Should Illegally Recorded Video Be Admissible In Xbox Modding Case?

from the rules-of-evidence dept

Wed, Nov 10th 2010 11:46pm — Mike Masnick

Pickle Monger points us to the latest bit of info to come out of the upcoming trial of a guy accused of violating the DMCA by modding Xboxes. Apparently, the defense is arguing that videos taken by an investigator for the ESA should not be used, because they violated California privacy laws (though, not necessarily wiretapping laws, since there was apparently no audio). The government is apparently saying it doesn't matter -- and even if the video was recorded illegally, it's still admissible.

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Filed Under: evidence, recording

32 Comments

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Anonymous Coward, 11 Nov 2010 @ 2:00am

"Should illegally recorded video be admissible in trial" is LITERALLY the same thing as "Should we ignore the fourth amendment".

The answer, of course, is NO.
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alternatives(), 11 Nov 2010 @ 2:44am

Governement functionaries
Over the years the various functionaries of government have acted in manners to break the law.

And here's another example.

The place of the Judge is to be bound by the law. Hopefully opposing council has the 'nads to stand up and have an objection on the record.

File a bar grievance WRT the government lawyer who's making the claim. And if the judge agrees with the government lawyer - judicial conduct complaint.
(anyone who has actual factual knowledge of the case is in a good position to file a complaint. Remember folks - complain early, complain often)
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TehZomB (profile), 11 Nov 2010 @ 3:47am

Uh, Fail
Wow, whoever the PA is in that case is just stupid.
As #1 said, what happened to the 4th amendment?
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Anonymous Coward, 11 Nov 2010 @ 4:47am

The argument, I am sure they will try to use, is that the fourth amendment only applies to the Government and government agencies. They will likely say that the ESA (which of course, probably did all the investigation and were beside any official legal enforcement every time something happened) are not appointed members of a government agency, and thus cannot be held to the same standards of evidence gathering. Granted I am no lawyer, but sadly, I think that argument might stand up...

WHICH IS COMPLETELY STUPID. These companies shouldn't even be involved in any criminal cases beyond filing the complaint, they are acting more like vigilantes then any thing. I say throw out all the evidence the ESA collected, and see if there is ANY case left. Pft, as if they would.
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Hawkmoon (profile), 11 Nov 2010 @ 5:26am

I think it's all a crock. If I was the judge I would toss it out. Once it's purchased, the guy should be able to do what he wants to it, regardless of what the almighty Microsoft says. Do you think Ford is going to care if you swap motors or slap a turbo on a car that you bought from them? Nope. They might as well say that you paid $300 for it, but you're just renting it. They might as well put sensors on it to alert the Xbox police if you crack the case.
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DH's Love Child (profile), 11 Nov 2010 @ 5:36am

Re:
In reading the article, they are not making a 4th Amendment argument per se. They are arguing that the trial could get bogged down when they cross examine the PI about the illegal tapes.

Separately, I wonder if the defendant could sue the ESA ( the company that hired the PI) and/or the PI for the illegal invasion of privacy. this could make for enjoyable times.
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Greevar (profile), 11 Nov 2010 @ 5:40am

4th Amendment...
We're going to miss you...
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Anonymous Coward, 11 Nov 2010 @ 5:40am

Man, the government in this case is dumb. They're getting paid to be on the ESA's side here, couldn't they come up with a better excuse for ignoring the illegality of evidence than, "Yeah, they're breaking the law, but we don't care"?
It's not supposed to be obvious when you throw a fight, y'know. That's the whole point.
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Nick Burns (profile), 11 Nov 2010 @ 5:42am

Would this be considered Fruit Of The Poisonous Tree?
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Anonymous Coward, 11 Nov 2010 @ 5:57am

IANAL, but if I recall...

Private Citizen A commits an illegal act, and in doing so obtains evidence of Private Citizen B committing another illegal act. If Citizen A turns that evidence over to the government, then the government is allowed to use it to prosecute Citizen B (unfortunately). This doesn't release Citizen A from their liability and they can still be prosecuted for that I would imagine (barring some sort of immunity deal). I seem to recall a couple cases where this was upheld when someone hacked into a computer and discovered child porn.

The fourth amendment only applies when the government is the one committing the illegal act during the collection of evidence.
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abc gum, 11 Nov 2010 @ 6:05am

Re:
xbox mod is not the same as child porn
duh ...
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Anonymous Coward, 11 Nov 2010 @ 6:09am

Re: Re:
Good point, I was mostly responding to the first, and third poster. The case is actually a fair bit more interesting then that.

As for the second question... I can see where the PI would be responsible. However, in keeping with my belief that liability should end with the person responsible, I think the ESA should be in the clear, UNLESS they came out and said to create such a tape.
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DH's Love Child (profile), 11 Nov 2010 @ 6:21am

Re: Re:
No.. it's a hellua a lot worse! Just ask the MPAA/RIAA...pick your favorite acronym. there is nothing in the world that is worse than someone disrupting their business model.
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DH's Love Child (profile), 11 Nov 2010 @ 6:32am

Re: Re: Re:
Good point on the 2nd question. The PI is obviously a both legally and civilly liable. The ESA... should seem that once they took possession of the illegal tapes, one could make an argument that they were complicit, and therefor liable.

Full disclosure: IANAL, nor am I darryl or average_joe. :)
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Anonymous Coward, 11 Nov 2010 @ 6:49am

Re: Re:
no kidding.

