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."

Comments

Where's the sting, oh thy sword?

[InMSWeAntitrust]

It's lovely to see that illegally obtained evidence is still illegitimate in the courts. Kinda gives you a warm feeling inside.

Re:Where's the sting, oh thy sword?

[eldavojohn]

It's lovely to see that illegally obtained evidence is still illegitimate in the courts. Kinda gives you a warm feeling inside.

Agreed. Well from the letter of the law, it does sound like MediaSentry operated as an unlicensed Private Detective and regardless of whether she's guilty or not, I hope they uphold the law. It kind of saddens me that this may vary state to state, do other states have these sort of protections in place to stop a completely biased party (oh, like your ISP or MediaSentry) from gathering evidence against you for a trial?

I'm not a lawyer but it sounds like this lawyer finally did his homework and will probably stop the trial altogether due to lack of any evidence at all. I hope the RIAA learns its lesson and stops these frivolous lawsuits.

Re:Where's the sting, oh thy sword?

[linzeal]

judge has not ruled on this yet.

Re:Where's the sting, oh thy sword?

[InMSWeAntitrust]

Yeah, and unfortunately their case seems a bit flimsy:

MediaSentry violated the Pen Register Act when they recorded the TCP/IP packets that included the IP address of the sender. It is a misdemeanor under 18 U.S.C. Â 3121(a) to install or use a pen register or trap and trace device.

If this passed, it would make programs like Ethereal et al. more in a legal grey area than they are now.

Re:Where's the sting, oh thy sword?

[arbiter1]

Most states have same law, that you need a state license to have evidence in a be admissible in court. They can investigate all they want but states like Michigan to use such information in court they have to license in Michigan which should be same thing here. Most lawyers don't think about this when case happens so RIAA & mediasentry win the case a lot of times.

Re:Where's the sting, oh thy sword?

[Anonymous Coward]

Indeed. A motion is one thing, get back to me when some judge has ruled. Then it'll be appealed. Then another set of judges will rule...

And it'll all be pointless.

Re:Where's the sting, oh thy sword?

[Toonol]

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.

Re:Where's the sting, oh thy sword?

[__aasqbs9791]

Depending on the state you are in, the answer to that is yes. Some states requires all parties to be notified of recording on a telephone call, and some states only require one of parties involved in the conversation to be the one recording. I'm not sure what law applies if you go cross state, however. Is it the more restrictive of the two, or the state of the person initiating the call, or some Federal law? IANAL, so I only know based upon what a lawyer told me in my state when I asked based upon some shady things my boss was suggesting I should do that I didn't agree with at the time.

Re:Where's the sting, oh thy sword?

[woot account]

So, if I call someone from my residence and record the conversation without any consent I'll be commiting a crime?

In some states (such as Florida), yes. Both parties have to be aware of it.

Re:Where's the sting, oh thy sword?

[Jane Q. Public]

Actually, this point has been raised time and time and time again, and RIAA was surely aware of it. They no longer employ Media Sentry (or the company in later became).

Any lawyer pretending to be competent to defend this case should have known about it, too.

Re:Where's the sting, oh thy sword?

[WCguru42]

So, if I call someone from my residence and record the conversation without any consent I'll be commiting a crime?

In some states (such as Florida), yes. Both parties have to be aware of it.

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.

Re:Where's the sting, oh thy sword?

[Trepidity]

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).

Re:Where's the sting, oh thy sword?

[Schemat1c]

I hope the RIAA learns its lesson and stops these frivolous lawsuits.

You're funny.

Re:Where's the sting, oh thy sword?

[Nefarious Wheel]

I read the brief. Lovely read, too. Each line was percussive; a nail slammed by a hammer at the end of each sentence. The author could have been a flooring contractor. Media Sentry violated the Pen Register Act (WHAM). MediaSentry's activities violated the Electronic Communications Privacy Act of 1986 (BLAM). MediaSentry collected its evidence against Jammie Thomas in violation of federal and state criminal law (switch to nail gun BLAM BLAM BLAM).

Large white letters on a black T-shirt does not make you the FBI. You have to play by the rules, or eventually you will get caught out. No matter how big you are, you will always be out-gunned by the courts.

Re:Where's the sting, oh thy sword?

[clarkkent09]

I hope they uphold the law.

I have to agree even though I hate to see silly technicalities (esp to do with "licensing" which is just a tax with another name) being used to suppress evidence, regardless of the strength of evidence itself. But then this is RIAA who have never been shy of using dirty tactics themselves so it serves them right.

It kind of saddens me that this may vary state to state, do other states have these sort of protections in place to stop a completely biased party (oh, like your ISP or MediaSentry) from gathering evidence against you for a trial?

Of course a biased party (such as a "licenced" private detective hired by your opponent) is able to gather evidence against you. As for your ISP, that's a different issue, but what are you saying, that ISPs falsify evidence to help RIAA win lawsuits?

Re:Where's the sting, oh thy sword?

[RattFink]

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.

Re:Where's the sting, oh thy sword?

[RattFink]

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

Re:Where's the sting, oh thy sword?

[fast turtle]

So, if I call someone from my residence and record the conversation without any consent I'll be commiting a crime?

You would be committing a crime if the recording unit does not provide the automatic beep tone every 5 seconds in the U.S.. Furthermore, in some states, if you don't indicate that you are recording a phone conversation, you could be liable for illegally wiretapping a conversation.

Re:Where's the sting, oh thy sword?

[Anonymous Coward]

Stop making stuff up. There are a few states where it is, and you can. California for one.
http://www.rcfp.org/taping/ is a good resource for this discussion.

One example:
It is a crime to record any conversation, whether oral or wire, without the consent of all parties in Massachusetts. The penalty for violating the law is a fine of up to $10,000 and a jail sentence of up to five years. Mass. Ann. Laws ch. 272 , paragraph 99.

Re:Where's the sting, oh thy sword?

[Trepidity]

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.

Re:Where's the sting, oh thy sword?

[Anonymous Coward]

Exactly--a lot of people go on about Constitutional protections, but forget that they actually (mostly) only apply to government actions.

As I understand it, even in a criminal case, the prosecutor can bring in evidence brought in by criminal action, as long as it isn't done by a government agent--police, informants, "helpful" citizens, etc. For example: I break into a guys house (a felony) and steal all his DVDs, including (to my surprise) videos of him molesting kids and shooting old ladies. If they catch me, they can still use those videos against him. ("Sure, officer, I stole them from Joe at 1337 Torchwood.") I'll still go to jail, but "Joe" will most likely be up on the docket right before or right after me.

Since this is a civil action, it's up to the court to decide....and therein lies the rub. If the evidence was collected by criminal means, then introducing in court means that Media Sentry has just made an official record of there actions...to be used later in a criminal case against them.

*sigh* we can only hope.

Usual disclaimer...I am not a lawyer, I am not law enforcement, I am not completely rational at all times...

Re:Where's the sting, oh thy sword?

[blind biker]

I do believe that this talented young lawyer will tear into RIAA's case with grace and much carnage. I know it sounds corny, but if he makes the RIAA squeal with pain, he's a bit of a modern-day hero.

Re:Where's the sting, oh thy sword?

[xouumalperxe]

Of course MediaSentry monitoring its own traffic in its own network is similar to wiretapping. Just the same as, say, filming myself having sex with my girlfriend is similar to voyeurism (BadAnalogyGuy, eat your heart out!). That doesn't make it illegal per se. What does (in my non-legally trained opinion) make it illegal is that "its own traffic in its own network" in this case also means you're eavesdropping on other people. Think a hidden camera my girlfriend isn't aware of.

And yes, recording a phone call when the other party isn't aware is often a legally troublesome thingie. AFAIK, most of the US will at least tell you that it's not admissible as evidence.

Re:Where's the sting, oh thy sword?

[xouumalperxe]

The problem in your breaking and entering example is that the police would collect evidence against Joe as a by-product of capturing you. What the MediaSentry guys are doing is more akin to deliberately breaking and entering, and submitting the results of their little forays as evidence. Wilful illegal behaviour on the part of those collecting evidence and with the objective of collecting said evidence should be more than enough to get anything they produce tossed out with extreme prejudice.

