The attack on MediaSentry for its activities in support of the record labels' litigation is a red herring for several reasons, chief among them:
1) MediaSentry simply accesses open peer-to-peer networks, where users have no reasonable expectation of privacy. It basically surfs the web looking for information, albeit with more sophisticated software than the average browser. See here for an explanation. MediaSentry does not act as a "private investigator" under any reasonable definition of that term.
2) Even if MediaSentry's activities are somehow covered by broadly-worded state private investigator regulations, that's not relevant to the quality of the evidence it presents in the labels' lawsuits. I am aware of no legal authority for the proposition that evidence is rendered inadmissible in a civil suit merely because it was obtained in violation of the law; indeed the law is to the contrary (i.e., criminal law's exclusionary rule generally does not apply in civil litigation). For some background, see this article.
Well, those two arguments have now been tested in court. And they carried the day. Here's what happened: the record labels used MediaSentry to identify the IP addresses of alleged infringers at the State University of New York at Albany. The labels filed a Doe lawsuit and served a subpoena on SUNYA, seeking disclosure of the names linked to the IP addresses. The Does moved to quash the subpoena, arguing (among other things) that MediaSentry had failed to register as a private investigator under New York law (see page 19 of the Does' brief). The labels opposed the motion to quash.
In an opinion issued today, the federal magistrate judge hearing the case denied the motion to quash, and along the way flatly rejected the Does' arguments regarding MediaSentry:
MediaSentry was retained by RIAA to assist in investigating those who may have infringed their members’ copyrighted recordings. MediaSentry, as we also know, entered into various P2P networks in order to follow a trail to certain or specific IP addresses to determine if the addressee had downloaded and distributed protected materials via the P2P network. We further know that MediaSentry visited at least sixteen SUNYA IP addresses, looked within shared files posted at these IP addresses, and uploaded [ed.: I believe the court meant "downloaded"] those files to determine if the musical recordings were copyrighted and owned by RIAA’s members. The result of the investigation is reflected in Exhibit A of the Complaint.The Doe Defendants complain that MediaSentry is not a New York State licensed investigator, a fact MediaSentry concedes. Because MediaSentry is unlicensed, the Doe Defendants suggest that MediaSentry may have violated New York law and committed a Class B Misdemeanor, GEN. BUS. L. § 70(4), and further intimate that any evidence MediaSentry may have gathered should not be admissible. Because of the questionable admissibility of the evidence, Defendants contend that the Subpoena should be quashed.The Court respectfully disagrees with the Doe Defendants that this information was illegally obtained on several accounts. Although we are uncertain of the impact General Business Law § 70 has on what MediaSentry actually did or may have done, by placing recordings into a shared file for the entire world to visit and capture, without the permission of the rightful owners, the Doe Defendants are hardly in a position to claim trespass, force, or fraud by MediaSentry. They are not in the position of even arguing that they had an expectation of privacy. If the allegation that the Doe Defendants placed copyrighted recording into index files for others to take at will and hereby trampled upon the exclusive owner’s copyright domain are true, they have forfeited any expectation of privacy they may have had. Even if the information was illegally obtained, this does not necessarily foretell its inadmissibility during a civil trial. Other than an errant citation to a United States Supreme Court case [which the court forcefully distinguishes in a footnote], the Doe Defendants do not proffer any other precedent to uphold this notion that illegally obtained evidence is somehow excluded from a civil trial, and this Court has been unable to unearth any case to confirm this novel concept. Moreover, General Business Law § 170 does not have a provision that espouses an exclusionary rule. Lastly, any discussion about admissibility at trial is evidently premature and not a matter for us to consider at this initial stage of the litigation. Thus, the Court does not accept the Doe Defendants’ invitation to determine that MediaSentry'’s investigation was illegal nor that an illegality of this nature is purposeful grounds for quashing a subpoena.
(footnotes omitted). I don't expect this decision to dissuade those battling the labels' lawsuits from continuing to press their anti-MediaSentry arguments. But at least now one federal court has seen them for the red herrings that they are.
UPDATE: The magistrate judge's opinion has been upheld by the District Court.