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Media Sentry accused of violating NYS law - and some affidavits - Updated 2Xs
Saturday, February 02 2008 @ 02:12 AM EST

Something interesting has happened regarding Media Sentry in the case of Lava Records v. Amurao. There is a motion to exclude Media Sentry testimony from that NY case on the grounds that Media Sentry is not licensed from New York State to operate as a private investigator and that therefore testimony based on Media Sentry's work should be excluded as illegally obtained. Here's the memorandum of law in support [PDF]. Doesn't it seem like the playing field is getting a bit more even? That it's not such a walk in the park for the RIAA as it used to be?

We've talked about Media Sentry's methods from a technical angle before, in a prior Pick Your Brains request on what to ask Media Sentry for in the way of documents, and now their responses to the subpoenas have begun to arrive, so you might want to take a look at the affidavits in UMG v. Lindor. I have local copies, so you don't have to fight with cookies, Part I and Part II [PDFs]. Some interesting technical analysis is already coming in to the Recording Industry v. The People site as comments. I see someone immediately noticed that Media Sentry claims anyone can do what they do. (I expect that will be their defense in the NY case.) Yet they claim their methods are proprietary. See if you notice anything further. And Slashdot has it up too.

Remember that they are fact witnesses, not expert witnesses. Here's an article that explains the difference. One significant piece:

Fact witnesses are involved in trials as a result of their having direct knowledge relevant to the issues in a case. For example, an inventor may be called upon in patent infringement litigation to testify regarding facts involved in the creation of the invention. Fact witnesses may testify either because they have volunteered to do so or because they have been required to testify through the serving of a subpoena.

An expert witness is not called to testify because of prior involvement in activities that precipitated the litigation. The expert testifies because he or she has knowledge, skill, experience, training, or education, and has expertise that may be meaningful to a party in attempting to prove its side of the case. An expert testifies voluntarily by agreement with one of the parties or the court.

A key distinction between fact witnesses and expert witnesses is that an expert witness may provide an opinion. Fact witnesses must limit their testimony to facts, except for opinions that are either rationally based on an actual perception of the witness or might otherwise be helpful to an understanding of their testimony.

So keep that distinction in mind as you read their affidavits.

Update: A Groklaw member spotted this interesting article in Baseline, which tells us that a number of other states have laws like New York's, and others are considering following their lead:

Under pending legislation in South Carolina, digital forensic evidence gathered for use in a court in that state must be collected by a person with a PI license or through a PI licensed agency.

If the law passes, the highly specialized task of probing deep into computer hard drives, network and server logs for telltale signs of hacking and data theft would land in the hands of the same people who advertise in the Yellow Pages for surveillance on cheating spouses, workers' compensation fraud and missing persons. Otherwise, digital evidence collected by unlicensed practitioners could be excluded from criminal and civil court cases. Worse yet, those caught practicing without a license could face criminal prosecution....

South Carolina isn't alone in considering regulating digital forensics and restricting the practice to licensed PIs. Georgia, New York, Nevada, North Carolina, Texas, Virginia and Washington are some of the states going after digital forensic experts operating in their states without a PI license.

That's not the only fascinating part. It turns out that there is precedent to what the lawyers in the New York case are doing:

In the Sony case, a defendant of a copyright infringement lawsuit in Texas filed a motion last July to disqualify evidence because the investigative firm, MediaSentry (since acquired by SafeNet), did not have a private investigation license required under state law.

Sony dropped the case last month. Some speculate that this was the result of the bad publicity accumulating regarding the hefty six-figure fine that would have been levied against the elderly defendant. Had it gone to court, Abrams and others believe MediaSentry would have been subjected to the Texas licensing law because the digital evidence was gathered by a digital forensic consulting firm acting on behalf of a client.

So you see, those of you who thought this was pointless as a tactic or a side detail missed the cluetrain on this one. It is potentially a knockout blow to MediaSentry as far as current cases in any state with such a law on the books. As the article points out, the purpose of such laws requiring professionals is to ensure the integrity of evidence by ensuring that skilled people are collecting it. And as you've noticed, there is a need for that.