Re:Where's the sting, oh thy sword?

[VShael]

Well that depends. If they'd obtained the information by waterboarding, then it probably would have been okay.

Re:Where's the sting, oh thy sword?

[bwcbwc]

Also during the Clinton/Lewinsky scandal, didn't Maryland go after Lewinsky's "friend" that recorded their conversations without Lewinsky's knowledge?

Re:Where's the sting, oh thy sword?

[Svartalf]

In reality, if the laws in question were violated by MediaSentry (they were...), then the law DOES require exclusion on the spot for the evidence in question.

In her state, the stuff's explicitly inadmissable- you can't enter evidence of this nature gathered by anyone other than a licensed PI into a case.
In the case of the Federal statutes, the same applies. It's not info that they can actually allow in court.

Re:Where's the sting, oh thy sword?

[Attila Dimedici]

In several states, it is illegal to record a phone conversation without the knowledge and consent of all parties to the conversation. In many of these states it is a felony. If you have a phone conversation with someone in California and record the conversation without their consent you can be fined up to $5000 even if you are in another state.

Re:Where's the sting, oh thy sword?

[slash.duncan]

While investigator licensing is likely a bit of a revenue generator in some states, there's actually a decent justification for it, the same as for a contractor's license, etc.

The justification is that licensed is de facto regulated. Even if the original license is normally a formality (say a few hours' training and a fee, if even the training at all), as long as a record is kept of complaints registered per license and with a bit of cooperation between states even better, given a license, it's possible to track who has had a license and for how long, as well as the number of complaints against them. If there's a serious complaint, the license can be pulled.

This is information educated consumers can and often do use, tho admittedly, more often for licenses for those covered by doctor's licenses, etc, then for contractors. Still, insurance and etc likely won't cover work (and may disqualify house coverage for work performed) by unlicensed contractors, and there are often ads from the contractor's associations, etc asking you to verify contractor's numbers, etc. If you feel you've been wronged by a licensed contractor, you can at least file a complaint. You're out of even that luck if you hired someone off the street.

The PI licenses are in theory much the same. They can regulate at least some of the most egregious violations of privacy, in theory, it makes them more careful about stalking, etc, both protecting the investigated, and it provides some assurance for the buyer of professional qualifications as well. At least, that's the theory, and it /can/ be the practice. If some states just use it as a revenue generator and don't do much to enforce rules, investigate complaints, and verify against other states, they're abusing the process and it /is/ simply a revenue generator for them. But that's not the way it has to be, and some states do put a few teeth into their consumer protection laws, so it's not always that way.

Here, we actually have a case of the law working as it should. MediaSentry didn't register as an investigator in the states it's now trying to bring evidence against residents of, they abused the system and got caught, and now the RIAA is being made to pay a price for hiring them to provide evidence to be used in court, without checking on that.

Hopefully the judge sees it that way as well, and throws out the illegally obtained evidence. We'll see.

Re:Where's the sting, oh thy sword?

[Runaway1956]

In this case, or even in any other particular case, in which mediasentry is being used as evidence, yes - you are correct that the point being argued is that the evidence is inadmissable.

However, in the broader picture, those who have pried into private lives using mediasentry without being duly licensed to do so would be liable in criminal court. All that is needed is for one or more citizens to press charges and/or one or more prosecuting attorneys to get a bee in their bonnet regarding the violation of law.

There is the potential here for EACH of the 50 states to collect millions from the *iaa's for damages, not to mention penalties. Those corporations and front organizations who have employed this and similar data mining measures could conceivable be put out of business. IF, that is, the 50 states and the Disctrict of Columbia were to coordinate their attacks - which I don't see happening. To many politicians have been bought and paid for using the ill gotten gains of RIAA and associates.

Re:Where's the sting, oh thy sword?

[twidarkling]

So, if I call someone from my residence and record the conversation without any consent I'll be commiting a crime?

It's not admissible as evidence if you live in a "two-party consent" state. That requires all parties to be made aware of any recordings which may be made of the conversation. If they don't consent, you can't use it, and you could be on the hook for various charges or civil suits for trying.

Re:Where's the sting, oh thy sword?

[tsm_sf]

No matter how big you are, you will always be out-gunned by the courts.

Oblig. Raker Act scandal mention.

Re:Where's the sting, oh thy sword?

[Trepidity]

Interesting, if that's the case. I wasn't aware that any Private Investigator statutes actually included an explicit provision that evidence obtained in violation of the statute must be excluded from all proceedings, as opposed to merely criminal or civil liability for the violator themselves.

But if the statutes did contain an explicit provision of that sort, wouldn't the brief here argue that? The brief seems to acknowledge that exclusion is discretionary rather than required as a matter of law.

Re:Where's the sting, oh thy sword?

[TaoPhoenix]

"The court finds for Jammie Thomas and recognizes the precedent she brought".
Thank You Ma'am?

Re:Where's the sting, oh thy sword?

[SwordsmanLuke]

I heard of a case once where a burglar broke into an apartment and discovered a skinned human head floating in a jar. The burglar - very shaken - fled the scene and called the police. The burglar did go to jail for breaking and entering, but the police also went and investigated the head. Turns out the house belonged to an artist of dubious taste. The "head" was made out of carefully layered bacon. 8^)

Re:Where's the sting, oh thy sword?

[ThatsNotPudding]

In Florida it's a felony to record people's voices in a private setting without their consent. Florida statue: 934.03

That's not what I heard you say earlier. Wanna hear?

Re:Where's the sting, oh thy sword?

[Nefarious Wheel]

And it'll all be pointless.

This is held in a U.S district court, district of Minnesota, and the first of such lawsuits tried. I suspect the precedent set in this one may be paid a fair amount of attention in subsequent RIAA suits if this case is blown to matchwood by a positive ruling on this motion.

Re:Where's the sting, oh thy sword?

[Nefarious Wheel]

I wasn't aware that any Private Investigator statutes actually included an explicit provision that evidence obtained in violation of the statute must be excluded from all proceedings...

That's not where you'll find them. Inadmissability of evidence gained illegally is a more general principle I think.

Re:Where's the sting, oh thy sword?

[metaforest]

In WA it's a class C felony to record a conversation in any medium without notification to the parties involved. Even if that conversation is held in a place that is, defacto a public location. The State recognizes that it is possible to have a conversation in public that is really a private transaction.

So in this context the recording violation could be applied to a party to the conversation recording without notification, or an actor that is not party to the conversation recording it without notification, even when the conversation is in a public space.

It's important to note: Only notification is required. Consent is implied if the parties to the conversation proceed with the conversation after being notified.

One could argue that a data transaction is a conversation between two computers, and that the actors who are involved in initiating that data transaction fit the definition of having a private conversation in a public area.... . Don't know if that would fly in court, as IANAL.

Re:Where's the sting, oh thy sword?

[metaforest]

In some states it's possible to record without notification, but it becomes a criminal act if that recording is relayed in any way to a party not originally party to the conversation.

Re:Where's the sting, oh thy sword?

[metaforest]

I believe Lewinsky's friend was prosecuted. I don't recall what the verdict was...

Re:Where's the sting, oh thy sword?

[metaforest]

Agreed these rules will be found in the State's evidentiary rules for the Court.

Re:Where's the sting, oh thy sword?

[clarkkent09]

You are right, I just have a passionate hatred for every single level of government seeing fit to impose licensing on every type of business out there so I don't like to see someone penalized because they don't have the stupid license. I personally have to have 5, from city, county and state, renewed annually with an accompanying exorbitant fee for no purpose other than to generate revenue for somebody. Part of my business includes photography so I have to put up with such things as health and safety related permits for photo lab chemicals even though it's 100% digital. But yes your point is entirely valid.

Re:Where's the sting, oh thy sword?

[thehumble1]

I think nextekcarl answered this affirmatively already, but I also think you are missing the point. If you called people randomly and told them that you were writing an article about local driving habits and then asked them if they sometimes speed, then record the answers and use it to charge them with a speeding violation. The point is that the purpose of the entire interaction was to gain information in order to start legal proceedings, which isn't by itself illegal. When done without a license and/or court order, it is illegal.

Re:Where's the sting, oh thy sword?

