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Court Asked To Strike All MediaSentry Evidence

kdawson posted more than 4 years ago | from the born-tainted dept.

The Courts 204

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."

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204 comments

mod points (-1, Offtopic)

joocemann (1273720) | more than 4 years ago | (#28177413)

please

Re:mod points (-1, Offtopic)

joocemann (1273720) | more than 4 years ago | (#28177461)

(its a joke)

Re:mod points (1, Informative)

Anonymous Coward | more than 4 years ago | (#28177535)

nobody's laughing

African Americans (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28177799)

stop with the african-american bullshit. none of you have ever been to africa, so you cant be african americans. youre black americans, there isn't anything wrong with that either. except that a few of you are niggers. the biggest niggers want to be called african americans but dont want to call white people anglo americans. thats because theyre niggers. the end.

RIAA still douchebags (0)

kbsoftware (1000159) | more than 4 years ago | (#28177417)

RIAA, ASCAP and one nuke problem solved :)

Re:RIAA still douchebags (5, Funny)

Norsefire (1494323) | more than 4 years ago | (#28177427)

Cockroaches survive nuclear explosions.

Re:RIAA still douchebags (0, Redundant)

AceofSpades19 (1107875) | more than 4 years ago | (#28177855)

and lawyers

Re:RIAA still douchebags (5, Funny)

geminidomino (614729) | more than 4 years ago | (#28180539)

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

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

Re:RIAA still douchebags (2, Funny)

Bandman (86149) | more than 4 years ago | (#28180997)

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

Re:RIAA still douchebags (2, Informative)

houghi (78078) | more than 4 years ago | (#28179975)

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

Re:RIAA still douchebags (2, Informative)

number11 (129686) | more than 4 years ago | (#28177955)

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.

IF media sentry were a party (0)

Anonymous Coward | more than 4 years ago | (#28178789)

they are no longer an independent source. Therefore their information is suspect.

Re:RIAA still douchebags (0)

Anonymous Coward | more than 4 years ago | (#28180411)

Nice job with the FPW! Classic one-liner entry "ya, sure" to make it seem like you're replying to the parent, then off you go on your own little rant. How cute!

Where's the sting, oh thy sword? (5, Insightful)

InMSWeAntitrust (994158) | more than 4 years ago | (#28177421)

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? (5, Interesting)

eldavojohn (898314) | more than 4 years ago | (#28177469)

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 [state.mn.us], 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.

The Sad Thing (4, Interesting)

jarrettwold2002 (601633) | more than 4 years ago | (#28177731)

It's so depressingly easy to get a private investigator license in various states, usually there are some training hour requirements and some fees. Sadly, what probably would have been a grand in licensing fees, is likely to cost MediaSentry a case. Good job guys, love your due diligence!

Re:The Sad Thing (1)

rtb61 (674572) | more than 4 years ago | (#28180903)

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:Where's the sting, oh thy sword? (1, Funny)

Schemat1c (464768) | more than 4 years ago | (#28177811)

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

You're funny.

Re:Where's the sting, oh thy sword? (2, Interesting)

clarkkent09 (1104833) | more than 4 years ago | (#28177821)

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? (4, Informative)

linzeal (197905) | more than 4 years ago | (#28177475)

judge has not ruled on this yet.

Re:Where's the sting, oh thy sword? (1)

InMSWeAntitrust (994158) | more than 4 years ago | (#28177531)

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? (0)

Anonymous Coward | more than 4 years ago | (#28177631)

I read the PDF and it scares me a bit. See the lawyer is argumenting that MediaSentry monitoring it's OWN traffic, in it's own network is similar to wiretapping.

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

Anyway, MediaSentry is going to have a lot of trouble in getting away with that. Investigating without a license? I can see a class action coming.

Re:Where's the sting, oh thy sword? (4, Informative)

Toonol (1057698) | more than 4 years ago | (#28177693)

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? (0)

Anonymous Coward | more than 4 years ago | (#28177695)

No. Recording a conversation is legal as long as one party knows about it.

Re:Where's the sting, oh thy sword? (4, Informative)

RattFink (93631) | more than 4 years ago | (#28177851)

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? (1)

nextekcarl (1402899) | more than 4 years ago | (#28177697)

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? (1)

woot account (886113) | more than 4 years ago | (#28177701)

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? (1)

WCguru42 (1268530) | more than 4 years ago | (#28177759)

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? (4, Informative)

RattFink (93631) | more than 4 years ago | (#28177893)

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? (1)

bwcbwc (601780) | more than 4 years ago | (#28179749)

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? (1, Informative)

Anonymous Coward | more than 4 years ago | (#28177919)

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? (0)

Anonymous Coward | more than 4 years ago | (#28179337)

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.

