwin has been deprived of his property, and without his right to a jury trial.

But as Slashdot commenter necro81 goes on to argue, "due process of law" doesn't necessarily equate to a jury trial.

A jury trial is just one example of a legal process that can result in deprivation of property. Search warrants are another, as necro81 notes:

...property gets seized as part of a search warrant all the time, as has happened in this case. Sometimes it is eventually returned, sometimes it is permanently retained as evidence. None of that requires a jury trial, even though it's often involved.

After all is said and done, it's easy to blame the victims in the case of Megaupload. After all, what kind of idiot uploads their data to the cloud without keeping an offline backup or the original?

Angry computer user, courtesy of ShutterstockPeople who don't know better, that's who, comments Slashdot poster ccguy. Perhaps they're ignorant in the field of IT and storage/backup, but who amongst us has all of our assets in places that can't possibly fail?

Let he who is without sin cast the first stone, while the rest of us back up anything we send to the cloud and do some homework on our banks and our insurance policies.

Besides, Mr Goodwin did, in fact, back up his files onto a hard drive. As luck would have it, his hard drive crashed at the same time as Megaupload was shut down.

What's the takeaway? We're only safe if we have three backups, or five, or ten?

There's simply no foolproof number of backups if luck is against you.

Good luck, Megaupload users who can't get at your data and, for whatever reason, lack a backup. With this kind of response from the government, luck seems to be the only thing that might get you your data back.

Angry computer user, courtesy of Shutterstock

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17 Responses to Megaupload users who want their data have to pay (or sue), feds say

  1. Freida Gray · 858 days ago

    Would using a secondary e-mail account to e-mail himself his data in case the hard drive crashed have worked for him?

    • Greg · 857 days ago

      I don't see why you've been downvoted - Mr Goodwin was working with video files which will have, undoubtedly, been very large in size (over the 100MB mark). As mail servers have file-size limitations around the 10-50MB mark and how MIME bloats files that are attached to emails due to the way it encapsulates the data, emailing these videos to himself as a form of backup would not have been a viable solution.

      If he were backing up documents, images etc that are smaller than 10MB in size, then emailing the files to himself could be a viable backup solution, however I would personally never rely on this being my only backup of a file.

  2. Saradas · 858 days ago

    Usually, e-mailing information is limited by data size. With his major data source being video files, he could easily have tens of gigabytes of information in a single file, which is often far too large to be e-mailed. It's not a bad idea for smaller files, though, and it's a method I often use myself.

  3. Petri · 858 days ago

    Er... I think the point was that the reason he didnt keep the files in email, was that they were so big... Even though I don't know what is gmails' capacity of receiving email attachment, but unless you have 2 gmail accounts it would be hard to send 100-1000 mb attachments.

    In addition to that we come to the first question, how many backups is enough? Normal person doesnt take triple or quadruple backups in the first place, and shouldn't need to.

    And what about those who upload theyre data to cloud without backup... Er, users of microsofts' and googles' cloud storage applications perhaps? Like office365 and google drive... You don't pay monthly fees for clouds storage, if you have your files on offline backups, do you? Why would you, it would be cheaper just to make 2 offline back ups, then?

  4. Sharp · 858 days ago

    Well at least we know the US governement is not getting any smarter. Dumb idiots realize that they couldn't do much, due to his ToS, so they are hoping someone can find a way to bankrupt the guy, by telling the people to Sue, because you know the government gets money out of this process too.
    Looks like a lost cause, but really the only source that is screwing the people is the government.

    Personally if I was him I would open it as a new company, and then release the servers under the new name reopening all the data that everyone thinks they lost. This way if the government steps in everyone can get the Data they lost at least for a short time to pull back the data as the government takes the IPs again. Since the government said the Company still owns the servers and Data I don't see why they can't reload everything up as a new IP and website name. I would even up this with security. If your willing to pay $10 to get your data back it's there.

    • Sharp · 858 days ago

      I would also be suing the government. It's like they want to limit what you can see and know, because eventually people will open their eyes, and realize that the government is just greedy and there to protect only themselves.

    • Lisa Vaas · 858 days ago

      Actually, I saw a story yesterday about the NZ courts being ready to tell the US to give them the servers. Or was it all the data? Whichever makes more sense. At any rate, it's evidence. If the NZ government can get it, maybe Doctcom can get his hands on it...