[Nefarious Wheel]

Exactly--a lot of people go on about Constitutional protections, but forget that they actually (mostly) only apply to government actions

I'm a little confused here -- aren't the US courts considered part of the government? Judicial branch? That would make any US court action a government action. There's more to US Government than the Executive branch & that bunch of elected metalegals over on Capitol Hill.

Re:RIAA still douchebags

[Norsefire]

Cockroaches survive nuclear explosions.

Evidence?

[Elgonn]

I wasn't aware that anything MediaSentry has brought into court was anywhere near something we'd call evidence. Vague screenshots, unverifyable logs?

Re:Evidence?

[NewYorkCountryLawyer]

I wasn't aware that anything MediaSentry has brought into court was anywhere near something we'd call evidence. Vague screenshots, unverifyable logs?

It really isn't. But we need defense lawyers to be in there challenging it, and explaining that to the Judges.

Re:Evidence?

[bwcbwc]

Which is really nice to have as a fallback position if this motion fails. But this motion could cut the time spent at trial (and the costs to Thomas) if they don't have to go through the whole argument about the evidence.

Re:Evidence?

[Xenographic]

I'm just glad she *has* a lawyer. Am I horribly mistaken, or didn't her former lawyer withdraw from the case? Unless I have my cases confused, Jammie Thomas was in a bind having no lawyer and the RIAA opposing any continuance of the case (i.e. let's not give her any time to find a new lawyer).

Who is this guy that he could jump in and go after them like this? Legal research takes time...

Re:Evidence?

[NewYorkCountryLawyer]

Who is this guy that he could jump in and go after them like this? Legal research takes time..

They're young and they're tech savvy. And I was quite surprised that they didn't ask for a modest adjournment, which I'm sure the judge would have granted them.

Maybe that's the thing about being young.

Re:Evidence?

[gnasher719]

I wasn't aware that anything MediaSentry has brought into court was anywhere near something we'd call evidence. Vague screenshots, unverifyable logs?

It was enough to get Mrs. Thomas convicted the first time round. Or lets say to convince the jury that she did what she was accused of doing; the other part was convincing the jury that what she was accused of doing was actually illegal; the judge figured out later that he instructed the jury incorrectly on that part. So their "evidence" is still accepted as evidence.

Re:Evidence?

[NewYorkCountryLawyer]

their "evidence" is still accepted as evidence

Not so. Their phony "evidence" is fully subject to challenge in the second trial. My impression of the new legal team is that they are above average in tech-savvy... so I expect them to vigorously challenge the RIAA's junk evidence, and get most or all of it excluded.

Re:Evidence?

[metaforest]

Could be the kid was already armed for **AA and just needed to load the appropriate rounds addressing the facts of her case into his bandoliers.

when I was doing on-site computer repair I carried 95% of what was needed to fix ANY Macintosh computer (or compatble clone), with ANY conceivable issue in two small briefcases.

And yes that included hardware component failures as well. If I had reason to believe that I was dealing with a major component failure(Mobo or HD or PSU) I would bring the indicated components as well....

Nice Briefs!

[plover]

That motion looks really well researched and backed with a lot of precedent. And if the judge shuts down MediaSentry, well then there are a whole lot of settlements that might get resettled!

Re:Nice Briefs!

[Technician]

That motion looks really well researched and backed with a lot of precedent. And if the judge shuts down MediaSentry, well then there are a whole lot of settlements that might get resettled!

It's a nice thought, but unless there is a class action or something, most likely the settled stuff will remain as it is. If you have a current case with the RIAA, you may request a delay with the settlement center pending the outcome of this case. If you settle and later attempt to get a refund, it probably won't happen unless you fight for it. It's best to not pay them in the first place.

I simply don't use their product anymore. It's liability issues are excessive to consider the risk. Even online video I post don't have any music in the background. It'l remain that way until the legal landscape for using the product changes.

Re:Nice Briefs!

[pembo13]

Won't they just change their name?

Re:Nice Briefs!

[Earthquake Retrofit]

If your video needs music, it should have music. The web is fairly bursting with people who want others to hear their music. No need for third parties; just make a deal. See below... Steve

Re:Nice Briefs!

[Anonymous Coward]

What? You mean again? Surely not.

Re:Nice Briefs!

[Technician]

Point well taken. I just checked the link. It is simply not clear on the page if the FREE tracks are licensed for private home use only. Many sites do not have a way to contact the copyright owner directly to "Make a deal" for a use other than for private home use only.

A song attached to a posted video should be a technical issue, not a legal reasearch issue. Would ASCAP want to get involved? Is there a label involved? Is BMI involved? Unless I have it in writing someplace that the track comes with permission to post, it isn't worth fighting take down notices and possible legal action.

Someday maybe music will be licensed for use in a digital age. Until then, It's simply easer to do without.

By the way, nice dedication to Ray Beckman. Nice touch. I'll take a listen, but until I hear otherwise, I'm assuming it's licensed for private home use only. Any public performance is prohibited. This part of the standard for music licensing is out of date and needs fixed.

Re:Nice Briefs!

[L4t3r4lu5]

You can still have music. Check out Jamendo.

A lot of the music is licensed Creative Commons Attribution-Non-Commercial Share-Alike, meaning you can make derivative works using the music, but must include a reference to the original author, and only for non-commercial purposes (free to access, no advertisments, no remuneration for works). Make sure to check with the applicable license for that particular artist / track, though (Six license types under CC).

Re:Nice Briefs!

[Technician]

Fair enough. If I want to use the music in the example given, I now have to add some kind of "Credits" page to credit the artist. I'll keep that in mind.

Re:Nice Briefs!

[Svartalf]

I think some enterprising person will start one in light of this. Any info used for these "settlements" was illegally obtained in pretty much every State in the Union. Moreover, it's very defective at best if it WAS
obtained legally- it doesn't do anything of what the RIAA claims in court that it does. They knew or should have known that the stuff was explicitly inadmissable and that they had no case at that point. They pursued a campaign of threats of the sort of litigation that we've seen, knowing that people would twig onto that while maybe they weren't guilty of anything or that they didn't have a case, that the settlement was the cheaper way out- mounting a Federal case isn't cheap on either side. Knowing this and pursuing the course the RIAA chose to pursue on this, "to make examples of file sharers" (using their OWN words on the matter) would be considered to be extortion and racketeering by many and possibly even provable in a Court of Law at this point, based on what's been shown in the trials up to this point. Someone's going to want to cash in on that once it becomes dead clear they're in a bad position over this- and it won't just be RIAA, but the member labels that participated in this fiasco. Those guys are flush with cash... ;-)

Re:Nice Briefs!

[Nefarious Wheel]

They pursued a campaign of threats of the sort of litigation that we've seen, knowing that people would twig onto that while maybe they weren't guilty of anything or that they didn't have a case, that the settlement was the cheaper way out- mounting a Federal case isn't cheap on either side. Knowing this and pursuing the course the RIAA chose to pursue on this, "to make examples of file sharers" (using their OWN words on the matter) would be considered to be extortion and racketeering by many ...

Yep, seems that way doesn't it? Such a fun bunch of guys. I'd love to invite them for dinner.

I'll be serving the salmon mousse.

Re:mod points

[Anonymous Coward]

nobody's laughing

You can ask for the world

[initialE]

It doesn't mean you'll get it handed to you. Speculation for nerds, Wishes for Fishes.
Wake me up when the Judge files a ruling either way, that's what I call news.

Re:You can ask for the world

[amicusNYCL]

You can make a really good argument that you should get the world though. The defendant's brief is a good one, and the evidence the attorneys give is sound. There are only a few possible outcomes from this.

One outcome is that the judge grants the motion, which would effectively negate MediaSentry evidence in this and other cases. Attorneys in other RIAA cases would be able to show that the same circumstances apply to their cases.

Another outcome is that the RIAA drops the case, which implies that they don't want to question the validity of MediaSentry evidence, which would also put attorneys on other cases on notice that MediaSentry evidence is available to challenge.

