Conspiracy Nation -- Vol. 6  Num. 34
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                    ("Quid coniuratio est?")

Are Searches in Civil Cases Also Violating Rights?

By ADAM S. BAUMAN
LA TIMES STAFF WRITER

At 6:30 on the morning of July 26, a contingent of off-duty U.S. marshals and officials from software maker Novell Inc. rang the doorbell at Joseph and Miki Casalino's home outside Salt Lake City.

Thinking her husband had forgotten something when he left for work, Miki padded to the door in her robe and was shocked to find a marshal flashing his badge. They were there, they told her, to search and seize any and all computer bulletin board (BBS) equipment that her then-18-year-old son, Joseph III, was operating under the name "Planet Gallifrey BBS."

Had this been a criminal case, and had the search been conducted with a traditional criminal search warrant, there would have been nothing especially unusual about it. But the Casalino family was not the subject of a criminal-case search. Instead, it was the target of a little-known but increasingly common civil court procedure known as "ex parte search and seizure with expedited discovery."

Authorized by Congress in 1984, these types of searches were designed to help stanch the production and sale of counterfeit Mickey Mouse T-shirts, Rolex watches, Gucci handbags and the like. But they're now gaining favor as a weapon against alleged copyright and trademark infringement and, critics contend, trampling people's constitutional rights in the process. Ex parte searches essentially allow private parties to conduct searches of other private parties with only limited oversight by courts or law enforcement authorities, these critics say. Furthermore, they can be used to prevent publication of materials that infringe on a copyright before there has been any finding of infringement, thus violating the First Amendment to the Constitution, some lawyers say. Once an obscure and rarely used procedure, ex parte searches are now carried out routinely by software firms and others.

"These companies have figured out a way around the constitutional ban on prior restraint, and that's why it's so dangerous; speech is being shut off at the spigot," said Harvey Silverglate, a Boston attorney who successfully defended a Massachusetts Institute of Technology student in a highly publicized software piracy case earlier this year. "If this process is unchecked . . . it drives a giant truck through the First Amendment.

Especially alarming to some in the legal community has been the recent use of ex parte searches by the Church of Scientology. As part of a battle with anti-Scientology activists that has been raging for months on the Internet computer network, the church has conducted three ex parte searches in an effort to thwart the alleged distribution, via computer networks, of Scientology religious texts and other documents. The church contends these documents are protected by both copyright and trade-secret law.

Dennis Erlich, a former Scientologist and now an outspoken church critic, says about 25 Scientologists accompanied by two off duty Inglewood police detectives arrived to conduct a search of his Glendale home earlier this year. Though only about half a dozen Church members were ultimately afforded entry, they spent the better part of a day rifling though his house and ultimately departed with numerous computer disks and other material, Erlich alleges.

"If it was a valid criminal warrant, issued with probable cause by a judge and served by law enforcement officials, I would have been fine," he said. "But in this case, it was like having your mortal enemies getting permission from the courts, look in your house in every drawer and closet, look on your hard disk and take a copy of everything they want, and even delete off your hard disk what they deem is not allowed."

While an ex parte search requires a court order, the search is actually conducted by a private party, not law enforcement officers though an "officer of the court," often an off-duty federal marshal, is normally required to be present. When the object of the search is electronic information which can be easily hidden on the hard disk of a computer, or on floppy disks that can be stashed anywhere the searchers can virtually ransack a house and still be within the rights of the court order.

"We contend that the authority for the search was obtained without a full and proper disclosure to the court in that it was over-broad and, in effect, a fishing expedition," said Tom Kelley, an attorney rep- resenting ex-Scientologist Lawrence Wollersheim, whose Boulder, Colo., home was searched Aug. 22 by a group of marshals, Scientologists and their attorneys. Wollersheim and Robert Penney ran FACTnet, a computer bulletin board devoted to exposing information about the church and which church officials allege was disseminating copyrighted material. A bulletin board is a small-scale online service usually set up by an individual for a specific purpose using a home computer.

