RIAA-Backed Warrantless Search Bill In California

lordvramir writes "If you run a CD or DVD duplication company and you're based in California, you may soon be subject to warrantless searches in order to 'fight piracy.' California Senate Bill 550, introduced by Sen. Alex Padilla (D-Pacoima), has slowly begun making its way through the state legislature as a way to cut down on counterfeit discs, but critics worry that it may open the door to Fourth Amendment violations." This fits in well with other recent moves to neuter the Fourth Amendment.

Comments

Oh no! my disc replication plant!!

[bit trollent]

That's not the most controversial part of the bill, though. SB550 also has provisions that would allow law enforcement to begin inspecting disc replication plants without a warrant in order to verify that they're complying with the law. These inspections must take place during regular business hours, but if officers find equipment that they suspect is being used for non-legit purposes, it can be seized.

I wonder how the summary somehow left out that these warrentless searches are of commercial disc replication plants.

I would assume that all commercial buildings are subject to warrentless searches to enforce various safety and workplace laws...

Anyway, I don't support any degradation of the 4th amendment, but I don't appreciate the deceptive manipulation of large numbers of people who can be counted on to not read the fucking article either.

Re:Oh no! my disc replication plant!!

[profplump]

You would assume wrong. Warrants are required to enter commercial property, including workplaces. This applies to OSHA, fire inspections, etc., and has been tested in federal court (Marshall v. Barlow’s, Inc). There are cases where a business must subject itself to an inspection in order to qualify for a license or other certification. But that's the business owner requesting an inspection, not the government demanding one, and a failure to allow the inspection results in a failure to issue the license, not in a mandatory inspection or seizure of property. It works just like electrical inspections in your home -- when you have new work done, you must request an inspection, and a failure to pass an inspection might lead to your property being condemned, but at no point in the process are you required to submit to a search/inspection, and you if you choose to allow one you can prepare for it and limit the scope of the inspection to the relevant portions of your home.

If law enforcement has probable cause to believe that a business is participating in copyright infringement that can *already* get a warrant. No new law is needed to authorize that action. This law would mean that they don't need probable cause and can just come in and hassle legitimate business owners while threatening to seize the equipment necessary for their day-to-day operations, which doesn't sound much like justice to me.

That's just it - safety and workplace laws

[langelgjm]

I would assume that all commercial buildings are subject to warrentless searches to enforce various safety and workplace laws...

But that's just it - there are exceptions to warrantless searches on grounds such as public safety and worker safety... e.g., health inspections, nursing home inspections, OSHA compliance, etc.

Extending those kinds of warrantless searches to look for potential copyright infringement is not in the same vein. Where is the pressing public necessity that justifies the encroachment on the 4th Amendment? To me, it just sounds like the copyright industries want the taxpayer-funded police to act as their own private security force. What if every industry took that approach? Why not have warrantless searches of research labs in order to make sure there is no patent infringement going on?

Maybe Constitutional, Maybe Not

[Grond]

For decades the Supreme Court has recognized the constitutionality of warrantless administrative inspections of closely regulated businesses with a long tradition of close government supervision. "Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Marshall v. Barlow's, Inc., 436 U.S. 307, 313 (1978). This has come to be called the Colonnade-Biswell doctrine, after the cases of Colonnade Corp. v. United States and United States v. Biswell. Industries in which warrantless searches have been approved include pawn shops that sell firearms (the Biswell case), liquor stores (the Colonnade case), quarries, and automobile junkyards.

However, even if warrantless searches of CD duplication businesses are allowable as a threshold matter, there are still three important limits on those searches. First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. Third, the statute's inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. See New York v. Burger, 482 US 691, 702-03 (1987).

Here, it's not clear to me that CD duplication businesses are closely regulated businesses with a tradition of close government supervision. It's possible that the copyright laws (particularly the criminal copyright laws) amount to such regulation, but in my opinion it would be a close case. In most cases there is some kind of government licensing regime, and I don't think a license is required to operate a CD duplicating business. But it's important to note the limits on those searches that would still be in place even if they are allowed.

Re:What the hell?

[Seumas]

Just google "cops warrant wrong house" for an endless flood of no-knock warrant stories where cops broke down the door of the wrong house. They often end with an innocent citizen (of course, until convicted, aren't they ALL innocent?) being shot or even killed or with a home owner defending themselves against the home invasion by shooting the police (which never works out well for the victim).

http://www.google.com/search?q=cops+warrant+wrong+house

Re:Democrats back unconstitutional bill...

[obergfellja]

I thought the Dems were all about personality andshit. Fuck whoever you want in the ass wherever you want using government condems.

So now they want to fuck everyone in the ass with taxes and no warrent searches.

Had enough Change yet?

This is not really a republican or democrat idea but a recent trend of infringement on American's Fourth Amendment. Indiana has recently passed a bill to have warentless searches. If a police officer suspects any "Funny business" of any sort, they can intrude without a warent. This is fine and dandy when an actual crime is happening, but they can do it at any time, and if you resist in Indiana, you can be arrested for impeding an officer's investigation. If you attack an officer while he/she barges in because you are trying to protect your property, you will be charged with Assault of an Officer (which is a federal crime). It has passed in Indiana, and it is has set forth for similar laws in Texas, California, and anyone else. If someone suspects that you are doing something bad or wrong, they can call the cops and infringe on your fourth amendment.

This is a recent bill passed in indy, so it can be overturned if it is taken to to the feds, but hasn't yet.

http://www.techdirt.com/articles/20110518/17015914326/what-4th-amendment-indiana-sheriff-says-random-warrantless-house-to-house-searches-are-okay.shtml

Re:What the hell?

[anegg]

Quoting from the inset document in one of the articles, "In the 1920s, legal scholarship began criticizing the right [to resist unlawful entry by a police officer] as valuing individual liberty over physical security of the officers."

At what point in the history of the United States did "legal scholarship" become an authoritative source of law capable of destroying inherent natural rights not granted by the US Constitution but specifically called out as examples of existing rights such as those expressed in the 4th amendment such as "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..." To say that there is no right to resist an unlawful entry (and arrest) because there are now "after the fact" remedies available that may not have been available to those in the 18th century misses the point that unlawful entry and arrest can be just as effectively used to suppress and intimidate now as it was then. Exercising remedies to get out of jail after an unlawful arrest takes time and money, time spent in jail and fighting an unlawful arrest takes away from time required to earn a living (try missing 2 weeks of work and income - see what happens to your bills and your job), and the stain of the arrest may take a long time to fade, if in fact it ever does.

Without *some* possibility of a negative consequence to an unlawful entry and/or arrest, what is left to hold police back from engaging in whatever related conduct they so choose, so long as they know that their superior officers (who aren't elected officials) won't hold them at fault or punish them?

Democrats^H^H^H statists back unconst. bill

[fnj]

You're right; this is not Democrat vs Republican. It is statist vs libertarian.

If there was EVER any definable difference between Democrat and Republican, it has been gone for a LONG time. To SOME degree there is a remnant of liberal (D) vs conservative (R) difference, but even that is obsolete thinking. It is about the other orthogonal axis. It is about the lure of power vs a willingness to LEAVE THE HELL ALONE. It is about caving in to faceless demonic corporations vs seeing to the rights of the people. It is about tilting at windmills: war on drugs, war on terrorism, war on copyright "infringement."

Re:This is one of the few that is legal and 'right

[Grond]

Businesses are not people, they don't have any rights against warrantless search.

This is completely false. "The Court long has recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable." New York v. Burger, 482 US 691, 699 (1987).