Update 2: Here are links to exhibits:

Jacobson Exhibit 6

Jacobson Exhibit 10

Jacobson Exhibit 11

Jacobson Exhibit 12

Jacobson Exhibit 13

Jacobson Exhibit 14

Here's the New York General Business Law Media Sentry is accused of violating, by the way -- Sections 70, 71 and 83 are the pertinent sections -- and here's the memorandum of law in the NYS case:


Attorney for Defendant
[address, phone]







07 CV 321 (CLB)



Defendant's attorney, Richard A. Altman, submits this memorandum of law in support of this motion to exclude testimony and evidence from plaintiffs' private investigator.


New York General Business Law 70 subd. 2 reads in pertinent part as follows:

No person, firm, company, partnership, limited liability company or corporation shall engage in the business of private investigator...without having first obtained from the department of state a license so to do, as hereinafter provided, for each bureau, agency, sub-agency, office and branch office to be owned, conducted, managed or maintained by such person, firm, company, partnership, limited liability company or corporation for the conduct of such business.

G.B.L. 71 subd. 1 reads in pertinent part as follows:


1. "Private investigator" shall mean and include the business of private investigator and shall also mean and include, separately or collectively, the making for hire, reward or for any consideration whatsoever, of any investigation, or investigations for the purpose of obtaining information with reference to any of the following matters, notwithstanding the fact that other functions and services may also be performed for fee, hire or reward...the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character of any person, group of persons, association, organization, society, other groups of persons, firm or corporation; the credibility of witnesses or other persons...or the securing of evidence to be the trial of civil or criminal cases. (emphasis added).

A private investigator who operates without a license is guilty of a Class B misdemeanor. G.B.L. 70 subd. 4. Cf. Madden v. Creative Services, 84 N.Y.2d 738, 747, 622 N.Y.S.2d 478, 482-83 (1995)("Those who attempt an unlawful intrusion by fraud, trespass or force, and those in complicity with them, may face criminal penalties; private investigators are additionally subject to license revocation or, if unlicensed, criminal sanctions").

There is an exemption from the licensing requirement for attorneys and their full-time employees, but the exemption does not extend to private investigators who work for attorneys as contractors. Section 83 reads in pertinent part:

Nothing in this article...contained [shall] be construed to affect in any way attorneys or counselors at law in the regular practice of their profession, but such exemption shall not enure to the benefit of any employee or representative of such attorney or counselor at law who is not employed solely, exclusively and regularly by such attorney or counselor at law.

Accordingly, the activities of plaintiffs' unlicensed private investigator, Media Sentry, violate New York State law, and therefore no testimony or evidence gathered in the course of their investigation should be admissible. The company clearly falls within the definition, in that its primary function is "the securing of evidence to be used in the trial of a[]." Illegally obtained evidence is not admissible in a civil case, cf. One 1958 Plymouth Sedan v. Pa., 380 U.S.


693 (1965)(exclusionary rule applies in civil forfeiture proceedings), and it should not be admissible here.

Accordingly, any and all evidence and testimony obtained by Media Sentry should be excluded.

Dated: New York, New York
January 28, 2008

Attorney for Defendant



Media Sentry accused of violating NYS law - and some affidavits - Updated 2Xs | 92 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Media Sentry accused of violating NYS law - and some affidavits
Authored by: rsteinmetz70112 on Saturday, February 02 2008 @ 02:19 AM EST
Seems this is a technical attack and Media Sentry can cure it for the future by
becoming licensed.

It doesn't go to the heart of the matter.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Corrections Here, please....
Authored by: perpetualLurker on Saturday, February 02 2008 @ 02:19 AM EST

Please place the correction in the title....

Thank you! ....pL......

"Work like you don't need the money. Love like you've never been hurt. Dance
like nobody's watching." -- Leroy "Satchel" Paige

[ Reply to This | # ]

Care to discuss a News Pick?
Authored by: perpetualLurker on Saturday, February 02 2008 @ 02:20 AM EST

Please mention the title of the NewsPick, and thank you!


"Work like you don't need the money. Love like you've never been hurt. Dance
like nobody's watching." -- Leroy "Satchel" Paige

[ Reply to This | # ]

Off-Topic here, please...
Authored by: perpetualLurker on Saturday, February 02 2008 @ 02:22 AM EST

Anything not covered yet? Thank you!


