Court Sets Rules For RIAA Hard Drive Inspection

NewYorkCountryLawyer writes "In a Boston RIAA case, SONY BMG Music Entertainment v. Tenenbaum, the Court has issued a detailed protective order establishing strict protocols for the RIAA's requested inspection of the defendant's hard drive, in order to protect the defendant's privacy. The order (PDF) provides that the hard drive will be turned over to a computer forensics expert of the RIAA's choosing, for mirror imaging, but that only the forensics expert — and not the plaintiffs or their attorneys — will be able to examine the mirror image. The forensics expert will then issue a report which will describe (a) any music files found on the drive, (b) any file-sharing information associated with each file, and any other records of file-sharing activity, and (c) any evidence that the hard-drive has been 'wiped' or erased since the initiation of the litigation. The expert will be precluded from examining 'any non-relevant files or data, including ... emails, word-processing documents, PDF documents, spreadsheet documents, image files, video files, or stored web-pages.'"

Comments

This can't be true...

[stephanruby]

This makes way too much sense.

New defense tactic...

[Volante3192]

Just because my PDFs play in winamp doesn't mean they're music files!

Re:New defense tactic...

[Rockoon]

rename *.mp3 *.doc

Re:New defense tactic...

[TinBromide]

The expert can run an md5 hash list containing the signatures of all the copyrighted music that the RIAA has collected over the years and compare the results against the contents of the hard drive. You can name a file anything you want and its content based md5 will stay the same. Also, you can rename a jpeg to a .doc and the first 4 bits of the file will still reveal it as a jpeg. Every piece of modern forensics software is capable of doing the above, and most do them automatically.

If you take an MP3 file and rename it personal.doc, it will still show up in the media bucket and be declared as an audio file in the forensic software I am professionally experienced with.

Wiping the Hard Drive After Litigation

[Anonymous Drunkard]

(c) any evidence that the hard-drive has been 'wiped' or erased since the initiation of the litigation.

Just curious: Let's say someone wanted to do just that - wipe or erase the hard drive since the initiation of the litigation.

Theoretically, couldn't a person just set the BIOS clock to a date and time prior to the legislation, do multiple shreds and formats on the HDD, reinstall the OS with the BIOS clock still 'in the past', and have it seem as though nothing changed since the initiation of the litigation?

It would seem to me that if the BIOS clock was set to a prior point, that everything else on the HDD would follow. The BIOS clock has no intuitive knowledge of time, it only knows what it's told.

All theoretical, of course. No one would actually do such a thing, of course...

Re:Wiping the Hard Drive After Litigation

[t00le]

The simplest thing to do is to have a second disk in your computer, one for bad things and the second as a legal spare. Some truck drivers keep multiple log books, so something like that would be easier.

That way you could show use on the second boot disk. If you get sued simply remove the illegal disk and bury it somewhere, like a neighbors yard. start using your legal hdd as you would minus the piracy piece.

Re:Wiping the Hard Drive After Litigation

[Todd Knarr]

They could, but it's easy to get tripped up. For instance, one of the default settings in Windows XP is to synchronize time to a network time server belonging to Microsoft. If you weren't careful to keep the machine isolated during the install and all patching, you'd end up with a big discrepancy in timestamps as the clock jumped forward to the correct time during the last part of the install process. It'd also show up in the timestamps on patches, they might show as having been installed before they were issued or they'd be all lumped together at the very end when they should've been installed in a steady stream starting at the claimed install date and getting progressively more recent as patches were applied automatically. It might be hard to prove exactly when the drive was wiped, but it'd be easy to show that the fingerprint of the timestamps doesn't match what it'd be if the drive was as old as it claimed to be and had aged at 1 second per second since then.

Re:Wiping the Hard Drive After Litigation

[Anonymous Coward]

Posting anonymously because, well, you'll see.

I have personally nailed people for trying such a thing. One guy had to pay my fees and the fees of the attorney, another I believe spent a month in jail (the destruction was just the straw that broke the camel's back). In civil matters, destroying evidence means that whatever was there was far worse and far more damaging than anything currently residing on the drive. Lawyers can get away with that because they can say whatever they like and you have no way of proving them wrong.

As for your question, a wiped drive is fairly obvious, unless you set your bios clock 100's of times and do stuff incrementally, create a range of files with chronological creation/modification/access times, populate the event logs with a smooth span of times, and not leave any smoking guns (windows xp pro on a dell?), you're probably gonna get nailed if the forensics expert is worth his paycheck. By the way, when you copy a file across a file system, from one drive to another, it gets a new creation time, so if all the files were "created" on a single day, that was when they were migrated over.

