ABA Says RIAA File Sharing Watchers Shouldn't Need Private Investigators' Licenses

from the and-they're-probably-right dept

Thu, Aug 28th 2008 11:59am — Mike Masnick

We've seen a few cases against the RIAA in which either state officials or defendants will point out that the RIAA's hired hands in tracking down file sharers -- companies like MediaSentry -- are violating state laws requiring private investigators' licenses for certain activities. Now, the American Bar Association (ABA) has put out a report suggesting that this is silly, and that states and judges shouldn't require such companies to have a PI's license. While I'm a bit surprised at myself, I actually agree with the ABA. As distasteful as the RIAA's legal strategy is, and as flimsy as the evidence is that these company's collect, going after them for not having a PI's license is focusing on a loophole, not the actual merits. And, honestly, most of these requirements for PI licenses are really just a way to create artificial scarcity in the PI business, not actually a way to ensure safety or quality. The RIAA's efforts to sue music fans have plenty of problems, but focusing on whether or not companies like MediaSentry need a PI license seems like a tangent that takes away from the bigger picture.

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Filed Under: copyright, investigations, lawsuits, monitoring, private investigators license

23 Comments

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Anonymous Coward, 28 Aug 2008 @ 12:22pm

I would have to disagree with this, at least with how most PI laws are written today (although as to if these laws are good, that is a different question.) They are being hired by a client (the RIAA) in order to gather evidence against individuals to be used in court using propitiatory software. I do not see reasons that they would be exempt from such licenses, as their work is very similar, if not exactly the same, as a typical PI
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Anonymous Coward, 28 Aug 2008 @ 12:30pm

There should be some requirements for those hired in the computer field to be paid for information gained on a third party, to prevent cases like where the one person was paid by the MPAA to get possibly illegal evidence on torrentspy.
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Brooks, 28 Aug 2008 @ 12:43pm

Letter of the law and all that?
Michael, are you saying that you don't think the various state laws regarding PI licenses apply to MediaSentry, or that because you disagree with the basis of the laws, they should not be adhered to by the courts?

I'm not at all sure I'm comfortable with suggesting a system whereby courts selectively disregard laws based on some kind of nebulous idea that those laws really shouldn't exist or don't serve the purpose they purport to.
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Shaun Wilson, 28 Aug 2008 @ 12:47pm

I sort of agree...
I definately agree with you that the main point of having a PI lience or similar is create artificial scarcity but there is also the point of quality controll - if you know that someone doesn't ever produce valid evidence you can throw out any evidence comming from then without checking if it is valid or not - because it won't be.

What I would say is yes require the PI's licence but make it trivial to get - say a police check for fraud and an administration fee - but harder to keep - if you break the law or knowingly present invalid evidence you loose the licence and have to go through an appeals process showing why you should get it back.

This increases efficiency on 2 points.
1. The market for PI's - increasing competition, decreasing barriers to entry etc.
2. The courts don't have to deal with people who deal in invalid evidence, decreasing the load on the courts.

You could instead just have kinda an anti-PI licence - just bar people/companies from working as PI's rather than revoking a licence, which would further reduce the barriers to entry but I would think you'd loose out on other points. "Here is my PI licence, check that it's valid" is a lot easier than "Here if my proof of ID and my company name, chech were not barred from PI work"
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Private Eye, 28 Aug 2008 @ 1:02pm

Wrong!
They absoltely SHOULD have PI licenses. Why? Because they should be required to obey the law when retreiving this information and should be forced to document their procedures to make sure they adhere to all laws. Otherwise, the RIAA are getting data from (as far as we know) a bunch of code-kiddies who hack their way through various systems to get the data.

If what they give to the RIAA is the basis for the RIAA to launch a legal campaign against me, I want to SEE the proof and it had better legally obtained.

