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?

[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?

[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?

[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?

[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?

[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?

[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?

[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: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]

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.

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!

[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!

[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).

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.

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?

[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.

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.

[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.

[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.

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.

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

[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: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: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.

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: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: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: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: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...