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

Lipreading, interferometry (1)

Mathinker (909784) | more than 4 years ago | (#28179495)

> 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:Where's the sting, oh thy sword? (4, Interesting)

Nefarious Wheel (628136) | more than 4 years ago | (#28177815)

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? (1)

blind biker (1066130) | more than 4 years ago | (#28179043)

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? (1)

fast turtle (1118037) | more than 4 years ago | (#28177899)

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? (1)

xouumalperxe (815707) | more than 4 years ago | (#28179245)

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? (0)

Anonymous Coward | more than 4 years ago | (#28178099)

Ethereal? You mean Wireshark? Wireshark isn't in a grey area, if your snooping someone elses network it's against the law without permission. That permission had better be in writing too. As a matter of fact, in many states just using the wireless from a coffee shop without making a purchases is considered illegal.

Re:Where's the sting, oh thy sword? (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28177639)

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? (2, Informative)

arbiter1 (1204146) | more than 4 years ago | (#28177601)

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? (1)

Jane Q. Public (1010737) | more than 4 years ago | (#28177751)

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? (4, Informative)

Trepidity (597) | more than 4 years ago | (#28177805)

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 [wikipedia.org] 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 [google.com] 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? (4, Informative)

Trepidity (597) | more than 4 years ago | (#28177981)

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? (2, Interesting)

Anonymous Coward | more than 4 years ago | (#28178473)

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? (1)

xouumalperxe (815707) | more than 4 years ago | (#28179313)

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? (2, Insightful)

VShael (62735) | more than 4 years ago | (#28179485)

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

Evidence? (5, Interesting)

Elgonn (921934) | more than 4 years ago | (#28177433)

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? (1)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28179781)

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? (1)

Xenographic (557057) | more than 4 years ago | (#28180003)

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? (1)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28180519)

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? (1)

bwcbwc (601780) | more than 4 years ago | (#28179787)

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.

I slaped the secxy puusi hared with (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28177451)

my BALLSW! it was GOODF! then I swa thate it was a moos with a turki foot? and i was loose the pont of this store on the inmtorne. FUC!

Re:I slaped the secxy puusi hared with (0)

Anonymous Coward | more than 4 years ago | (#28177985)

Translation: I am to newb to link goatse.

Nice Briefs! (2, Interesting)

plover (150551) | more than 4 years ago | (#28177503)

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! (3, Interesting)

Technician (215283) | more than 4 years ago | (#28177663)

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! (2, Insightful)

Earthquake Retrofit (1372207) | more than 4 years ago | (#28177971)

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! (1)

Technician (215283) | more than 4 years ago | (#28178817)

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! (0)

Anonymous Coward | more than 4 years ago | (#28179567)

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.

About: Terms of use.

3.2.1 Use of works

Each Work is made available to Users pursuant to a Creative Commons license identified by an icon. By clicking on that icon, you will know the conditions under which the ARTIST and JAMENDO authorize you to use his Work.

Then go to any album's page, such as this one [jamendo.com] for example and look in the right column. Below album information and statistics there is a large box "Your rights on this album" which lists what you are and are not allowed to do. (In the example linked, you need to give credits to the artist and aren't allowed to use it for commercial projects or build upon it.)

Re:Nice Briefs! (1)

Technician (215283) | more than 4 years ago | (#28179623)

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! (2, Interesting)

L4t3r4lu5 (1216702) | more than 4 years ago | (#28179253)

You can still have music. Check out Jamendo. [jamendo.com]

A lot of the music is licensed Creative Commons Attribution-Non-Commercial Share-Alike [creativecommons.org], 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 [creativecommons.org]).

You can ask for the world (5, Insightful)

initialE (758110) | more than 4 years ago | (#28177609)

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 (3, Interesting)

amicusNYCL (1538833) | more than 4 years ago | (#28178933)

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 (2, Funny)

oodaloop (1229816) | more than 4 years ago | (#28179863)

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

TCPdump? (2, Interesting)

whoever57 (658626) | more than 4 years ago | (#28177615)

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

Re:TCPdump? (4, Informative)

The MAZZTer (911996) | more than 4 years ago | (#28177641)

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? (0)

Anonymous Coward | more than 4 years ago | (#28178003)

I think evidence legally gathered should be fine. They just would have to prove their entire business properly collected and preserved the evidence.

However if they broke any laws they should be held personally (and criminally) responsible since the company they represent was not a legal business.

Additionally, any monies collected for the service should be forfeited to the state they were conducting the illegal business.

Of course they could withdraw the questionable evidence to avoid having to prove anything.

This of course is my opinion and has no bearing on actual law. In an ideal world everyone with the ability and attention to detail required to preserve it should be able to collect evidence and present it as long as it was legally gathered. They may not collect money for it unless it is a lawful business though.

Re:TCPdump? (5, Informative)

dododuh (806858) | more than 4 years ago | (#28178177)

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 [cornell.edu] 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? (1, Interesting)

Anonymous Coward | more than 4 years ago | (#28177747)

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

Re:TCPdump? (3, Insightful)

mattmacf (901678) | more than 4 years ago | (#28177963)

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 [state.mn.us]). Or simply get a license to do so.

