It’s been almost a year since Kyle Goodwin lost access to the lawful property that he stored on Megaupload. EFF, on his behalf, has asked the Court to order his data returned, and, more recently, has also asked the Court to unseal the confidential search warrants surrounding the third-party data at issue.  And it appears Mr. Goodwin is making some headway: the Court is at least contemplating holding a hearing to get to the bottom of what really happened when the government shut down Megaupload, seized its assets, and deprived millions of customers of their property.

Today, Mr. Goodwin filed a brief outlining what that hearing should cover, and how, so that the court can get what it needs to help ensure Megaupload’s customers finally get their stuff back. For one thing, we think the court needs to hear from government employees, including members of the FBI, who were involved in the January searches and seizures that left Mr. Goodwin without his data, and from an independent expert who can discuss what the government could have done to avoid this scenario and what it can do now to make up for the damage it caused.

In the past, courts have required the government, when executing digital searches and seizures, to be mindful of and segregate third-party data to protect privacy concerns. We think the same principles should apply to protect property concerns as well. More and more people use the cloud to store their digital property everyday. This is good news for innovation and for the economy.  To help ensure intellectual property enforcement doesn’t undermine that growth, the government should implement commonsense procedures to protect cloud storage users who may get caught in the crossfire. The government failed to do so in this case.  The court should require it to do better, now and in the future.