"Work like you don't need the money. Love like you've never been hurt. Dance
like nobody's watching." -- Leroy "Satchel" Paige

[ Reply to This | # ]

Media Sentry accused of violating NYS law - and some affidavits
Authored by: jacks4u on Saturday, February 02 2008 @ 04:05 AM EST
Excellent work by the defense team!! I do hope this motion is granted.

I hope that Media Sentry is precluded from New York investigations for a LONG
time. Criminal sanctions may well be the end for them. But I fear that RIAA will
just find another stooge to fight it's fight, or perhaps Media Sentry will lay
low, then re-emerge as a different company, in an attempt to shake a bad

In short, I feel the battle may have been won, but the war will rage on for

What's needed is a way to cut off RIAA's hands - so that they can never pen
another complaint of this nature - ever.

I'm not a Lawyer, this is my opinion only. I may be wrong, but I don't think so!

[ Reply to This | # ]

Do any other states have similar rules?
Authored by: cybervegan on Saturday, February 02 2008 @ 04:43 AM EST
If so, and MediaSentry are in fact unlicensed everywhere, it would put a damper
on their current cases. Does this also mean that with past cases where their
evidence was used, and this rule applies, that the cases could be reviewed and
overturned? Or is it a fait-a-compli?


Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

PI License not a bad idea
Authored by: Anonymous on Saturday, February 02 2008 @ 09:07 AM EST
The "yellow pages" comment makes a PI license sound slimey. The real
point is that it will put potential investigators on notice of, and perhaps
tested about, the requirements for collecting evidence so it will stand up in a
Court. They understand it for other matters. This raises the bar to the same
level for "computer crime". It was interesting watching the
MediaSentry "expert" backpedal when he was challenged by folks who
knew what they were talking about. It will be more interesting to see what they
try to call evidence in the inevitable next case.

[ Reply to This | # ]

Media Sentry will get the license?
Authored by: Anonymous on Saturday, February 02 2008 @ 11:31 AM EST
So MediaSentry will just get those Investigator licenses in all the states?

[ Reply to This | # ]

PI's can lose their licenses
Authored by: Anonymous on Saturday, February 02 2008 @ 12:20 PM EST
I was the object of a PI investigation in work related litigation. After his
report was listed as evidence he was called in for a deposition in which he
committed perjury -- something expected in advance.

In later negotiations his testimony was revoked in lieu of reporting to the
state licensing agency where he would have subsequently faced unemployment.

Yes, the law can work (sometimes).

[ Reply to This | # ]

Media Sentry accused of violating NYS law - and some affidavits - Updated 2Xs
Authored by: Anonymous on Sunday, February 03 2008 @ 01:43 AM EST
Okay, they say that they are simply "fact" witnesses, but how they
gather those "facts" is proprietary? Then essentially, they fail to
substantiate their "fact", which makes it "opinion", right?

After all, isn't what MS is saying is " was downloading music. We
can't tell you how we know that. We are experts". That qualifies as
"evidence" by a "fact" witness exactly how? Since they are
presenting facts as determined by some unverified process (investigation), they
are actually operating as expert, not fact, witnesses - and investigators,
appearently unlicensed. We're not talking about a casual fact witness, like a
bystander at an auto accident, but a company whose business it is to generate
(or should I say, investigate) "facts". A conflict of interest, since
they are paid for finding the amount of "facts" they find
(investigate). So they are more than just the witness to facts, but actively
involved in the production and validation (investigation) of those facts.

The plaintiff gets to do a forensic exam on the defendents computer, but the
defendent is not allowed to verify the "fact witness" or forensic exam
of their computer? It is supposed to be presumed to be infallible, despite the
unknown techniques used by these casual witnesses, since they are experts in the
facts they not only witness, but created?

I really just fail to see how they are not "expert" witnesses, not
fact witnesses. I also fail to see how they are not "investigating"
and not just a witness to a fact. After all, they are actively looking for
these facts - which is the act of investigating.

[ Reply to This | # ]

Media Sentry accused of violating NYS law - and some affidavits - Updated 2Xs
Authored by: Anonymous on Sunday, February 03 2008 @ 10:34 PM EST
New Lab procedures are often challenged in court until they become accepted.

Why not try the same approach here?

[ Reply to This | # ]

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