Other possible outcomes include the motion being denied, which I can't see happening because of the arguments the attorneys are making. The attorneys are arguing that MediaSentry violated at least three laws. One law is the MN state Private Detectives Act, which says that in order to conduct a private investigation in MN, you need a license. It's a fact that MediaSentry doesn't have a license, that's not debatable. The act defines private investigating as consisting of at least one of nine acts, four of which demonstrably apply to MediaSentry's behavior. Therefore, MediaSentry committed a misdemeanor under MN law in doing their investigation.

Another law is the Pen Register Act, which makes it a crime to record IP addresses using a pen register device. The PATRIOT Act amended the Pen Register Act to expand the definition of a pen register device to include the type of software that MediaSentry used to collect IP addresses. A violation of the Pen Register Act is a federal crime, not a state crime like the above law.

The other law is the Electronic Communications Privacy Act of 1986, which prohibits wiretapping. The attorneys show that MediaSentry's behavior is in the scope of wiretapping as defined by the act, and that none of the exemptions apply to MediaSentry. Among other things, they use Kazaa's EULA against MediaSentry because the EULA forbids the kind of data collection that was performed. The purpose of that is to argue that Kazaa is not available to the general public, but only to people who agree to the terms.

Then they go one step further and charge that the liability for MedaSentry's actions rests with the RIAA attorneys, and they show why that applies also.

They site precedents, specific sections offering exemptions and show why they don't apply, specific definitions of behavior and show why they do apply, it's pretty hard to think that the judge would disagree with the brief. It starts off a little preachy, but they turn it around. It's only a 20-page PDF, Ray was kind enough to link to it in the summary.

Re:You can ask for the world

[oodaloop]

Harbinger of Death? Sounds delicious! I'll have a venti half-caf upside-down soy extra-hot Harbinger of Death please.

Re:You can ask for the world

[metaforest]

The KaZaA angle.... Would that be Tortuous Interference ala Blizzard v. MDY?

And would KaZaA need to be a party to the case?

Re:You can ask for the world

[amicusNYCL]

IANNYCL, but from what I can tell about the brief, the only reason they brought up KaZaA was for the wiretapping act. One of the requirements of being charged with illegal wiretapping is that the communications cannot be accessible to the general public. They use the terms in the EULA to argue that those make the network only accessible to people who agree to the EULA, instead of the general public. Therefore, KaZaA is not accessible to the general public, and the wiretapping was illegal.

TCPdump?

[whoever57]

So, according to this brief, it is illegal to use tcpdump on packets leaving my own network?

Re:TCPdump?

[The MAZZTer]

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.

Re:TCPdump?

[Anonymous Coward]

let's hope not or that could mean alot of trouble for enforcing TOS violations.

Re:TCPdump?

[mattmacf]

No, it means it's illegal to do so for somebody else (and charge for it) for one of the reasons enumerated under the applicable statue (as posted above). Or simply get a license to do so.

Re:TCPdump?

[dododuh]

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.

Re:TCPdump?

[shentino]

Explain to me how an eavesdropper is proper party to a communication?

Re:TCPdump?

[Svartalf]

Unfortunately, the evidence wasn't legally gathered and could not be without a PI license. In MI it's a misdemeanor. In Texas, it's actually a Felony. :-D
I don't know if it's hard for one to obtain it in MI, but it's not at all easy for one to obtain one in Texas- and MediaSentry would have a fun time obtaining
one or getting a licensed PI to do and oversee the investigation there.

Re:TCPdump?

[Svartalf]

There's a very narrow range of things for which it's legal to do so. Unfortunately for MediaSentry, that range does not apply because they're NOT the RIAA or one of the Member Labels.

Re:TCPdump?

[NormalVisual]

They're not eavesdropping. They're running a download/torrent client themselves, not intercepting traffic to someone else's.

Re:TCPdump?

[dododuh]

There's an argument to be made that the evidence wasn't gathered legally. Clearly, had MediaSentry been hired by RIAA's attorneys instead of by the contracting arm of the company (and they might have been), there work would be fully protected under MN law. And under Texas law , Texas Occupational code Sec. 1702.324(9); I'm an attorney's consultant in Texas, and it pays to know these things! Further more, Section 1702.104 of the state occupations code waives the requirement of a PI license for the investigation of data available to the general public. The counter-arguments are that the defendant was engaging in public discourse rather than private, protected speech and that MediaSentry was simply a witness of this event. The defendant sent packets to the MediaSentry computer, which MUST process the contents of those packets, including the IP Addresses that were recorded, in order to be able to understand the communication. Therefore, MediaSentry is as much a witness to the event as would be a bystander on the street who sees a car wreck. The PI law certainly doesn't require that a witness of a public event be a licensed private investigator. The court's decision in this matter is not a foregone conclusion.

Re:TCPdump?

[whoever57]

It's illegal to present it as evidence in a court of law unless you have a Private Detective license.

The motion proposes that MediaSentry's actions are illegal under federal law, irrespective of whether the resulting logs are used in court or not:

C. Federal Electronic Communications Statutes
MediaSentry's activities also constitute criminal
violations of two federal statutes: (1) the Pen Register and Trap and Trace Devices Act, as amended by the USA PATRIOT Act (the "Pen Register Act"); and (2) the Electronic Communications Privacy Act of 1986 (the "Wiretap Act").

Re:TCPdump?

[Nefarious Wheel]

The counter-arguments are that the defendant was engaging in public discourse rather than private, protected speech and that MediaSentry was simply a witness of this event.

They went to some pains to show that it was private speech. They used the fact that you had to log in to KaZaA, and that to do so with permission you had to follow their terms and conditions. Then they showed that they were in violation of those T&C and were thus excluded from the permitted audience. Gate crashers, in effect. Private party.

From my own technical background I think I could make a case that such challenge-response authentication is very similar to a corporate firewall; outside, you have the public Internet. Inside, that is, logged in to a private network, you have excluded the outside world from your private communications unless explicit permission is granted.

There can be little doubt (in fact I think long precedent) that the realm inside a corporate firewall's protections is private space and quite separate from the outside world. Precedent would include those findings that showed eavesdropping on an employee's computer was not in violation of their rights to free speech. Is this correct?

Well,

[Nekomusume]

It's about freaking time. Too bad Media Sentry has shifted it's primary focus overseas. Would be nice if they end up being found to be criminally responsable though.

Sometimes I wonder about NYCL.

[Anonymous Coward]

Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up?

Obviously I want him on our side, but it'd be good to know the truth about his motivations.

Re:Sometimes I wonder about NYCL.

[NewYorkCountryLawyer]

Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up? Obviously I want him on our side, but it'd be good to know the truth about his motivations.

I did it all for the karma.

Re:Sometimes I wonder about NYCL.

[San-LC]

Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up? Obviously I want him on our side, but it'd be good to know the truth about his motivations.

I did it all for the karma.

I KNEW IT!!!

Re:Sometimes I wonder about NYCL.

[NewYorkCountryLawyer]

Are we sure he didn't become a lawyer -- or at least didn't start taking (and reporting) on these sorts of cases -- solely to get modded up? Obviously I want him on our side, but it'd be good to know the truth about his motivations.

I did it all for the karma.

Getting a law degree, passing the bar, taking on the RIAA all for Karma? NYCL, I love you man, the fight against the MAFIA wouldn't be the same without you, but WOW, that takes Karma whoring to a whole new level...

Yes I think it is arguable that I have taken Karma whoring to a whole new level. Back in 1974, 20-odd years before Slashdot had even been born, I had it all planned out. Cmdr Taco was placed on this earth in order to enable me to fulfill my destiny.

And now, all I have to do is sit back and reap the many rewards of my accumulated Slashdot karma, such as....... er....... er.......

Well let's put it this way:

1. Go to Bronx High School of Science, wear pocket protectors, establish nerd credentials.
2. Go to college.
3. Go to law school.
4. Work hard as lawyer.
5. Start blogging.
6. Get blog noticed on Slashdot.
7. Write many submissions and comments for Slashdot.
8. Accumulate much karma.
9. ????????
10. Profit!!!

Re:Sometimes I wonder about NYCL.

[NormalVisual]

And how does it feel now, that your master plan has finally come to fruition and you have karma to burn? You gotta admire a man with focus.

Re:Sometimes I wonder about NYCL.

[NewYorkCountryLawyer]

And how does it feel now, that your master plan has finally come to fruition and you have karma to burn?

