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Court Asked To Strike All MediaSentry Evidence
NewYorkCountryLawyer writes "In Capitol v. Thomas, the RIAA's Minnesota case scheduled for trial on June 15th, the defendant's new attorneys have filed a motion to suppress all of the evidence procured by MediaSentry, on the ground that it was obtained in violation of state and federal criminal statutes. The defendant's brief (PDF) accuses MediaSentry of violations of the Minnesota Private Detectives Act, the federal Pen Register and Trap and Trace Devices Act, and the federal Electronic Communications Privacy Act of 1986. The motion is scheduled to be argued on June 10th."
judge has not ruled on this yet.
An Education is the Font of All Liberty
It's illegal to present it as evidence in a court of law unless you have a Private Detective license. That's how I understand it.
My understanding is that the point isn't whether you would be committing a crime or not, but that your record wouldn't be admissible in court because you're not a licensed investigator.
That's not really an automatic rule, and it's not clear how the judge will rule here. Except where a statute specifically says that evidence must or cannot be excluded, courts generally decide whether to exclude evidence by balancing: 1) the undesirability of excluding evidence that is truthful (even if illegally obtained) and does actually relate to the case at hand (the infamous "letting someone off on a technicality"); with 2) the desire to provide a disincentive to law-breaking by prohibiting the law-breaker the benefit of their illegally obtained evidence.
In criminal cases, the Supreme Court has done that balancing once and for all in some cases, and issued exclusionary rules that all lower courts must follow, designed to protect certain fundamental Constitutional rights. But when the illegally collected evidence is merely in violation of a statute (rather than Constitutional rights), or in a civil case (as here), the courts have more discretion in determining what remedy is in the public interest and the interest of justice. The courts have been somewhat split on when, if ever, illegally obtained evidence can be admitted, or what other remedies the court could impose.
That's one reason, I think, why the motion here isn't phrased as a demand---that the law requires the evidence to be excluded---but as a request for the court to use its discretionary power to exclude evidence as a remedy in this case: "We respectfully request that this Court remedy this violation by suppressing all MediaSentry evidence in this case." The brief goes on about that at greater length in section II., arguing that the court has the authority to exclude the evidence, and in this case should choose to do so, especially because the brief alleges plaintiffs' counsel supervised the illegal collection of evidence, which is a worse ethical violation than counsel entering into evidence illegally obtained evidence where they had nothing to do with obtaining it (pages 15-17 as numbered; pp. 20-22 of the PDF).
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It depends on your state. California, Connecticut, Delaware, Florida, Massachusetts, Maryland, Michigan, Montana, New Hampshire, Pennsylvania, Washington require both parties knowledge, many of these states such it's not just inadmissible it's also illegal.
"I don't necessarily agree with everything I say." - Marshall McLuhan
But in all states you can't be charged with a crime. The recording won't be admissible in court but there's no state law forbidding recording conversations without consent.
In Florida it's a felony to record people's voices in a private setting without their consent. Florida statue: 934.03
"I don't necessarily agree with everything I say." - Marshall McLuhan
To qualify, the very end of the brief does seem to coyly hint at a possible Constitutional issue, citing an 1886 US Supreme Court case that applied an exclusionary rule in a civil case because its damages were such that it could be considered quasi-criminal. The brief helpfully suggests that the Court could avoid that mess of an issue by simply using its discretionary power to exclude the evidence, without having to consider the Constitutional issue.
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It's generally legal to present tcpdump logs (or logs of traffic on your web server, etc.) as long as you are one party in the communication. So in this case, MediaSentry, as one party in the communication, can log anything they want. There's an exception: If you are engaging as a party in the communication in order to commit a criminal act, then the interception might not be admissible. Oddly enough, this has a 5th amendment basis: It might be assumed that the other party of the communication is also engaging in something criminal, therefore your disclosure might implicate you in a criminal transaction, thereby becoming self-incrimination. The defense case rests on the argument that MediaSentry is engaging in a criminal act (working as a PI without the license to do so), therefore their logging is inadmissible. However, the law grants them the right to self-incriminate: voluntary confessions are admissible. So under this argument, MediaSentry's testimony would be admissible. It might also be viewed as a confession to a criminal act, but that's a separate case. OTOH, this might persuade MediaSentry to withdraw the testimony before it counts against them. The defense also claims that the recording violates the federal Pen Register Act; this claim is clearly specious, as section 3 of said act allows a participant or intermediary to log as part of the normal course of operations Otherwise, every last Apache web server running in the default configuration would break federal law on every request. And yes, phone bills are admissible, as they are part of regular business transactions; so are most end-point driven logging operations. In the end, it comes down to this: does the threat of prosecution under the MN PI licensing law dissuade MediaSentry from continuing to support their previously sworn testimony? I predict it does not, and that their testimony will remain admissible. Of course, this makes an eventual finding against the defendant subject to reversal should MediaSentry later be convicted, which could legitimately encourage the court to either reject the testimony or recess until such time as either a grand-jury no-bills MediaSentry or a verdict is reached in their case.