The forensics expert is allowed to look at file system data and registry data as long as he can justify that its to detect just the kind of scenario you've stated, and its within the domain of his orders. Hell, he theoretically can click through every picture, document, and file on the drive if he creates a new forensic case aside from the official one and doesn't tell anybody about it. (thats bad, don't do that).

By the way, if I was ever faced with such a situation, I'd plug my hard drive is as an external, scrub the offending files, blow away the registry, destroy the file system, and take a soldering iron to the circuit board so that they have to do a clean room recovery which will result in a partial image for analysis. I'd present that drive along with a new drive, repaired and what not to the court and say my hard drive crashed and that they can have at it if they like.

Re:Wiping the Hard Drive After Litigation

[Qzukk]

Even then, it'd show an awful lot of work having been done on the computer in 1998, then absolutely no new files or system log entries until 2009, which would be quite remarkable.

This makes my blood boil

[Smidge207]

While I admire people fighting the good fight, this is EXACTLY what makes court so dicey. If you get some judge with his head up the RIAA's ass and you are going to lose no matter how good your case is. The PROPER thing to do in a case like this is to have both parties agree on who examines the drive. One more thing, five days doesn't seem like a lot of time to examine a tech report for improprieties.

=Smidge=

Re:This makes my blood boil

[evanbd]

I was of the impression that it was fairly common to let the party doing the discovery select their own expert examiner. If the defense believe the examiner is for some reason inappropriate, for example overly biased or unqualified, they can object -- but requiring the two parties to a lawsuit to agree on *anything* is doomed to failure.

This actually seems quite sane to me.

(IANAL, of course.)

You're wrong

[Zontar_Thing_From_Ve]

This makes way too much sense.

Nope. Letting the RIAA pick the "forensics expert" does absolutely nothing to ensure that a fair and impartial expert is chosen. I'd think all that would do is make it very easy for the RIAA to set up a forensics lab of their own that could potentially plant evidence on the mirror copy. Then what do you do? They could always claim that your copy, which is minus the planted evidence, was "tampered with". I see no good out of this, but if NewYorkCountyLawyer disagrees, I would welcome an opportunity to be educated out of my error here.

Re:You're wrong

[AKAImBatman]

Letting the RIAA pick the "forensics expert" does absolutely nothing to ensure that a fair and impartial expert is chose

I don't think that's the point. The point is that a trusted expert in the industry is the only one with access to the private information. He can then represents the findings on behalf of the RIAA. The defense needs to find its own expert witness to counter any arguments made by the RIAA's expert witness.

At least, that's my understanding of how the proceedings would work. (IANAL)

Re:You're wrong

[NewYorkCountryLawyer]

This makes way too much sense.

Nope. Letting the RIAA pick the "forensics expert" does absolutely nothing to ensure that a fair and impartial expert is chosen. I'd think all that would do is make it very easy for the RIAA to set up a forensics lab of their own that could potentially plant evidence on the mirror copy. Then what do you do? They could always claim that your copy, which is minus the planted evidence, was "tampered with". I see no good out of this, but if NewYorkCountyLawyer disagrees, I would welcome an opportunity to be educated out of my error here.

No, while I think the order otherwise "makes sense", I happen to agree with you 100% on your point that the RIAA should not be able to unilaterally pick the forensic examiner. I think that is a mistake on the judge's part. As I pointed out in TFA:

Unlike the protective order (pdf) in SONY BMG Music Entertainment v. Arellanes, this protective order permits the RIAA to unilaterally select whatever expert it chooses, rather than an independent, mutually agreeable, expert.

I think that is unfortunate. I'm hoping the judge comes to recognize that oversight.

Re:You're wrong

[NewYorkCountryLawyer]

They will do everything they can to bend the laws until they crack, but they won't plant evidence. NYCL can correct me....

You must be new here.

You're asking ME to back you up on your claim that the RIAA would not pick a forensics expert who would stoop to such a thing? The same RIAA which has employed MediaSentry to send out millions and millions of slightly corrupted mp3 files, and then sued tens of thousands of people for having those files on their computers?

You must have me confused with someone else.

Every time I think I've found a level to which even the RIAA would not stoop, I wind up being proved wrong.

Re:You're wrong

[NewYorkCountryLawyer]

I'll give you the benefit of the doubt and assume you would have provided a better example of stooping low given time.

Hundreds. The reason I selected that example is that it's the closest to 'planting evidence'.