Otherwise, it's like the prosecution hiring some thug off the street to break into people's places grab evidence and then submit it to the court.
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Jon, 28 Aug 2008 @ 1:23pm

Re: Wrong!
While I do agree with Mike that this does in effect create artificial scarcity, I agree with you to a much greater degree. The PI license ensure that 1. the PI understands the laws and 2. commits the upholding those laws. Private Eye says it all. In some cases, it does make sense to force licensing.

I would guess that in a lot of the cases where a profession requires you to be licensed, it did not start out as a means of reducing competition. Take a license to sell insurance. In the beginning, anyone could and then as insurance scams became widespread, the government took steps to protect the people. Over time, the lobbist expanded the requirements to force reduced competition.
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Jake, 28 Aug 2008 @ 1:27pm

The question of PI licenses is only one aspect of the RIAA's conduct that should be under scrutiny, true, but I think the least we can demand in the meantime is that anyone charged or sued under the existing legislation be guaranteed due process of law. And evidence obtained by illegal means is and should be inadmissible.
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Milodon, 28 Aug 2008 @ 1:36pm

If I have to....
Texas requires PC repair tech's to have a PI license....sooo...
http://www.pcmag.com/article2/0,1895,2324220,00.asp
I'm sick of one set of laws that apply to companies and second set that apply to the rest of us. What more evidence do you need that the people are no longer in control of the government or it's laws.....
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Josh, 28 Aug 2008 @ 2:18pm

Mike, I gotta disagree very strongly.
If someone is going to be sued for insanely excessive "damages" then they absolutely have a right to make sure that the evidence gathered against them is collected in accordance to the law, follows established protocols regarding that type of evidence, and accountability to the person or company collecting it. Transparency and accountability.
If MediaSentry doesn't need a PI license, why would your local police department's crime scene investigators need some type of license or accreditation to collect evidence for a murder trial?
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Overcast, 28 Aug 2008 @ 2:36pm

If it was up to the RIAA; they wouldn't need a Warrant, Police, Jury or Executioner, they would do it all themselves.
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Anonymous Coward, 28 Aug 2008 @ 2:58pm

What possible reason is there for them to be exempt, when looking at current laws.
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Anonymous Coward, 28 Aug 2008 @ 3:01pm

Re:
public knowledge might be a possible defense, they are just see that you are sending and/or receiving using a P2P protocol and based off of that, they sue you. not hard to find out if someone is using P2P networks.
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Atagahi, 28 Aug 2008 @ 3:26pm

RIAA PI License Requirements
Requiring licensure also brings the RIAA's goons under state jurisdiction should they break civil or criminal laws. In effect, it creates a more level playing field for the citizen and the company where state law violations are being alleged.

It is hard for an average citizen to sue an out-of-state entity in state court for violation of state laws if the entity has no office or no minimal presence in the state due to civil and criminal jurisdictional requirements in each state.

By requiring PI licensing, MediaSentry then has the same liability as any other company operating inside the state - it has to respond to lawsuits inside the state as opposed to plaintiffs having to sue them where MediaSentry is incorporated. It is a much cheaper and easier alternative than suing in another state for the individual plaintiff.

Given the RIAA's excesses, it only seems fair to level the playing field a little to make it easier for an average individual to sue MediaSentry within the state where the individual lives.
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SirPhobos, 28 Aug 2008 @ 3:37pm

In the ABA's line of reasoning, vigilantism is perfectly acceptable. Further, if such is sustained as a valid argument, the courts will be directly reinforcing the notion that breaking the law to enforce the law is also perfectly acceptable, and that to question such activity would be simply to get hung up on "tangents".

The fact should remain that evidence gathering and expert witness testimony needs to come from...experts, with some form of credentials to establish some standard of expertise and some standard for the practice of lawful evidence gathering.

If we reinforce the notion that the ends justifies the means, and that it is acceptable to break the law to uphold the law, we will find ourselves on very dangerous ground, upon which a solid and undeniable precedent for the acceptance of vigilantism at even a general level is set.
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Lawrence D'Oliveiro, 28 Aug 2008 @ 5:25pm

PI vs Expert Witness
There seems to be a subtle legal point here that you might be missing: basically, an outfit like MediaSentry can give evidence either as a private investigator or as an expert witness.