Well, (3, Insightful)

Nekomusume (956306) | more than 4 years ago | (#28177635)

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. (5, Funny)

Anonymous Coward | more than 4 years ago | (#28177689)

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. (5, Funny)

NewYorkCountryLawyer (912032) | more than 4 years ago | (#28179761)

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. (1)

San-LC (1104027) | more than 4 years ago | (#28180517)

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!!!

Interesting but... (-1, Offtopic)

blogger11 (1561695) | more than 4 years ago | (#28177921)

If anyone knows of a really neat web page or two... Post links to them on my site: SiteList [sitelist.ca]. Feel free to browse it when you get bored too. It can have some pretty random stuff on it sometimes... Thanks guys!

Illegally obtained evidence (1, Insightful)

peterhoeg (172874) | more than 4 years ago | (#28178137)

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 (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28178247)

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 (2, Insightful)

MrMista_B (891430) | more than 4 years ago | (#28178265)

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 (3, Insightful)

Jason Levine (196982) | more than 4 years ago | (#28180725)

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 (0)

Anonymous Coward | more than 4 years ago | (#28178307)

No, because everyone is the same for the law. That means evidence gathering MUST follow the law too, otherwise the next idiot who wants to prove something can just go ahead and waterboard you because you MAY have done something wrong. Ah, hang on..

If you allow illegally obtained evidence to be valid in court, you have just rendered the evidence gathering legal, and will encourage more of it. The basic idea is to discourage law breaking. This is also what is totally wrong with what the US did with Switzerland, and what the Germans did with the stolen Liechtenstein data. I'm 100% happy with someone breaking the law having to pay up, BUT NOT WITH ILLEGAL EVIDENCE. Because that means that all of a sudden, certain parties are above the law without the citizen having had a chance to vote on this. Make no mistake, this is what dictatorships do.

Especially those who have been given extra powers to enforce the law should be above reproach. At present, they aren't.

Re:Illegally obtained evidence (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28178329)

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 (5, Insightful)

Sasayaki (1096761) | more than 4 years ago | (#28178367)

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 (1)

ILongForDarkness (1134931) | more than 4 years ago | (#28180773)

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 (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28178433)

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 (1, Informative)

Anonymous Coward | more than 4 years ago | (#28178649)

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 (0)

Anonymous Coward | more than 4 years ago | (#28178915)

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

...yes.

Re:Illegally obtained evidence (0)

Anonymous Coward | more than 4 years ago | (#28179655)

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

Easy. And already asked and answered above

If there were no penalty for obtaining evidence illegally, cops would do warrantless searches, engage in torture, etc. So the courts impose the sanction of inadmissability to discourage such practices.

Actually I think the courts don't go far enough in enforcing the law in many cases, but rather let something be admitted because "the officer was acting in good faith" in coming up with evidence. A just judge would say, "Bullshit -- it wasn't good faith; it was culpable ignorance. The clown should have known he was breaking the law in gathering the evidence and will not be given a pass by this court based on the old 'good faith' canard."

Re:Illegally obtained evidence (2, Insightful)

Lloyd_Bryant (73136) | more than 4 years ago | (#28180115)

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 (0)

Anonymous Coward | more than 4 years ago | (#28180579)

can anybody tell me why illegally obtained evidence should not be accepted? Well, for starters, how about torture-induced confessions?

Ramifications if motion is allowed (1)

NewsWatcher (450241) | more than 4 years ago | (#28178497)

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?

What is interesting... (2, Interesting)

SchizoStatic (1413201) | more than 4 years ago | (#28180043)

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.

No get-out-jail-free card this time for RIAA (2, Interesting)

Drakkenmensch (1255800) | more than 4 years ago | (#28180337)

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.

Counter-attack? (0)

Anonymous Coward | more than 4 years ago | (#28180405)

So, if this motion fails, and if the defendent looses this time, can she sue Media Sentry, on the theory that their illegal acts cost her money?

They'd have to have admitted to their actions in court, if their "evidence" is used, so why can't that be used against them later?

Will they prevail, though? (0)

Anonymous Coward | more than 4 years ago | (#28180925)

It will be fun to watch how this gets on, but looking dispassionately at it (not something that often wins awards on /.), I think the majority of its arguments are doomed to failure. Quite a lot of it seems to be creative motion practice, of the "Can't hurt to try..." kind. In particular it asks the court to accept the idea that MediaSentry can be seen as having somehow "intercepted" communications from other parties to itself (akin to arguing that you "intercept" a letter addressed to yourself when you take it out of the mail box before opening it), and that, therefore, it was acting illegally. I'm not sure that I can honestly see the court buying that line of argument. (Let's be honest, too - beyond the narrow bounds of this case, I don't think that it would be remotely a good thing for any of us if it did. Because if it's illegal - as opposed to merely immoral - for MediaSentry to capture, record or examine traffic sent to it in this sort of way, then just about every flow over the net could potentially be similarly illegal!)

Personally, I suspect that its best hope of success lies in the arguments that MediaSentry acted as unlicensed private investigators. To my non-legally-trained eye, at least, some of those seem blatant to the point of being pretty much a slam-dunk.

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