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Judge Orders TorrentSpy to Turn Over RAM
virgil_disgr4ce writes "In an impressive example of the gap of understanding between legal officials and technology, U.S. Magistrate Judge Jacqueline Chooljian 'found that a computer server's RAM, or random-access memory, is a tangible document that can be stored and must be turned over in a lawsuit.' ZDNet, among others, reports on the ruling and its potential for invasion of privacy."
It should be Law that legal officials of all sort have to have a "qualified technical advisor" present when giving any court order or summons. Mind you we geeks would then lose our main advantage when it comes to skating on the fringes of laws *cough"mp3 collection"cough*.
I am Jack's complete lack of surprise. -Fight Club
Keep in mind this is a magistrate judge, which is one step below a trial court judge (who is already generally below 2 levels of appeals courts). Magistrate judges work on a very fact-specific level, so I don't think this ruling would make even persuasive authority. I think I cited a magistrate judge like once, and that was just because the subject was so obscure I couldn't find anything else...
It also says
(3) the data in issue which is currently routed to a third party entity under contract to defendants
That's the achillies heel, if they are pulling the data out and transmitting it already, they are sunk.
People in cars cause accidents....accidents in cars cause people
Wow, I did not know that.
But then all you get is a snapshot of what the server was doing at the instant you turned it off, which would be AFTER all the programs terminated. And at termination the OS would probably re-use that RAM for its own shutdown code.
Then you need to wade through a huge pile of binary (ok HEX) printouts to try to determine the contents.
If the server held 8GBytes, and you get 16 bytes per line, and there are 66 lines per page, then you would have 8,134,407 pages to read through.
Of course you could put this on a drive, then try to use some sort of search program, but it is not trivial. Memory fragmentation(1), binary representation of text, object storage (rather than straight characters) would all contribute to the confusion.
1. Yes I know that the OS tracks the fragmentation along with pagination, but where is that in RAM?
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I am a programmer. I am paid to produce syntax not grammar. Deal with it.
While industry experts lamented the judges decision in this case, this newest revelation, that computer RAM should be turned over as part of discovery, proves that she has no concept of the issues she is addressing in her court. This provides fertile grounds for appeals as she is obviously dealing with issues she cannot even comprehend.
The fact that she has ordered the defendant to CREATE evidence (log files), in order to turn it over to the plaintiff as part of their discovery request is absurd.
Good security is based upon reality and common sense. Common sense is a function of having common knowledge.
I am sure that there will be a lot of "snicker" replies -- how can the magistrate be so stupid...
But this is an interesting idea. RAM holds information, specifically the IP addresses in this case.
"Sorry, we don't have the IP address available; they are never recorded". To which the reply is: "They ARE recorded. In RAM. So copy RAM".
Why this is a useful result: It means that it *could* become illegal to build a computer that has "unreadable" memory, because *that* memory may be where information needed by a court is being kept, and it needs copying.
Which means that "secure writeable storage" for DRM becomes illegal (at least on computers).
But, back to the topic, the magistrate is dead on. Of course, the RAM could simply be dumped onto a hard disks, lather, rinse, repeat. I don't think INTERPRETATION of the document was discussed!
Just another "Cubible(sic) Joe" 2 17 3061
The SonicBlue / ReplayTV case in 2002 involved an order by the court to ReplayTV to create the technology to record information about subscribers for purposes of determining how much usage was violating the TOS and the law.
From the defendant's brief in that case, which makes it quite clear that the information does not exist and would involve an affirmative duty to surveil:
Federal Rule 34 Neither Requires Nor Authorizes An Order To Create Records That Do Not Exist.
Not surprisingly, Plaintiffs cite no authority for such an order. It is well settled that a party is not required to create, either in paper or electronic form, data that does not currently exist within its possession. Steil v. Humana Kansas City, Inc., 197 F.R.D. 445, 448 (D. Kan. 2000) (party "cannot be compelled to produce documents which do not exist" ). Rule 34 "only requires a party to produce documents that are already in existence." Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 310 (D.D.C. 2000) (emphasis added). "A party is not required 'to prepare, or cause to be prepared,' new documents solely for their production." Id. Plaintiffs misunderstand Rule 34 and the law relating to the discovery of data compilations. It is true that Defendants may be required to produce both hard copy documents, and electronic data, that are stored in Defendants' own files and computers. But, with the sole exception of the limited my.ReplayTV.com information discussed below, the information sought by Plaintiffs is not "electronically stored" on Defendants' computers. It does not exist anywhere yet. It does not even exist on individual consumers' PVR hard drives, much less on Defendants' computers. And if the information is created, and a program written to log it in the future, it would exist on a consumer's personal property, not on ReplayTV's computers.
Rather, Plaintiffs are asking the Court to order Defendants first to write a program to implant in a consumer's ReplayTV unit in order to create and store the data, and then to write software to collect the data from consumers (without further notice to them) and disclose it to Plaintiffs. Neither Rule 34 nor case law obliges Defendants to take these extraordinary steps.
--originally provided by Mike Godwin in SonicBlue discussion, Cyberia-L
a r b o r l a w -- legal blog for entrepreneurs and small business
What's next, being ordered to "log" the electrical signals on your phone line?
Actually QAMQADM, the 'M' is for Modulation. It looks vaguely arabic... Qam q'adm.
True confidence comes not from realising you are as good as your peers, but that your peers are as bad as you are.
OK, so is a pregnancy in Nevada considered sufficient evidence to convict, or can you argue that the condom must have failed?
Presumably Nevadans are becoming a rare species....as should Washingtonians, unless they are sensible enough to go out of state for the big night. Although I suppose there is some obscure law about transporting people across state lines for immoral purposes.
I've read recently (was it on /.?) that in order for 4th amendment protections to apply, there has to be a reasonable expectation of privacy.
When you send unencrypted bit streams over equipment that is owned by a third party, you have no reasonable expectation of privacy.
If you want to create a reasonable expectation of privacy, use a privacy envelope of some sort. E.g., PGP. Otherwise, the email you send has even less legal protection than snail mail. AS IT SHOULD BE.
A better headline would read " Judge Orders TorrentSpy to Turn Over RAM dump" That would have made a lot more sense, and keep the kneejerks to a minimum.
Here I come to save the da... *thud*
I gotta get me a shorter cape.
He's lived all his life in a train station. Ever see one of the Grand Central Station boards flip ALL the way through the destinations before resetting itself back to nothing? I used to think that was so cool... -Matt