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Court Asked To Strike All MediaSentry Evidence 204

Posted by kdawson
from the born-tainted dept.
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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Court Asked To Strike All MediaSentry Evidence

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  • by InMSWeAntitrust (994158) on Monday June 01, 2009 @11:39PM (#28177421)
    It's lovely to see that illegally obtained evidence is still illegitimate in the courts. Kinda gives you a warm feeling inside.
    • by eldavojohn (898314) * <.moc.liamg. .ta. .nhojovadle.> on Monday June 01, 2009 @11:45PM (#28177469) Journal

      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 (Score:5, Interesting)

        by jarrettwold2002 (601633) on Tuesday June 02, 2009 @12:32AM (#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!

        • by rtb61 (674572)

          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.

        • Yes, it might be easy, but wouldn't every person involved in gathering the evidence require a PI Licence? So repeat that by however many employees they have.

          • Usually the way it works, is you license whoever as an agency then that person can 'train' people in, who later apply for the license.

            • okay, so they'd save training costs, but they'd still lose time in actually needing to train whoever along the chain needs to be trained, plus costs of filing for a licence for each individual, since you can't get a licence for the overarching company, correct? Each person would still need a personal licence? I'm honestly not sure, since I've never really looked in to becoming a PI, since this isn't a 1920s pulp novel. Seems like it'd be a bit of a drain, then, but not a killer by any means.

              • the license fee for a person in North Dakota is less than 50 dollars.

                • *snerk* Yeah. Hardly a killing blow. So why didn't they do this in the FIRST place? Buncha lazy arses. Lazy and CHEAP.

                  • The problem I think here is that they didn't think about it. It's a legal setup that isn't necessarily brought up in dinner table conversation. A lot of people do private investigative work that aren't licensed, and don't even blink about it.

                    However, these guys didn't do due diligence and got screwed by it. Ineffective legal counsel.

            • Alternately, one person in the department has the license and the others are working under his supervision and in accordance with approved practices. Which way it works seems to be dependent on the state.

      • Re: (Score:2, Funny)

        by Schemat1c (464768)

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

        You're funny.

      • Re: (Score:3, Interesting)

        by clarkkent09 (1104833) *
        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 I
        • While investigator licensing is likely a bit of a revenue generator in some states, there's actually a decent justification for it, the same as for a contractor's license, etc.

          The justification is that licensed is de facto regulated. Even if the original license is normally a formality (say a few hours' training and a fee, if even the training at all), as long as a record is kept of complaints registered per license and with a bit of cooperation between states even better, given a license, it's possible to

    • by linzeal (197905) on Monday June 01, 2009 @11:46PM (#28177475) Homepage Journal
      judge has not ruled on this yet.
    • Re: (Score:2, Informative)

      by arbiter1 (1204146)

      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.

      • 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.
    • by Trepidity (597) <delirium-slashdotNO@SPAMhackish.org> on Tuesday June 02, 2009 @12:48AM (#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).

      • by Trepidity (597) <delirium-slashdotNO@SPAMhackish.org> on Tuesday June 02, 2009 @01:18AM (#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: (Score:2, Interesting)

          by 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 cat

          • 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.

      • by Svartalf (2997)

        In reality, if the laws in question were violated by MediaSentry (they were...), then the law DOES require exclusion on the spot for the evidence in question.

        In her state, the stuff's explicitly inadmissable- you can't enter evidence of this nature gathered by anyone other than a licensed PI into a case.
        In the case of the Federal statutes, the same applies. It's not info that they can actually allow in court.

        • by Trepidity (597)

          Interesting, if that's the case. I wasn't aware that any Private Investigator statutes actually included an explicit provision that evidence obtained in violation of the statute must be excluded from all proceedings, as opposed to merely criminal or civil liability for the violator themselves.

          But if the statutes did contain an explicit provision of that sort, wouldn't the brief here argue that? The brief seems to acknowledge that exclusion is discretionary rather than required as a matter of law.

    • Re: (Score:3, Insightful)

      by VShael (62735)

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

  • Evidence? (Score:5, Interesting)

    by Elgonn (921934) on Monday June 01, 2009 @11:41PM (#28177433)
    I wasn't aware that anything MediaSentry has brought into court was anywhere near something we'd call evidence. Vague screenshots, unverifyable logs?
    • 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.

      • 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...

        • 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.

    • by bwcbwc (601780)

      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 wasn't aware that anything MediaSentry has brought into court was anywhere near something we'd call evidence. Vague screenshots, unverifyable logs?

