by Mike Masnick

Filed Under:
4th amendment, alex padilla, california, cds, dvds, warrants


RIAA Calls 4th Amendment Passe: Pushes For Warrantless Searches

from the entitlement? dept

Wow. It's been obvious to plenty of people for quite some time that the RIAA and the MPAA don't much care about things like free speech and due process rights afforded to people under the Constitution (see COICA and the PROTECT IP Act). But, I hadn't realized they'd gone so far as to blatantly disregard something like the 4th Amendment. Obviously, as we've been discussing lately, it seems like all three branches of the federal government have decided to crush the 4th Amendment, but they usually try to at least pretend that they're paying attention to the Constitution.

Not any more, apparently.

The RIAA has been pushing the state of California to pass a new law that would allow completely warrantless searches for law enforcement, allowing them to enter and search any CD or DVD manufacturing plant without either notice or a court order.

Yes, let's repeat that: the RIAA is pushing a law that would let law enforcement, without any oversight, without any probable cause, without any notice, enter and search any company premises that involves pressing CDs or DVDs, in order to assure that they're legal. Oh, and if said law enforcement discovers repeat violations, fines can be up to $250,000.

The RIAA claims that the 4th Amendment doesn't apply here because of all the recent attacks on the 4th Amendment by the courts:
The RIAA argued that courts had carved out 4th Amendment exceptions already. So far, it said, warrantless searches have been allowed at such businesses as automobile junkyards and repair shops, mines, gun and liquor stores, nursing homes, massage parlors, pawn shops and wholesale fish dealers.

The common trait, the trade group contended, was that the businesses were in "closely regulated" industries in which "the pervasiveness and regularity of the government's regulation reduces the owner's expectation of privacy in his business records."
It gets worse. The RIAA's Marcus Cohen honestly makes this sound like it's no big deal:
"We're literally talking about walking into a plant, walking up to the line and ensuring that, indeed, the discs are in compliance," he said. "I don't think the scope of the search is something a regulator needs to be worried about."
Oh really? And how about the RIAA member labels? How about, in exchange, they let some of us walk into their offices, take a look at their books and ensure that their royalty payments to artists are in compliance? I don't think the scope of such a review is anything to be worried about, right?

And, here's the crazy thing. Despite numerous legal experts saying that the bill is almost certainly unconstitutional, it sounds like it has a decent chance of passing. It's sponsored by California state Senator Alex Padilla and has already been approved by two separate committees, and will be heard on the Senate floor on Monday. If it passes there, it'll go to the Assembly. You can see the full text of the bill, SB 550 at that link, or embedded below.

It's really an astounding showing of the sense of entitlement of the RIAA that it feels that the 4th Amendment shouldn't apply. The RIAA and its member labels should be ashamed of themselves.

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  1. icon
    G Thompson (profile), 18 May 2011 @ 10:46pm


    The 4th has always intrigued me, though like any right it has to have reasonableness built into it to avoid confliction with any other right, either natural or statutory. Also not being a US citizen its interesting the current debates on the 4th and 1st (don't get me started on the 2nd though.. that one is just weird) from an outside looking in perspective.

    A few questions though from reading the above

    Is the DVD/CD Industries (Publication, Manufacturing, or other) regulated in any way by government.

    If regulated is it any different from the standard business regulations that any corporation has under law. In other words is it a substantial regulatory regime?

    If substantially different does it have factors that are there to mitigate against negligent (known or unknown) that could cause immense safety, health or financial damage to the public 'at large'.

    If all the above are true is the regulatory regime a State or Federally mandated regime? If State does the supremacy rule of Federal Govt effect the regulations

    Unless all of the above are positive and there is no Federal v. State problem then I cannot see this law being passed, and if passed I can see it being held as unlawful, unequitable, and most likely conflicts with already available warrant abilities.

    Also I can only see a need for this based on the idea that evidence could be destroyed if warrants are applied for first.

    Isn't there already a process by which if probable cause exists an Impoundment order (we call them Anton Piller orders) could be applied for and carried out to stop potential destruction of relevant evidence?

    Though Anton Piller Orders must here meet three rigorous tests that place a heavy burden on applicants, being:
    * A prima facia case that is extemely strong
    * Any damage must be both serious and reasonably expected to occur
    * A real possibility that any evidence, and that the evidence exists in Respondents possession, may be destroyed before any inter partes application can be initiated

    There is also the further burden on the applicant that they must put forth any likely counter arguments of the respondents as though the respondents were present to oppose said order. Not to mention a penalties that can be applied by courts on applicant if any breaches occur.. Sort of like an AntiSLAP situation.

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