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?

[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?

[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: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?

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.

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.

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: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.

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]

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: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: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

[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: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.