[Update: Australian paper The Age reported that U.S. prosecutors have drawn up a secret indictment against Wikileaks’ founder Julian Assange; it is possible that Wikileaks, not Megaupload, is the subject of the Google (NSDQ: GOOG) dispute.]
A pair of cryptic court filings surfaced in Virginia this week that suggest Google is in a fight with the federal government over Megaupload, the file-sharing site that was shut down in a dramatic raid in January.
It appears that the FBI likely demanded that Google turn over Kim Dotcom’s email account and any related information, and then forbid the company to notify him of the investigation. In the past, companies — notably Twitter — have been aggressive in challenging gag orders so that they can notify customers about government searches. Such notification gives subscribers the option of challenging the searches in court.
The new filings are two orders in which U.S. Magistrate Judge Thomas Jones Jr. refuses to extend a gag order that the government has imposed upon Google.
The gag order forbids Google from telling a subscriber that an account has been the target of a search warrant and subject to a § 2703(d) investigation — a controversial search procedure that gained attention when the Justice Department used it to obtain the Twitter accounts of people tied to WikiLeaks.
The judge does not identify the Google subscriber but there is strong circumstantial evidence to suggest the case is tied to Megaupload and its controversial founder, Kim Dotcom who is currently facing extradition charges in New Zealand.
First, the orders came from the US District Court for the Eastern District of Virginia which is where an indictment was unsealed against Dotcom and Megaupload in January. Secondly, the two-page orders refer to recent events to explain why the government’s investigation will not be compromised by a disclosure:
The sole potential problem that notification might create that was raised by the government with specificity in its unredacted brief has now been eliminated by subsequent events. […]
The existence of the investigation in issue and the government’s wide use of § 2703(d) orders and other investigative tools has been widely publicized now. It is difficult to imagine circumstances in which this Google subscriber, as described by the government in its brief, has not assumed government access to this account and acted accordingly
A connection between the Google court orders and Megaupload is for now entirely speculative, but it is hard to think of another secret investigation that has recently been “widely publicized.”
Christine Chen, Senior Manager for Global Communications and Public Policy, said by email that Google does not comment on specific cases.
The court papers also show that federal agents began their search of the suspect’s Google accounts in July of 2011. The Megaupload investigation reportedly began in 2010.
The seizure of Megaupload’s servers and the arrest of Kim Dotcom and other company executives made global headlines in January. The case received additional attention due to the outlandish character of Dotcom, an enormous man nicknamed Dr. Evil who was reportedly found in a panic room clutching a shotgun at time of his arrest in New Zealand (there are conflicting reports about the gun). The Megaupload episode also led the hacking collective Anonymous to launch a wave of retaliatory attacks that temporarily took down the websites of the FBI and the Justice Department.
Today’s orders also states that Google may notify its subscriber unless the government appeals within 14 days. The rest of the case for now remains under seal.
Here is a copy of one of the orders: