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."

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

[linzeal]

judge has not ruled on this yet.

Re:mod points

[Anonymous Coward]

nobody's laughing

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: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: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 [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?

[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?

[Anonymous Coward]

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

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

Re: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: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: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 [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:Illegally obtained evidence

[Anonymous Coward]

The reasons are twofold.

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

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

Comment removed

[account_deleted]

Comment removed based on user account deletion

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.