I guess I feel.... pretty stupid.

Re:Sometimes I wonder about NYCL.

[Tuoqui]

Apparently not, you got modded +5 Funny this time :)

Re:Sometimes I wonder about NYCL.

[mcnellis]

You did't do it for teh lulz? :(

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:RIAA still douchebags

[number11]

Ya, sure.

I like this new lawyer. He understands the issues and isn't afraid to grab the bull by the horns. Hopefully, he'll be successful and provide models for other lawyers to follow. And if he is, he'll deserve all the bragging rights he can get.

I'm a little dubious about the wiretap stuff, since MediaSentry was a party to the communication and not an outside snooper. I'm not sure I like the argument that MediaSentry violated the KaZaA TOS, but that's mostly because I'm not convinced TOS are enforceable in any way other than letting the vendor revoke your license (note: IANAL and the law may or may not agree with me). But I think that lawyers are supposed to throw everything they've got into the battle, even if some arguments are weaker than others (you never know what the judge and/or jury will like). The private eye stuff, he's got them dead to rights, MediaSentry was collecting evidence without a license. And one would hope that the RIAA lawyers who knowingly used such services would be subject to personal sanctions, as well.

Illegally obtained evidence

[peterhoeg]

Am I the only one who find the whole issue about illegally obtained evidence not being admissible in court preposterous?

Let's say I go out and kill somebody, but the only evidence against me it is an illegally obtained wire-tapping. It doesn't make me any less guilty. And the people who obtained it illegally obviously need to be prosecuted but it still shouldn't change anything in terms of me. Obviously in this case most people would argue that making me walk on a technicality is not in everybody's best interest. Without going into special cases, can anybody tell me why illegally obtained evidence should not be accepted? Evidence is evidence and it carries its weight irrespectively of how it came about.

For the record, I like the RIAA's actions as little as the next guy, but that's not what we're discussing here.

Re:Illegally obtained evidence

[Anonymous Coward]

The police have a lot of power, a lot of easily abusable power. By demonstrating a hard line approach "You abused your power to gain this evidence now you don't get to use it" acts as a deterrent for that abuse of power, if the goal is to convict a criminal then its the perfect soloution, because then it becomes "We could cheat but there is no point, anything we learn by cheating wont help us at trial"

Re:Illegally obtained evidence

[MrMista_B]

Because how do you determine if the illegally obtained evidence is real, or faked?

Let's say you're accused of having gone out and killed somebody. The only evidence against you is illegally obtained. It might be real, it might be faked - either way, the evidence was criminally obtained.

These people who the RIAA are accusing are innocent, until proven guilty. Let me repeat that - they are /innocent/, unless guilt can be proven.

The evidence against them, was obtained criminally - again, they are innocent, unless proven guilty.

Your argument is a straw-man fallacy.

Re:Illegally obtained evidence

[Anonymous Coward]

regardless of what you have done, untill you are convicted you are still innocent and still have all your rights under the constitution. those rights are part of our rule of law, and so the must be respected. Another right you have is to a fair trial, even if you are guilty. We are not allowed to break laws to convict someone else of breaking laws, thats not fair. so to remedy that, everything presented against you has to be legally obtained, and if it isnt then you cant admit it. yes, that might let a known murderer go free, but that is par for the course. while its not the best outcome, i'd prefer to keep as many rights as possible even if they occasionally help those who dont deserve their protection.

Re:Illegally obtained evidence

[Sasayaki]

Let's say I'm really really offended at your post. So offended that I decide to plant a terabyte drive full of child porn in your house, then break into your house and "uncover" it. I admit to everything except planting the drive ("The guy wanted to sell me a drive full of kiddy porn, so I broke in to see if it was real so I could take my information to the police"). I face a fine/misdemeanor for burglary (or nothing and get lauded as a hero), you face at best a lengthy court battle along with the social stigma of being accused of being a pedophile, and at worst registration on the sex offenders list and possibly decades in prison.

And let's not get into what might happen to multi-billion dollar corporations who can pay any "gathered evidence illegally fine" without any trouble (even if it's millions). Do you really want a situation where any big company could send you to prison on a whim?

Re:Illegally obtained evidence

[Anonymous Coward]

Without going into special cases, can anybody tell me why illegally obtained evidence should not be accepted?

It would encourage all sorts of unethical and illegal behavior, as well as muddy up - and likely gum up - the justice system. What's worse is the illegal and unethical behaviors it would encourage would likely be carried out by underlings in a way to protect the attorneys (or DAs), similar to how presidents of this country or old mob bosses used to be able to keep a clean nose while doing illegal activities. You'd likely end up with agents of the law who are essentially criminal masterminds in order to improve their conviction rate or win the big cases that get them in the headlines and furthers their career, and you'd also encourage martyr-type of behavior.

You just can't give incentives to law enforcement-types to break the law or there's all sorts of nasty stuff that would happen. Just look at the disgusting behavior that arises from civil forfeiture laws -- and I tend to think most police at least believe they're doing the right thing.

Re:Illegally obtained evidence

[Anonymous Coward]

The reasons are twofold.

First to protect the innocent from vigilantes. If you don't have sufficient evidence to convince a judge to let you check it out legally, you are likely profiling someone. If you don't have a blanket ban on illegally collected evidence, the threat of getting caught breaking and entering is far lower than the "reward" of finding something to put away the neighbors you don't like.

Second, improperly gathered evidence can't be trusted. It could have been planted or tampered with before being presented as evidence. Additionally, the act of gathering it could end up destroying other evidence. Of course the obvious fingerprints/dna contamination, but also positioning of evidence in relation to the rest of the crime scene. Improperly tapping someone's phone could tip them off, cause damage to the phone equipment or not provide sufficient context to be certain it was in relation to the crime in question.

Re:Illegally obtained evidence

[Lloyd_Bryant]

Am I the only one who find the whole issue about illegally obtained evidence not being admissible in court preposterous?

Let's say I go out and kill somebody, but the only evidence against me it is an illegally obtained wire-tapping. It doesn't make me any less guilty. And the people who obtained it illegally obviously need to be prosecuted but it still shouldn't change anything in terms of me. Obviously in this case most people would argue that making me walk on a technicality is not in everybody's best interest. Without going into special cases, can anybody tell me why illegally obtained evidence should not be accepted? Evidence is evidence and it carries its weight irrespectively of how it came about.

For the record, I like the RIAA's actions as little as the next guy, but that's not what we're discussing here.

The suppression of the illegally obtained evidence is a deterrent. If you know that illegally obtained evidence isn't admissible, then you won't go out and commit a crime in order to obtain such evidence. Without such a restriction, the use of illegally obtained evidence would become commonplace (especially in cases such as your murder scenario, where the tapper would be considered a hero by the community, and probably never punished or given a token punishment for the criminal act).

Also note that illegally obtained evidence is not *always* inadmissible. If I tap into your phone line for the purpose of using it for free phone service, and I overhear you talking about the killing, I may be able allowed to testify against you. The ban is primarily on those committing illegal acts for the express purpose of gathering evidence. Which is exactly what MediaSentry was doing for the RIAA.

Re:Illegally obtained evidence

[Jason Levine]

Not only that, but if illegally obtained evidence was admissible, people could be "raided" purely because certain people in power (politicians, police, etc) didn't like them. Suppose your city's mayor is corrupt and decides that you were a threat to him. He orders the police chief (his best buddy in corruption) to arrest you under some trumped up charge. Doesn't matter what, that charge isn't meant to stick. However, after arresting you, they fish through all of your stuff searching for something illegal to pin to you. They don't have a warrant to do this and so it is illegal, but it doesn't matter to them. They uncover something (everyone's broken some law at some point) and switch charges to the one with the (illegally obtained) evidence.

Now, if the court accepts the illegally obtained evidence, they are validating a corrupt mayor's abuse of power. This is likely a bigger crime than the charges that the illegally obtained evidence supports. If they toss out the illegally obtained evidence, they're letting someone guilty of what is likely a minor crime go free, but they are dealing a blow against abuse of power.

