- MediaSentry's activities from outside Massachusetts in collecting evidence regarding Tenenbaum's Kazaa use in Rhode Island do not implicate Massachusetts private investigator or wiretapping laws.
- Even assuming that evidence was collected in violation of law, the remedy is not suppression in this case, but instead is a suit against those who allegedly engaged in the illegal acts.
- MediaSentry did not engage in illegal wiretapping, since Tenenbaum voluntarily exposed the contents of his shared folder to other Kazaa users. The court described the wiretapping argument as "bizarre."
Here's Judge Gertner's order:
Judge Nancy Gertner: Electronic ORDER entered denying  Motion to Suppress. "The Defendant raises a number of arguments why MediaSentry's monitoring was illegal under state and federal wiretap laws, as well as state licensing requirements for private investigators. See Mass. Gen. L. ch. 272, s. 99(A); Mass. Gen. L. ch. 147, s. 22. Given that MediaSentry did not conduct its monitoring from Massachusetts, does not maintain a presence in the state, and the computer on which MediaSentry detected Tenenbaum's file-sharing was located in Rhode Island at the time, Massachusetts' wiretapping and licensing provisions would not seem to reach the conduct at issue at all. See Connelly Aff. (document # 866-5); Cox Comm. Subpoena Resp. (document # 866-9). Regardless of which state's licensing requirements are invoked, the Court previously considered a similar motion to strike in London-Sire Records, Inc. v. Arista Records LLC, Case No. 04-12434, holding that "[n]either the rules of evidence nor the Fourth Amendment bar the use of evidence arguably unlawfully obtained by private parties in their private suits." Jan. 9, 2009 Mem. and Order at 3-4 (document # 230). Tenenbaum's remedy for a search he believes illegal under state laws is not exclusion of this evidence, but a separate action against MediaSentry or its employer under the state statutes he identifies. That leaves only the federal wiretapping provisions. See Electronic Communications Wiretap Act, 18 U.S.C. 2510 et seq. Here, Tenenbaum proposes a difficult analogy when he compares MediaSentry's activities to illegal eavesdropping. The Defendant made his computer's "shared folder" visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents -- an invitation that MediaSentry accepted just as any other KazaA user could have. The electronic communications that ensued were conducted with the consent of both parties. As a result, it is bizarre indeed to describe MediaSentry's decision to examine and record its counterpart's IP address as eavesdropping, as though federal law prohibited MediaSentry from determining where the data sent to it from Tenenbaum's computer originated. It is as if one received a letter in the mail, but was not allowed to look at the return address.This principle makes no more sense on the internet than in the non-digital world, and it is not encompassed by the Act. The type of IP information transmitted by KazaA and recorded by MediaSentry is accessible to almost anyone with a computer. Even if viewed as an "interception" -- a characterization that the Court accepts here only as a hypothetical -- MediaSentry's monitoring activities fall within the statute's safe harbor for interceptions by a party to the communication. See 18 U.S.C. 2511(1), 2511(2)(d); see also R.I. Stat. s. 12-5.1-1 et seq. (one-party consent rule parallel to the federal statute). Tenenbaum transmitted the digital files at issue to MediaSentry, making it a party to the communication, and he has not shown here that any interception occurred with the purpose of committing a "criminal or tortious act" under state or federal law. Id.; see also Order on Motions in Limine, Capitol Records Inc. v. Thomas-Rasset, Case No. 06-1497 (D. Minn. June 11, 2009). The Motion to Suppress MediaSentry Evidence  is DENIED." (Gaudet, Jennifer)(links added by me).