Rich Fiscus
7 Jul 2008 12:18
As the RIAA's campaign of file sharing lawsuits against customers has gone on a number of interesting legal questions have been raised about how investigations are being conducted. MediaSentry is responsible for finding and identifying computers sharing copyrighted music on behalf of RIAA attorneys. One important question that has yet to be answered is whether they are required by law to be licensed as private investigators.
According to a letter from MediaSentry lawyers to Michigan regulators they believe the answer is no. The letter is in reply to another, in which Michigan officials suggested that MediaSentry's investigations might put them in violation of state law with respect to what activities require a private investigator's license. The original letter notes the following requirement.
A person, firm, partnership, company, limited liability company, or corporation shall not engage in the business of furnishing or supplying, for hire and reward, information as to the personal character of any person or firm, or as to the character or kind of business and occupation of any person, firm, partnership, company, limited liability company, or corporation and shall not own, conduct, or maintain a bureau or agency for the purposes described in this subsection except as to the financial rating of persons, firms, partnerships, companies, limited liability companies, or corporations without having first obtained a license from the department.
In the letter, MediaSentry's attorneys make a number of interesting claims as to why they aren't subject to the law. Their central argument is simply that they're not really investigating, but rather just using publically available information to identify individuals. They compare this to using a street address to identify the resident. The problem with this particular line of reasoning is that the IP addresses they identify aren't publically available. In fact they're found using methods they won't clearly describe, but which seem to involve first findng the files and then soliciting information from a computer which is later traced back to a specific IP address.
A more accurate analogy might be placing a newspaper ad asking for individuals to mail a response of some sort and then identifying respondents by the return address labels. In either case it's an address that's only available only after being solicited and not to the general public. In other words it sounds a lot like investigating.
Although dated from March 17 of this year, the letter has just recently been uncovered by noted attorney Ray Beckerman and published on his website along with the letter from the Michigan Dept. of Labor and Economic Growth. Mr. Beckerman has represented a number of defendants in the RIAA's litigation campaign and has raised many questions of his own about MediaSentry's practices. Unfortunately record label attorneys have so far been able to have this information treated as a confidential trade secret.
While arguing that MediaSentry is acting as unlicensed private investigators may seem to be simply a ploy to have evidence thrown out of court, there's really a much more basic matter at issue. Much like doctors and lawyers, private investigators have specific standards of professional conduct under the law, and specific government agencies are empowered to ensure they follow those standards.
Many of the same questions that have so far been hidden behind a smokescreen of trade secrets might be a matter of public record if they had to answer to a licensing body. The real question here isn't whether they're acting as investigators, but whether the technology they use has outpaced the laws that govern such activity.
One of the fundamental legal principles laid out in the 6th Amendment to the US Constitution is the right to confront your accuser. In any case brought on the basis of a MediaSentry investigation it only makes sense that would include scrutinizing the technical merits and even legality of the evidence gathering process.
That would appear to be a more important public interest than any claims of trade secrets, especially for an organization asking to be classified as technical experts.