Re:Illegally obtained evidence

[ILongForDarkness]

They aren't being accused of making up the evidence, just that the evidence wasn't obtained in a legal manner. The guy's lawyer isn't even saying that he didn't do it, just that if you throw out the evidence then they have no case. The pain of it for the RIAA if it does get ruled illegial would be how do they go about getting the information? Can't exactly get a warrant for evidence against "whoever it is that connects to me to get pirated material". As far as I know you have to name the suspect in the warrant. Still doesn't mean that illegal things aren't happening just that it might not be legal to find out who's doing it :)

Re:Illegally obtained evidence

[MBGMorden]

Your argument is a straw-man fallacy.

I certainly didn't see a straw man fallacy in his post.

But then again it's become in fashion to include everything under the sun as a straw man these days. I think I'm going to introduce the "Logical Accusation Fallacy". It states the invalidity of an argument due to referencing random and inappropriate logical fallacies ;).

Re:Illegally obtained evidence

[gnasher719]

Am I the only one who find the whole issue about illegally obtained evidence not being admissible in court preposterous?

Yes. You are the only one who finds it preposterous.

There are laws in place that try to discourage illegal behavior. One way to discourage illegal behavior is to make sure that you cannot gain advantage by illegal behavior. It would do no good if bank robbery was punished with a $100 fine. In this case, trying to find evidence by illegal means is discouraged by making any evidence found that way inadmissible.

There are more reasons. Evidence has to be trusted. If evidence has been "found" by illegal means, how can you possibly trust that evidence? If MediaSentry did some illegal wiretapping, how can you trust them that they didn't do some even more illegal to "improve" the evidence they found? Like faking a few screen shots and so on.

Next reason: There are things like client-attorney privilege, rights of no self incrimination, privacy rights. These rights basically guarantee that to some degree you can "get away" with things. The RIAA bosses and their lawyers rely on this to a huge degree themselves (or how many of them would be put away for drug abuse otherwise? ). Destroying this right would destroy the fabric of human social life. Do you want to live as a monk (and they probably do things in the night that they shouldn't)?

Next reason: Wiretapping wasn't only done against the guilty, it was done against everybody. Making illegally obtained evidence inadmissible makes sure that nobody breaks the law in an attempt to find evidence, especially when the victim of the illegal activity hasn't done anything wrong.

Re:Illegally obtained evidence

[HikingStick]

While IANAL, my understanding is that the US legal system bars illegally gained evidence as a protection of civil rights and protections against unreasonable search and seizure. I agree, morally, that someone is either guilty or not guilty, regardless of the source of the evidence that is used, but our legal system has decided that it does not want to use any such "tainted" evidence. In addition (again if my non-lawyerly understanding is correct), US courts bar any further evidence that may have been discovered as the result of any action taken on illegal evidence. For example, if an illegal wiretap led to a search at a residence that turned up a suspected murder weapon, the search and the weapon are considered "fruit of the forbidden tree" and are barred from evidence if it is proven that the wiretap was conducted illegally.

I, for one, tend to believe that the law-abiding have nothing to hide, so there are times when I abhor our system for letting people off on technicalities. At the same time, I've known people who were falsely accused, and I'm glad they were able to use the legal system to their benefit.

Re:Illegally obtained evidence

[twidarkling]

Actually, the strawman argument goes thusly:

No one likes to see murderers go free.
The only evidence to prove a murderer guilty was illegally obtained.
Thus, illegally obtained evidence should be admissible.

Seems almost reasonable, until you remember that the case at hand is a civil suit, so breaking the law to win a civil suit is hardly on the level of any kind of criminal trial. QED.

Re:Illegally obtained evidence

[twidarkling]

My kingdom for an edit.

I just realized:

I think I'm going to introduce the "Logical Accusation Fallacy". It states the invalidity of an argument due to referencing random and inappropriate logical fallacies ;).

Appeal to ridicule! "Look how silly this person is! They actually think this! How can you possibly believe anything they say?!"

Re:Illegally obtained evidence

[Jesus_666]

Well, they could apply for a PI license, for starters. One of the central points is that they did stuff that counts as a private investigation while not having the license that permits them to do so.

Re:Illegally obtained evidence

[gnasher719]

I, for one, tend to believe that the law-abiding have nothing to hide, so there are times when I abhor our system for letting people off on technicalities. At the same time, I've known people who were falsely accused, and I'm glad they were able to use the legal system to their benefit.

I tend to believe that the number of people who abide all the laws all the time is very, very low. And I believe that law-abiding people very often have a lot to hide. A slashdotter wouldn't want the RIAA to know that he downloaded the latest Britney Spears record, but he would even less want his fellow slashdotters to know that he _purchased_ it.

Re:Illegally obtained evidence

[HikingStick]

LOL...thankfully, I can say that I've done neither!

Re:Illegally obtained evidence

[metaforest]

This whole issue ties to a concept in Law.

Namely, the fruits of a poisonous tree.

It is not acceptable for a party to obtain benefit from the fruits of their criminal act.

This principle has a lot of implications, only one of which is rejecting evidence obtained illegally.

Ramifications if motion is allowed

[NewsWatcher]

My question is what will happen next, if this motion is allowed.
The implication of such a finding is that MediaSentry broke the law. As I understand it, state and federal laws.
I would assume law enforcement agencies would be forced to act against MediaSentry.
Would that mean the organisation packs up and moves to Russia (or some other less restrictive country) to conduct their operation, or would it continue operating in the USA with a different brief?
Would any money MediaSentry has gathered from its clients be confiscated as proceeds of crime?
Would any previous law suits agreed to be overturned by such evidence?

Re:Ramifications if motion is allowed

[twidarkling]

My question is what will happen next, if this motion is allowed.
The implication of such a finding is that MediaSentry broke the law. As I understand it, state and federal laws.
I would assume law enforcement agencies would be forced to act against MediaSentry.

Sort of. They could go to a grand jury, and present a very weak case on purpose, in order to get a no-bill.

Would that mean the organisation packs up and moves to Russia (or some other less restrictive country) to conduct their operation, or would it continue operating in the USA with a different brief?

I can't see a Russian company being allowed to testify in US procedures without needing to still follow US laws, so a move wouldn't help. It'd be more likely they'd "close the company," then resurface as someone else.

Would any money MediaSentry has gathered from its clients be confiscated as proceeds of crime?

If they were actually charged and convicted, it could be. There's a number of punishments available to a corporation.

Would any previous law suits agreed to be overturned by such evidence?

If a case was finished, it would be up to the defendant to push for an appeal, and then it would need to be reviewed, and enough evidence would need to be found to support the relief of either dismissal of the suit, or a new trial. As not only is the law in each state different as to what's permissible, every jury and judge has different opinions as well, so it is completely possible that not every suit that used MediaSentry would be overturned.

A Little Flashback...

[bagsta]

A little flashback regarding MediasEntry's and RIAA's methods:
http://torrentfreak.com/riaa-sued-for-fraud-abuse-and-legal-sham-090301/
http://torrentfreak.com/riaas-week-of-hell-080927/
http://torrentfreak.com/copyright-lawyer-exposes-riaa-legal-bullying-080730/

Lipreading, interferometry

[Mathinker]

> Actually it is illegal to record a person's voice without their consent in
> some states. You may record video, but not the audio.

Makes me wonder if its a crime for someone to use lipreading skills on the video to decipher what was said.

I love the weird geek-logical inconsistency of law. For example, what if I record a video of a reflective membrane with a laser interference pattern on it, would I break the law if I then, at a later time, analyzed the video to accurately reproduce the sound waves which made the membrane vibrate? Or did I break the law when recording the video (the actual data of the crime might be important because of the statue of limitations)?

Re:Lipreading, interferometry

[sbeckstead]

I've always wondered what the Statue of limitations looked like. I mean is it a large hand in the universal "STOP" position? or is it maybe a scale with a heavy weight on one side? Discuss...

Re:Lipreading, interferometry

[NewYorkCountryLawyer]

I've always wondered what the Statue of limitations looked like. I mean is it a large hand in the universal "STOP" position?

Of course not. It's a tall lady with flowing robes with a book in one hand and her other hand in the universal "STOP" position.

Re:Lipreading, interferometry

[Mathinker]

Oooops!

And now I see that I also mistyped "date" as "data"....