I can't discuss the legality of the 'entrapment' concept you are discussing because I haven't litigated the issue yet, and I never like to give the RIAA lawyers a free look at my strategic thinking. But I think I can say that the RIAA knows that many, usually most, of the files in their exhibit B 'screenshot' are files which they themselves furnished, so that the numbers of alleged files are padded. If someone bent on infringing the copyright of a sound recording by making an unauthorized download has to obtain 4 copies to find 1 working copy, that means if he has 400 unuathorized downloaded files on his computer he probably only would have had 100, but for the RIAA's own conduct. MediaSentry's president himself testified in the Canadian case, BMG v. Doe, that you would need to play the song files to know if they are infringing song files. The RIAA however will claim that every file on the computer is an infringing file, even though it can't back that up, and knows that it's not in fact true.

Re:Question

[JoshuaZ]

There have been contradictory rulings about this. Many courts have ruled that at least in criminal cases people can be forced to decrypt their hard drives. See for example http://arstechnica.com/tech-policy/news/2009/03/court-self-incrimination-privilege-stops-with-passwords.ars

Re:Question

[vertinox]

I thought more and more convictions were based on ISP logs instead of hard drive searches these days...

Which would be more logical because how else can you tell the difference between a pirated MP3 and one I downloaded from Amazon.com or ripped from a CD?

Although it sounds plausible

[joeflies]

I would guess the penalties for the destruction of evidence and the manufacturing of new evidence would land you in significantly more trouble, no?

Our laws are not even wrong

[earlymon]

Court orders to search hard drives aren't right - they're not even wrong.

If you get a warrant to search my house, you search my house.

No court believes that it would issue a single warrant to search part of my home, part of my business and parts of my friends' and family's homes.

But a warrant to search my hard drive is exactly that.

Restricting this search to the forensics expert of the MAFIAA's choosing but not allowing irrelevant info to pass on to them is exactly offensive and ridiculous. I'm frustrated my own following hyperbole, but I am so angry, this is the only metaphor that I can find - the beat cop gets to exercise the right to search everyplace you've been with a single warrant, but don't worry, he'll only tell the detectives about the stuff he found that's relevant.

The fucking MAFIAA's cases isn't one of governmental high crimes or misdemeanors, neither is it one involving a criminal case - it's a fucking civil case. How dare any court in the land grant such a mind-numbingly offensive violation of one's constitutional protection of privacy in a fucking civil case?

Re:Our laws are not even wrong

[earlymon]

Fuck me, I'm not done. Even Judge Judy knows better than this.

Plantiff: "You honor, she stole my CDs when she moved out. A friend saw her carrying out boxes plus who else would have done it?"
Judge Judy: "Ms. X, did you take his CDs?"
Defendant: "No, judge. I did not."
Judge Judy: "I'm sorry, Mr. Z, but you have no proof. Under the law, there's nothing that I can do."
Plaintiff: "Your honor, please - how about a warrant to search her home, business and all of her friends' and family's home - then I'll have proof."
Judge Judy looks at Bert, narrows her eyes, admonishes the idiot to get a life because he's clueless and the law doesn't exist for him to conduct witch hunts and we fade to commercial.

Tell me how my point isn't any simpler than that. How in the fuck did we come to this as a people? Why in the fuck are any of us laying down for this?

My anger may be getting the better of me, but maybe that anger helps fuel my weak brain. How did we condone Gitmo? How did we let the Patriot Act and Warrantless Wiretapping go on?

How does the fucking camel get into the tent? He sticks his nose in first. Civil warrants to search hard drives have existed for more years than I can recall. That could very well be the camel's fucking nose.

Now - how in fuck do we fix this?

It's funny...

[smooth wombat]

As I read various comments, people are suggesting ways to thwart the attempt of a forensics expert to determine if certain files are present on a person's drive.

Which is amusing because numerous posters make the claim that they are doing nothing wrong when they get a piece of music for nothing.

So, if they're doing nothing wrong, why all the suggestions on ways to hide what you're doing?

Re:It's funny...

[earlymon]

So, if they're doing nothing wrong, why all the suggestions on ways to hide what you're doing?

Because the law has not caught up with electronic media?

It's 1950. You have a copyright-infringement claim, claiming that I made an illegal copy of a portrait. You may have the right to have me bring in my artwork under a court order (I do not know, IANAL, and I'm still trying to understand the discovery process).

You do NOT have the right to have me also bring in just about everything else I possess in my house.

It's 2009. You have a copyright-infringement claim, claiming that I made an illegal copy of some music using computer media. Evidently, you now have the right to have me bring in, under court order, all of my computer media - music, video, software, email exchanges and confidential business documents. In fact, today it's supposed to be evidently a victory to have someone go through all of that personal stuff to just get to the music files. Gee, I don't know, but in 1950, I don't think anyone was allowed to enter and rifle your home as part of the discovery process to ensure that all artwork was brought in.