      It was enough to get Mrs. Thomas convicted the first time round. Or lets say to convince the jury that she did what she was accused of doing; the other part was convincing the jury that what she was accused of doing was actually illegal; the judge figured out later that he instructed the jury incorrectly on that part. So their "evidence" is still accepted as evidence.

      • Re: (Score:3, Informative)

        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! (Score:3, Interesting)

    by plover (150551) * on Monday June 01, 2009 @11:50PM (#28177503) Homepage Journal
    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! (Score:4, Interesting)

      by Technician (215283) on Tuesday June 02, 2009 @12:19AM (#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: (Score:2, Insightful)

        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
        • 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 p

      • Re: (Score:3, Interesting)

        by L4t3r4lu5 (1216702)
        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]).
      • by Svartalf (2997)

        I think some enterprising person will start one in light of this. Any info used for these "settlements" was illegally obtained in pretty much every State in the Union. Moreover, it's very defective at best if it WAS
        obtained legally- it doesn't do anything of what the RIAA claims in court that it does. They knew or should have known that the stuff was explicitly inadmissable and that they had no case at that point. They pursued a campaign of threats of the sort of litigation that we've seen, knowing that

    • by pembo13 (770295)

      Won't they just change their name?

  • by initialE (758110) on Tuesday June 02, 2009 @12:11AM (#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.

    • by amicusNYCL (1538833) on Tuesday June 02, 2009 @04:15AM (#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: (Score:3, Funny)

      by oodaloop (1229816)
      Harbinger of Death? Sounds delicious! I'll have a venti half-caf upside-down soy extra-hot Harbinger of Death please.
  • TCPdump? (Score:3, Interesting)

    by whoever57 (658626) on Tuesday June 02, 2009 @12:12AM (#28177615) Journal
    So, according to this brief, it is illegal to use tcpdump on packets leaving my own network?
    • Re:TCPdump? (Score:5, Informative)

      by The MAZZTer (911996) <megazzt@g m a il.com> on Tuesday June 02, 2009 @12:16AM (#28177641) Homepage
      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? (Score:5, Informative)

        by dododuh (806858) on Tuesday June 02, 2009 @02:14AM (#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.
        • by shentino (1139071)

          Explain to me how an eavesdropper is proper party to a communication?

          • They're not eavesdropping. They're running a download/torrent client themselves, not intercepting traffic to someone else's.
      • by Svartalf (2997)

        There's a very narrow range of things for which it's legal to do so. Unfortunately for MediaSentry, that range does not apply because they're NOT the RIAA or one of the Member Labels.

    • Re:TCPdump? (Score:4, Insightful)

      by mattmacf (901678) <mattmacf&optonline,net> on Tuesday June 02, 2009 @01:15AM (#28177963) Homepage
      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, (Score:3, Insightful)

    by Nekomusume (956306) on Tuesday June 02, 2009 @12:15AM (#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.

  • by Anonymous Coward on Tuesday June 02, 2009 @12:22AM (#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.
    • 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.

      • by Tuoqui (1091447)

        Apparently not, you got modded +5 Funny this time :)

  • 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

    • 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.

      Sort of. They could go to a grand jury, and present a very weak case on purpose, in order to get a no-bill.

      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?

      I can't see a Russian company being allowed to testify in US procedures without needing to still follow US laws, so a move wouldn't help. It'd be more likely they'd "close the company," then resurface as someone else.

      Would any money MediaSentry has gathered from its clients be confiscated as proceeds of crime?

      If they were actually charged and convicted, it could be. There's a number of punishments available to a corporation.

      Would any previous law suits agreed to be overturned by such evidence?

      If a case was finished, it would be up to the defendant to push for

  • 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.
  • by Drakkenmensch (1255800) on Tuesday June 02, 2009 @08:14AM (#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.
  • The 5th Amendment (Score:3, Interesting)

    by NewYorkCountryLawyer (912032) * <ray@@@beckermanlegal...com> on Tuesday June 02, 2009 @09:45AM (#28181271) Homepage Journal
    What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.
    • Re: (Score:3, Funny)

      by Jesus_666 (702802)
      It's good they don't thake the Fifth. I don't trust them to give it back.
    • What I wonder about is how, under these circumstances, the MediaSentry guy can take the stand and not take the 5th Amendment.

      How is that going to affect anything though? Isn't it already well established what MediaSentry did? For what purpose would they be asked to take the stand at all? It seems like they've already taken care (according to the brief) to document and explain the methods they use (as well as they can anyway), so why would it be necessary to call them to the stand?

      If we know what they did, and we know they did it without a required license (the irony of which is not lost on me), what else do we need to know?

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