Re:RIAA still douchebags

[houghi]

I do as well. In my time many nuclear explosions took place and I survived all of them.

What is interesting...

[SchizoStatic]

I live in Minnesota and have yet to hear about this story on local news outlets. Yet I have heard several other RIAA cases on the local news. I wonder what is gonna happen when this actually gets started.

Re:What is interesting...

[Nefarious Wheel]

I live in Minnesota and have yet to hear about this story on local news outlets.

Solution: Talk to your local news outlets. They may simply not have heard.

Re:IF media sentry were a party

[Clay Pigeon -TPF-VS-]

IANAL. Establishing bias is a side matter to keeping evidence out because it was obtained illegally, right?

No get-out-jail-free card this time for RIAA

[Drakkenmensch]

Usually, when the RIAA thinks they're going to lose a case, they just retract their motion so that there can't be a landmark or precedent set against them and they can keep attacking other people until they win. But since THIS motion is NOT coming from them, they're not going to be able to pull off their usual legal equivalent of "Ha ha ha just kidding" run-for-the-hills. Mediasentry's evidence, once discredited thoroughly, will leave the RIAA without any ammunition in their legal minigun to keep spray-painting students, children and dead grandmothers with a shower of unethical (if not outright unconstitutional) tactics.

Re:RIAA still douchebags

[geminidomino]

That's not true at all. Stop spreading this shit.

Even a cockroach can't survive a lawyer attack. Sheesh.

Re:The Sad Thing

[rtb61]

Side issue is if the judge rules against the evidence, the judge immediately implies that criminal charges should be brought against media sentry for illegally gaining that evidence and the RIAA for conspiring with media sentry in those criminal endeavours.

Re:RIAA still douchebags

[Bandman]

I love it when moderation is actually funnier than the comments.

In case it changes, right now it reads

"Cockroaches survive nuclear explosions" = +5 Funny
- "and lawyers" = -1 Redundant

The 5th Amendment

[NewYorkCountryLawyer]

What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.

Re:The 5th Amendment

[Jesus_666]

It's good they don't thake the Fifth. I don't trust them to give it back.

Re:The 5th Amendment

[amicusNYCL]

What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.

How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand?

If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?

Re:The 5th Amendment

[NewYorkCountryLawyer]

What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment. How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand?

If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?

That's easy. The guy from MediaSentry has to take the stand to explain what he did and lay a foundation for his bogus evidence. Then, on cross examination, or on 'voir dire', when he is asked about his licensing issues, he should -- if he is well advised by his family lawyer or a criminal lawyer -- take the Fifth. Because otherwise he would be admitting under oath to things that may well land him in a Minnesota prison.

If he does take the 5th, then all of his testimony and the materials would be stricken.

Re:The 5th Amendment

[NewYorkCountryLawyer]

WHOOPS. I FORMATTED MY PREVIOUS COMMENT INCORRECTLY. SORRY ABOUT THAT. HERE IT IS CORRECTLY FORMATTED:

What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.

How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand? If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?

That's easy. The guy from MediaSentry has to take the stand to explain what he did and lay a foundation for his bogus evidence. Then, on cross examination, or on 'voir dire', when he is asked about his licensing issues, he should -- if he is well advised by his family lawyer or a criminal lawyer -- take the Fifth. Because otherwise he would be admitting under oath to things that may well land him in a Minnesota prison. If he does take the 5th, then all of his testimony and the materials would be stricken.

Re:The 5th Amendment

[amicusNYCL]

So even if he does take the 5th (or specifically because of it?), the evidence would still be stricken? The only difference is that he wouldn't be charged with a crime, correct?

Re:RIAA still douchebags

[twidarkling]

Also:

That's not true at all. Stop spreading this shit.

Even a cockroach can't survive a lawyer attack. Sheesh.
--

Is +3 Insightful

Re:The Sad Thing

[twidarkling]

Yes, it might be easy, but wouldn't every person involved in gathering the evidence require a PI Licence? So repeat that by however many employees they have.

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[account_deleted]

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Re:Counter-attack?

[twidarkling]

The fun thing about the US is she could sue no matter what. If this motion *passes* she would have good grounds to sue, thus making a settlement a likelyhood. I could see her getting legal fees back, *if* the entire case goes her way. If the case goes against her, any suit would be seen as spurrious at best.

Re:The Sad Thing

[twidarkling]

okay, so they'd save training costs, but they'd still lose time in actually needing to train whoever along the chain needs to be trained, plus costs of filing for a licence for each individual, since you can't get a licence for the overarching company, correct? Each person would still need a personal licence? I'm honestly not sure, since I've never really looked in to becoming a PI, since this isn't a 1920s pulp novel. Seems like it'd be a bit of a drain, then, but not a killer by any means.

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[account_deleted]

Comment removed based on user account deletion

Re:The Sad Thing

[tinkerghost]

Alternately, one person in the department has the license and the others are working under his supervision and in accordance with approved practices. Which way it works seems to be dependent on the state.

Re:The Sad Thing

[twidarkling]

*snerk* Yeah. Hardly a killing blow. So why didn't they do this in the FIRST place? Buncha lazy arses. Lazy and CHEAP.

Re:Will they prevail, though?

[sbeckstead]

It would seem to me that if you give the court a straw man (illegal interception) to throw all over the floor the real motion (Media sentry acted contrary to the PI Laws) you may actually get the motion with the most credibility to carry. It may be cynical of me bet we used to add a few lines to our e-mails and Usenet posts to satisfy the line eater too.

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[account_deleted]

Comment removed based on user account deletion

Re:RIAA still douchebags

[cdhgee]

And archaeologists hiding in 1950s fridges, if you believe what you see at the movies...

Re:Grace and Carnage!

[TaoPhoenix]

Let's make a CopyLeft Concept Album!

Re:RIAA still douchebags

[steveg]

Lead lined fridges.

That makes all the difference, you see.

Re:RIAA still douchebags

[Nefarious Wheel]

I'm a little dubious about the wiretap stuff, since MediaSentry was a party to the communication and not an outside snooper.

The brief showed just exactly how MediaSentry was an outside snooper. It pointed out how you needed to be part of a private arrangement in order to access the material - shown by login to KaZaA, violation of KaZaA's terms of service which showed MediaSentry was clearly an outsider, one without permission to view the transmissions.

This meant it wasn't a public performance they were monitoring (a listed exclusion) but a private one. This was the key re: the TOS violation, that it meant the investigations were into a private matter, not a public one. Private ones require a PI license.

MediaSentry was performing information gathering within this context in the pay of others to do so, which required a PI license within the relevant statute.

Gathering information on others while in this context (other machines to which Jammie's computer allegedly communicated with) was a violation of the Pen Register act (which covers routers etc.).

This all adds up to Private + Investigation, which MediaSentry were not licensed to do. Doing unlicensed PI was a criminal act where the investigation took place. Evidence gathered illegally is by long precedent not admissible in court. If the court grants this motion, Jammie is off the hook and a valuable precedent in this MediaCircus will have been set.

Re:RIAA still douchebags

[number11]

Gathering information on others while in this context (other machines to which Jammie's computer allegedly communicated with) was a violation of the Pen Register act (which covers routers etc.).

I understood the "other machines to which Jammie's computer allegedly communicated with" to be MediaSentry's computers. So does that mean it's a violation when my ISP's routers log connections? When Google remembers my search strings and what I clicked on? I don't really see why there's a difference, and both of those have been used in criminal and/or civil cases in the past. It would be wonderful if retaining logs of that sort was illegal, but since everybody seems to do it, I'm wondering what the distinction is.

(They still failed to prove that it was Jammie at the helm, but all they have to do is convince the jury that it was more likely than not, since this wasn't a criminal trial. I can see a jury believing that.)

I'm not questioning the PI violations, those seem to be true (and if we had any prosecutors with spines, criminal charges would be levied against MediaSentry and its employees). And they violated the KaZaA TOS, of course, for what that's worth (not much, I'd hope).

Re:RIAA still douchebags

[metaforest]

does that imply that you are:

a. A Douchebag
b. A Cockroach
c. A Lawyer
d. GTFO
Please choose one.

Inquiring Minds would like to know.

