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Should Illegally Recorded Video Be Admissible In Xbox Modding Case?
from the rules-of-evidence dept
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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The answer, of course, is NO.
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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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Governement functionaries
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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Uh, Fail
As #1 said, what happened to the 4th amendment?
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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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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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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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Full disclosure: IANAL, nor am I darryl or average_joe. :)
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Not to mention the small fact that you're better informed!
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4th Amendment...
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It's not supposed to be obvious when you throw a fight, y'know. That's the whole point.
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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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duh ...
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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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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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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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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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A secondary question is whether the PI that did this illegal act will be charged.
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I'm inclined to never exclude video evidence.
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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Hawkmoon is right...
On second thought, no it doesn't surprise me.
The world appears to be run by greedy idiots.
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