However, as an expert witness, your investigative techniques become subject to investigation and discovery by defendants. Whereas as a private investigator, you are protected from that.

So, it appears that being licensed as a private investigator gives you certain privileges that the RIAA do find useful, and would be loath to give up.
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Clueby4, 28 Aug 2008 @ 6:37pm

Mediasentry's evidence should be considered fiction.
I don't by the "artificial scarcity" flappings. What about the lack of credibility an investigator provides without the appropriate licenses, bonding, and/or certifications.

I'm sorry Mediasentry is providing "evidence" in a court of law. The evidence that the provide is flimsy on it's own without the issue of pondering whether or not it's been manufactured.
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Anonymous Coward, 28 Aug 2008 @ 8:17pm

Why is the ABA sticking their nose into this ?
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Anonymous Coward, 28 Aug 2008 @ 8:40pm

You can't revoke a licence that isn't required.
Usually the point of a licence is that it can be revoked. Without a licence requirement it wouldn't be possible to stop unethical, but otherwise legal, behaviour. Depending on state laws and how the licence requirements are spelled out of course.
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Mike (profile), 28 Aug 2008 @ 11:29pm

Re: Letter of the law and all that?
Michael, are you saying that you don't think the various state laws regarding PI licenses apply to MediaSentry, or that because you disagree with the basis of the laws, they should not be adhered to by the courts?

1. I disagree with the basis of the law.
2. I think it's a stretch to claim that it applies in this situation.

So, both.
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Mike (profile), 28 Aug 2008 @ 11:42pm

Re: Wrong!
They absoltely SHOULD have PI licenses. Why? Because they should be required to obey the law when retreiving this information and should be forced to document their procedures to make sure they adhere to all laws. Otherwise, the RIAA are getting data from (as far as we know) a bunch of code-kiddies who hack their way through various systems to get the data.

If that's the case, let that fact come out in court and be used to discredit the RIAA collection method.

That's got nothing to do with having a PI license.
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Mike (profile), 29 Aug 2008 @ 12:07am

Re: Mediasentry's evidence should be considered fiction.
I don't by the "artificial scarcity" flappings. What about the lack of credibility an investigator provides without the appropriate licenses, bonding, and/or certifications.

So let that come out in court to show why the evidence shouldn't be trusted. But don't make it illegal for them to do what they do.

You're arguing that the evidence is weak. On that I agree.

But just because the evidence is weak doesn't mean that they should need a PI license.
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andrew farris, 29 Aug 2008 @ 1:00am

Re: PI vs Expert Witness
An expert witness does not gather and provide evidence... they offer interpretation of evidence before the court. An factual witness would relate facts and observations of their own that pertain to the case. Evidence provided by an investigator should be properly documented and obtained legally... so it looks like what the RIAA is really trying to do is sit on both sides of that fence (hey we have experts testifying here but they will talk factually about evidence they gathered themselves but trust us they did it legally and no we will not offer to show proof of that).
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HennepinCountyLawyer, 29 Aug 2008 @ 2:25pm

Re:
"Why is the ABA sticking their nose into this ?"

They're not. The ABA report wasn't about the RIAA or MediaSentry.

Based on a very quick reading of the report I'm not even sure the RIAA investigation falls into the category of investigation the ABA report is talking about. The report appears to be talking about directly examining computers in the investigator's possession for things like signs of deletions, and checking networks for security, not using the internet to spy on the content of other people's computers.

The ABA report is specifically talking about computer experts who will potentially testify as expert witnesses. MediaSentry denies that it's an expert witness, because it wants to avoid the disclosures they'd have to make as an expert witness. So the argument in the ABA report, which specifically refers to the Rules of Evidence provision covering expert witnesses, doesn't even apply to MediaSentry.
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