But the courts don't give a shit about that. The precedent has already been set. If I illegally obtain evidence against you, then voluntarily give it to the government, they will prosecute (if they can build a case). Doesn't matter if its xbox modding or cp or anything in between.
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Anonymous Coward, 11 Nov 2010 @ 6:51am

Re:
Whew, I'm glad you provided the answer. I wasn't sure what we were supposed to do with the 4th amendment, we've been ignoring the rest of the constitution for so long.
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Anonymous Coward, 11 Nov 2010 @ 6:56am

Re:
The problem with that line of reasoning is that the police could just hire a PI to do investigation when the law would otherwise prohibit them from gathering evidence.

On a side note, people should read up on the origins of the 4th amendment as it was basically design to handle EXACTLY these types of situations. It's based on three very specific cases where the government compelled both official and private citizens to search others property for evidence that they were breaking the law. In all three cases the defendants were basically dissidents and where breaking laws that they (and a large portion of the populace) thought were unfair or overly restrictive.
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Anonymous Coward, 11 Nov 2010 @ 6:57am

Re: Re:
I should note that when I say government I mean the British government, which ruled the colonies before the Declaration of Independence.
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Anonymous Coward, 11 Nov 2010 @ 7:01am

Re: Re:
Different situations. The "private citizen" in both if your examples is being directed by the government. Ergo, is a government actor. Ergo, is the government. Fourth amendment applies.
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Anonymous Coward, 11 Nov 2010 @ 7:04am

Re:
Also just to clarify...

I'm not a supporter of this position. I would prefer that this type of evidence be excluded.

I would also prefer my bank account have a million dollars in it tomorrow morning.

Wishes, however desired, are not reality, though. The courts - up to this point in time - have allowed this type of evidence.
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Anonymous Coward, 11 Nov 2010 @ 7:15am

That's the whole article? What, you had to run off and get coffee or something?
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Anonymous Coward, 11 Nov 2010 @ 7:16am

Sadly the evidence will probably be allowed. The government wasn't involved in any way with the gathering and as such I believe that the evidence would be allowed (IANAL).

A secondary question is whether the PI that did this illegal act will be charged.
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Anonymous Coward, 11 Nov 2010 @ 7:32am

Re:
Unless Citizen A is acting as an agent of the Government, then it would be illegal. If ESA is liable, could they argue that the ESA was acting as an agent of the government? I mean organizations and corporations are people too.
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Anonymous Coward, 11 Nov 2010 @ 7:51am

Re: Re:
You are correct regarding citizen A working for the government. That would indeed fall afoul the Fourth.

The only way I can see them pulling this off is if they somehow argue successfully that ESA is an agent of the government (that's a mighty big "if", though). Then they have a Fourth amendment claim.

Regardless of the finding in this case, I do believe that the defendant has a claim against ESA, and should pursue that. I would if I were in his shoes.
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out_of_the_blue, 11 Nov 2010 @ 7:58am

I'm inclined to never exclude video evidence.
Assuming it isn't faked, which is becoming quite possible to do for a low-res security camera type.

Anyway, however, defense *must* be able to grill the PI on all details of production and to point out to jury that it was in fact illegally recorded; that should be weighed, not exactly as exculpatory, but to evaluate the tactics prosecution is willing to use: if they knowingly created illegal evidence (there's *no* cut-out of responsibilty for an agent you hire, by the way, else you could hire contract killers) then *this* case should fall under the weight of balanced crimes (others perhaps not).
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TtfnJohn (profile), 11 Nov 2010 @ 8:29am

Re: Re: Re: Re:
You can't be darryl or average_joe for the simple reason that you make sense!

Not to mention the small fact that you're better informed!
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Anonymous Coward, 11 Nov 2010 @ 11:10am

Re:
That isn't enough to get you thinking? Do you need a few miliamps through the brain?
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Anonymous Coward, 11 Nov 2010 @ 12:02pm

How is the DMCA not impeding on the right of first sale? The xbox is nothing more than a simplified computer with enhanced graphical rendering. AFAIK, you have the right to mod your computers.
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SLK8ne, 11 Nov 2010 @ 12:51pm

Hawkmoon is right...
I agree. And I fail to see why Micro$oft gives a damn. After all they've got their money for the device. After they sell the thing, what legitimate reason do they have to object if someone mods it. Or takes it out and bashes it with a sledgehammer. Or whatever. And the analogy to cars is perfectly applicable. If someone wants to apply this "rational" (in spite of it not being rational) to other industries then all the custom car shops need to be shut down, and the custom parts business needs to be destroyed. It is amazing to me that an industry that creates cars that burst into flames (Pintos)when rear ended and go Kamikaze (Like certain asian car's) has more sense than Micro$oft.

On second thought, no it doesn't surprise me.

The world appears to be run by greedy idiots.
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Anonymous Coward, 11 Nov 2010 @ 8:48pm

Re:
The Fourth Amendment restricts evidence collected by government officials. It does not apply to private actors.

Perhaps the private actors may be subject to legal sanctions for engaging in illegal conduct, but that is generally of no moment when it comes to evidence relevant to a civil matter.
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Jason, 12 Nov 2010 @ 6:08am

Re: Re:
The Xbox Modding case is not a civil matter. The defendant faces criminal charges of circumvention under the DMCA. Whether the investigator was a government employee or a contracted agent for the government has no bearing on the illegally recorded video being inadmissable.
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Jason, 12 Nov 2010 @ 6:14am

Re: Re:
Woh! As soon as you said that I proved Fermat's last theorem. Thanks.
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