Re:RIAA still douchebags

[metaforest]

Tell that to MDY in MDY v. Blizzard...

MDY got assraped for providing tools that allowed end users to violate TOS.

OTOH: Since KaZaA is not a party to this suit I expect the judge
with not rule on the issue of KaZaA's TOS.

"Completely biased"?

[mi]

to stop a completely biased party (oh, like your ISP or MediaSentry) from gathering evidence against you for a trial?

Sorry, this is plain retarded. The entire judicial system is based on two "completely biased" parties gathering (and presenting) evidence and otherwise arguing their points in front of judges/jurors.

I'm not a lawyer but it sounds like this lawyer finally did his homework and will probably stop the trial altogether due to lack of any evidence at all.

You aren't a lawyer, that's for sure. You've never even read a detective story, it seems. Illegally-obtained evidence is inadmissible, only when police do it. Because — it was decided long ago — it is more important to keep the government from illegal actions (since they have vast powers over our daily lives as it is) than to convict a particular person.

The case in question is not a criminal one (brought about by the government), but a civil one. Two private parties,equal before the law, are in dispute... The standards for evidence are different, because RIAA does not have the same powers as police. (The standards for jury verdicts are more relaxed too, BTW, but that may be too much information for you at this point.)

I hope the RIAA learns its lesson and stops these frivolous lawsuits.

Right, because defending one's legitimate interests in court is frivolous...

Re:"Completely biased"?

[Nefarious Wheel]

Illegally-obtained evidence is inadmissible, only when police do it

Nope. Illegally-obtained evidence is inadmissable, period. Not just when police do it. It's one of the reasons private investigators have to be licensed in the first place; the opportunities for abuse otherwise are so high the exclusion is required as a deterrent. "Your honour, I'd like to present Exhibit B, the signed transcript of the confession obtained on our behalf by the firm Thumbscrew, Stocks and Waterboard Inc. Please ignore the poor handwriting, he had to hold the pen in his teeth."

Re:RIAA still douchebags

[Nefarious Wheel]

I understood the "other machines to which Jammie's computer allegedly communicated with" to be MediaSentry's computers

Really? I thought they were other PC's to which Jammie's KaZaA instance was allegedly seeding, i.e. others to which she may have been "downloading". Not MediaSentry's computers.

Re:RIAA still douchebags

[Nefarious Wheel]

And they violated the KaZaA TOS, of course, for what that's worth (not much, I'd hope).

Actually it's worth rather a lot, but not in the sense you mean I think. Because they violated the KaZaA TOS they were shown to have invaded a private conversation, not a public one. That put them on the wrong side of the law with regard to whether it was a "private investigation" that required a licence. I thought it was rather a cool argument.

Re:The Sad Thing

[Nefarious Wheel]

I'm honestly not sure, since I've never really looked in to becoming a PI, since this isn't a 1920s pulp novel.

However, there is a large and growing field in computer forensics, according to the closing speaker at TechEd 2007 in Australia (a Parliament-level security person iirc, sorry can't recall his name). Not enough geeks with enough law & forensic training to open up other people's computers with aplomb* and I believe there could be an interesting (if occasionally stressful) career there for someone. It's pretty much guaranteed not to become outsourced. I think, in certain carefully-controlled circumstances, they'll even let you switch on the siren.

*A special case-breaking tool for Macintosh I think.

Pen and Register Argument is Clueless

[herbierobinson]

These new lawyers are clueless about the technical issues around the trap and trace claim (of course it looks like the RIAA lawyers are , too). It's illegal to record traffic on a network you don't own (i.e., the Internet). It's not illegal to monitor the network traffic within your own machine or even on a network you own. By the complaint's own description, the traffic was to (and therefore eventually within) the receiving party's computer. Look at this another way: If what Media Century did is illegal, then it's illegal to use TCP on the Internet PERIOD, because there is no significant technical difference between formatting the downloaded traffic into an ASCII dump and formatting the downloaded data into a music file. It all happens on the receiving party's computer. Oh, and on top of that, the TCP software in the receiving computer needs to know and use the IP addresses from both ends of the connection or the connection won't even work. It's pretty clear that what the trap and trace law applies to is a third party capturing traffic they aren't a party to...

Another implication of these claims is that it would be illegal for ISPs to log any IP addresses for later use by law enforcement.

The detective issue is a little more interesting. It could be thrown out because it's involved with Interstate Commerce, but if not, it means it will be all but impossible for anybody other than law enforcement to investigate spammers and other kinds of computer fraud. And we know how ineffective law enforcement is at solving computer crime. It will be a really really bad thing if this sticks.

Oh, and in case you didn't notice, they are also arguing that the RIAA should be legally bound by ZaZaA's shrinkwrap notice!

And all of this to protect some shlub who believes musicians should starve to death rather than get paid for the fruits of their labor.

Re:Pen and Register Argument is Clueless

[Nefarious Wheel]

if what Media Century did is illegal, then it's illegal to use TCP on the Internet PERIOD, because there is no significant technical difference between formatting the downloaded traffic into an ASCII dump and formatting the downloaded data into a music file.

I normally don't feed bridge-dwellers, but for a person espousing a technical background that is a remarkably incoherent statement. And I'm a TCP-IP specialist, with certs. Did a wookie give you that one?

Oh, and in case you didn't notice, they are also arguing that the RIAA should be legally bound by ZaZaA's shrinkwrap notice!

No, no, no, no, no. Mama Mia. They are arguing only that by violating the terms of service they weren't invited into the conversation. This made the difference between conversations in the public domain and conversations in the private domain. It's the difference between public investigation and private investigation. The latter needed a license.

And all of this to protect some shlub who believes musicians should starve to death rather than get paid for the fruits of their labor.

Tell that to Roger McGuinn, Chuck Berry, John Fogerty and others. They're starving because the RIAA didn't pay them any royalties. Personally I think that rather sucks.

Re:Pen and Register Argument is Clueless

[herbierobinson]

I have a BSEE from Cornell (class of 74) and I am employed maintaining the kernel TCP/IP stack for a commercial operating system (and have been for about 10 years). I have modified the Ethernet drivers and the TCP/IP protocol layers for enhanced performance and I am currently starting to work in drivers for 10G Ethernet. I am quite familiar with the entire data path from the hardware right on up to the socket API.

Perhaps it's your "certs" are lacking. I don't have "certs" I have 30 years of real world experience.

Re:Pen and Register Argument is Clueless

[Nefarious Wheel]

I'll see your 30 years and raise you ten + NASA DSN. And I suggest you re-read the brief.

Re:Pen and Register Argument is Clueless

[Nefarious Wheel]

By the way, I clicked on your homepage. I see you're in the music industry, which explains your passionate response.

But the reason I'm responding here is that I love your response to unsolicited email. Good one. I'd ask to use it but I'm about 12,000 miles away from where those laws apply so not much point. But +5 funny, mate.

Re:RIAA still douchebags

[number11]

I'm not totally sure how KaZaA works, but with the P2P I'm familiar with (gnutella, slsk, emule, BitTorrent) there wouldn't be any certain way to know who she was uploading to (except for the last, no way at all, unless MediaSentry is lurking at her ISP watching her datastream). The only sure thing they can say is, we were able to download that file from her.

Re:RIAA still douchebags

[number11]

Because they violated the KaZaA TOS they were shown to have invaded a private conversation,

Well, sorta. But it was a "conversation" between their computer and hers, so "invaded" is a little strong. I assume you're saying that they did not have a right to have that conversation. Could be, it just intuitively seems weak to me, but I guess the lawyer thinks it's worth arguing, and maybe that's why he's a lawyer and I'm not.

Re:RIAA still douchebags

[AG the other]

http://www.youtube.com/watch?v=S-6cIy_s8pQ

Mythbusters test roaches, flour beetles and fruit flies for radiation resistance. Roaches don't win...

AG

Re:The Sad Thing

[eam]

Wouldn't they also need to be licensed in every state?

Re:RIAA still douchebags

[Tubal-Cain]

Or perhaps the explosions were in the Nevada desert or Japan, and he wasn't?

Re:RIAA still douchebags

[metaforest]

You seem to be implying that I should as a matter of course include on future postings..... of this nature....

I think you have a point.