  5. Pavel · 858 days ago

    The article states: "After all is said and done, it's easy to blame the victims in the case of Megaupload. After all, what kind of idiot uploads their data to the cloud without keeping an offline backup or the original?". Please explain Carbonite online backup that is a cloud service for backup. What would happen if the FEDs shut down Carbonite for back up storage of porn. When my AT&T email account got hacked and all the stored emails destroyed and the account reconfigured to forward all the incoming emails; AT&T stated that they could not recover the lost email files. Sure AT&T reconfigured the account; but I had to generate all new passwords, notify the credit reporting agencys, notify the banks and cdreit cards as well as change all the passwords in all of them. All of this is basically in a cloud server at who knows where; use them at your own risk.

    • Internaut · 858 days ago

      Being a Sports writer doesn't make him a backup guru, nor does it make him an idiot. Wow - someone does something different than someone else, and that makes them an idiot?

      Be nice to those you call "idiots", they may win the lottery.

      • GoMay · 834 days ago

        Agreed he was backing up his data in what he thought was a good fall back scenario which as his luck turned sour was not. Doesn't make him an idiot and like mentioned previously what if DropBox, or SugarSync had the same issue? They should have some kind of measure to validate what's being requested and give it back if its not material that wasnt received illegally. But on another note i was thinking like why didnt this dude just upload his videos to youtube mark them as private and they also allow you to bring videos back down after they're uploaded.

  6. Internaut · 858 days ago

    Just another action of the bigger bullies punching out the public in the liver over _possible_ picayune copyright infringements. The bullies being the US Feds.

    If the bullies get away with this, it may set a precedence. I have never seen US government ever care about or understand the word 'integrity'. However, every day there is evidence that they do understand and care very much for majority of big-time campaign contributors out of Hollywood and schmoozing lobbyists.

    It's here. Has been for a long time that everyone, no matter who, or where they are, is guilty until proven innocent.

    All this action will undoubtedly do what has happened in the past, and drive public communication underground. The idea of what the Internet now provides was just sci-fi adventure stuff just 25 years ago. I predict, and hope, that government censorship, intervention, and underhanded bullying will cause something newer and better than the Internet.

  7. Sum Guy · 858 days ago

    In America there is a innocent until proven guilty law, but this is clear proof that does not exist. What the government should do is allow or put back all the servers it took down. That would be the easiest and most cost effective remedy. I know it may be difficult to get all those servers back up. The amount of people who were using the site and the potential damages would be much more than the labor to put it back on line.

    The government has destroyed a good thing. YouTube has tons of infringing content on it right now, as per Kim Schmidt-Dotcom's argument. Search any song and you will find dozens. Most are not authorized. Its impossible to control that many accounts without a few slipping by. Copyright is also out of control.

  8. Tonybaloni · 858 days ago

    The US government seems to think it's above everybody including those who are supposed to have the power to elect them.

    Maybe hackers could do the same to the government in a tit for tat strike.

    OOPs forgot only the government of a so called free society are above the law.

    What a joke.

  9. Eric T · 858 days ago

    The US stance is quite appalling actually. Imagine if this was Amazon cloud services where thousand of businesses would loose their online presence due to allegations of copyright infringement. Basically the US stance is to move cloud hosting services off shore totally, as the liability to host on servers on the US is too risky on whatever occurs by third parties. I know what criminal copyright infringement is, and that it suggests the infraction occurred by MegaUpload themselves. But it still leaves a bitter taste that hosting any servers in US jurisdiction could be forfeit without criminal prosecution and lead to loss of business, if those servers are hosted in the US.

  10. Lasa Bailey · 858 days ago

    Wait on, the government shut them down, should not the government be responsible for the loss ???
    As the government caused the loss??

  11. Geir laastad · 855 days ago

    Mr Goodwin could also probably succeed getting all his data back from his crashed harddisk, simply by ordering a specialist forensic firm to recover it. The best of these firms removes the magnetic discs from the harddisk, inside a clean room and mounts them in a jig and carefully extracts the data. It's not cheap, but probably less fuzz than suing the US god, ehh. Govt.

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.