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:
RICHARD A. ALTMAN
Attorney for Defendant
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LAVA RECORDS LLC et al.,
07 CV 321 (CLB)
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXCLUDE TESTIMONY
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.
PLAINTIFFS' PRIVATE INVESTIGATOR DOES NOT HAVE A LICENSE FROM THE
NEW YORK DEPARTMENT OF STATE. ITS OPERATING WITHOUT ONE IS A
CRIME, AND THE EVIDENCE OBTAINED FROM ITS INVESTIGATIONS, AND ANY
TESTIMONY BASED THEREON, SHOULD BE EXCLUDED.
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 used...in 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 civil...case." 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
Accordingly, any and all evidence and testimony obtained by Media Sentry should be
Dated: New York, New York
January 28, 2008
RICHARD A. ALTMAN
Attorney for Defendant