Life, liberty and the pursuit of happiness - perhaps you've heard these words.

My liberty is seriously curtailed whenever my privacy is invaded. I am not a constitutional scholar, and so I don't know, but I suspect that just maybe the constitutional rights protecting privacy itself - while giving the state due process to violate that privacy under certain specific and limited conditions and circumstances - is a class of rights derived from the unalienable right to liberty, with all protections thereto.

So, your argument - that if you're doing nothing wrong, then why are you hiding? - whether in a civil or criminal context - is quite frankly disgusting.

As I write this, some mods have found your post to be either funny or interesting. I find your thinking to be neither. The idea that only the guilty want to hide things is dangerous and contrary to everything our country was founded on. And I repeat, disgusting.

Personally, I never want to hide anything or prevent anyone from seeing anything of mine - until someone wants to see, for any reason - and then I very much want to hide and not disclose; and that is just out of general principle. I was brought up free.

Maybe the courts are starting to get it

[bzzfzz]

I see this as good news.

The best news here is that this shows that the court system and the judges understand what computers are and how they are used and are at least making an effort to deal with the case in a balanced way. Sure, computer forensic evidence has become routine in the last few years but there have still been plenty of RIAA cases where the handling of the defendant's property is remarkably cavalier.

The RIAA, despite their myriad flaws, are entitled to their day in court. If procedures are balanced and remedies are fair, then I believe that the RIAA's corporate sponsors will quickly decide that the game isn't worth the candle.

The copyright statutes and the discovery procedures are the law of the land whether we like them or not. The injustice and unfairness early in the RIAA campaign came from the lack of due process, the flimsy evidence and weak cases, and the threats of draconian penalties. It's getting better, and every positive step brings us that much closer to closing this dark era in the history of the legal system.

Re:Maybe the courts are starting to get it

[russotto]

The RIAA, despite their myriad flaws, are entitled to their day in court. If procedures are balanced and remedies are fair, then I believe that the RIAA's corporate sponsors will quickly decide that the game isn't worth the candle.

When it's Juggernaut (RIAA) vs. Pipsqueak (average Joe), nothing is EVER balanced or fair, except in the Fox News sense. It can't be.

1) Juggernaut's expenses to run its offense are insignificant compared to its size. Pipsqueak's legal costs are significant, perhaps even crushing, to him.
2) Juggernaut has nothing at risk. Pipsqueak is at the risk of bankruptcy if he loses.
3) Juggernaut has played this game before and knows all the moves. It's probably Pipsqueak's first experience with the system
4) This is Juggernaut's job. Pipsqueak is forced to divert time and effort from his life and work to deal with it.

And that's before any cheating by Juggernaut.

Re:Maybe the courts are starting to get it

[bzzfzz]

Welcome to the courts. It's the same way with a DUI prosecution or an eviction proceeding or Walmart throwing the book at some store clerk for theft by conversion of a 99-cent tube of Chap Stick. In the RIAA cases as in every other there are ample opportunities for the defendant to do and say stupid things that create trouble for them later. That's why people need attorneys. Yes, it's expensive. Tough. And so it has always been, read through Moll Flanders (public domain edition available for free at Project Gutenberg) to get the idea.

With the RIAA cases, the other side of the coin is that, as long as the cases are handled fairly, they are too expensive for the plaintiffs to pursue. Last time I checked, the pockets of the corporate sponsors behind the RIAA not exactly of limitless depth. Absent the ability to bully people into $5000 out-of-court settlements with an hours' work by a nickel-ante paralegal and a penny-ante "investigator," a fair case with the court costs and attorney's fees will far exceed any civil penalties that the RIAA is likely, on the average, to collect. And absent the threat of an unwinnable case with six-figure damages, the PR battle moves from Pyrrhic to simply pointless.

Re:Question

[earlymon]

I thought more and more convictions were based on ISP logs instead of hard drive searches these days...

Perhaps more and more civil cases, but not more and more convictions.

Re:simple solution

[Anonymous Coward]

This still leaves you with the situation of having live thermite on a hair trigger sitting a few (inches? feet?) away from your knees.

Re:Question

[commodore64_love]

That's nice. "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is good justice is broad jurisdiction, and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves." - Thomas Jefferson, founder of the Democratic Party

Correct Mr. Jefferson. *I* have determined that the Constitution forbids the government(s) from forcing me to testify against myself ("nor shall be compelled in any criminal case to be a witness against himself"), so I will remain silent about my password on the ground it may or may not incriminate me. If the jackbooted police want to see what's on my drive, let them hack their way in. And if they cannot, then they must free me for lack of ability to find guilt.