"What this permitted was an intelligence operation as opposed to a mere seizure of copyrighted materials," Kelley added. "In these cases with the ex-Scientologists, it's like having your sworn enemy going though your underwear drawer."

Helena Kobrin, an attorney for the Church of Scientology, denied there was anything inappropriate in the searches "The materials which were the subject of the seizure order existed in hard copy and in fact unauthorized hard copies were found in different locations during the searches, which is why different areas of the homes had to be searched."

But a federal judge in Denver later vacated the search order and forced the church to return all the seized material which it did only after deleting some of the allegedly confidential information from the computer disks.

Miki Casalino, in whose house Novell found the "Planet Gallifrey BBS, "which she admitted was being run by her son, though she only learned of the alleged illegal software after it was too late said she felt "so damn violated" that Novell employees were searching the inside of her home.

"I used to trust the police and the legal system," she said. "Now every time the doorbell rings, I start trembling in fear. I wonder: 'Who is coming after us now?' "

Defenders of the searches say the complaints amount to little more than bad feelings on the part of people who they say are violating copyright laws. In cases like these, they say, adhering to conventional civil court procedures in which a process server gives notice to the defendant, who is then given time to respond in court before any search can take place would simply enable the perpetrators to punch a few computer keys and destroy the evidence.

"The people running a pirate BBS put themselves in a position of having us enter their private residence to halt their activities," said Ed Morin, a former FBI agent who manages Novell's anti-piracy program.

Added Kobrin of the Church of Scientology: "Where the Internet is involved, there is also a danger of further distribution of the infringing materials with the potential of it getting into other hands on a more rapid basis. So prompt action is crucial in these cases.

To obtain an ex parte search order, the complaining party must appear before a federal judge and show that it is likely infringing material will be found, that will be more harm to the plaintiff than to the defendant if the order is not issued, and that the alleged infringing material can be easily deleted if advance notice is given. Plaintiffs must also post a bond with the court to compensate the defendant for any damages if nothing is found.

Novell pioneered usage of the ex parte procedure against computer bulletin boards in 1991, when the company used it against two in California, "Red October" and "Custom Software BBS." And during the last year, the company teamed up with software giant Microsoft Corp. to search and seize three alleged pirate bulletin boards "Deadbeat BBS" in Woodsbury, N.J., "Cloud 9 BBS" in Minneapolis and "Assassins Guild BBS" in Lexington, Ky.

John R. Heritage Jr., who admits running "Deadbeat BBS" when he was in college, recalls being terrified when he returned home one day last year to find a group of eight people in his driveway.

But when he discovered the group consisted of four lawyers, two marshals and two technicians from Novell and Microsoft, Heritage was dumbfounded. "Looking back, I just can't believe that private companies like Microsoft and Novell have the power to just invade my home upon command like that."

Heritage, like several other operators of bulletin board systems that were allegedly used to distribute illegal copies of computer software, ultimately agreed to pay a settlement to end the civil case. The Casalinos say they offered to forfeit the computer system and pay a settlement of $2,500 to Novell, but the company balked.

"We'd like to fight the suit," Miki Casalino said, "but we simply don't have the resources."

Morin says the civil-suit approach is actually a relatively gentle way to go compared with criminal prosecution. "Pirates are breaking the law. They could go to jail and lose their freedom. The civil procedure is a softer approach than pushing for criminal prosecution and throwing the pirates in jail where many of them belong." But a lot of legal experts disagree.

Said one lawyer who refused to be identified: "Talk about overkill, U.S. marshals coming into your house to search not even for a criminal violation but a civil violation." The lawyer also pointed out that a statute passed by Congress, known as the Privacy Protection Act, may have been violated by these ex parte searches.

Indeed, there are almost no situations in which federal or state courts will stop publication of information in advance. Aggrieved parties must go to court after the fact and try to prove libel, slander, or other violations. But ex parte search orders, when used in copyright cases, can in effect allow prior restraint.

Said John Shephard Wiley, a law professor at UCLA who specializes in intellectual property law: "This is wild stuff. Most people would be shocked to know there are conditions under which Microsoft could get a federal judge to order U.S. marshals to invade your bedroom."

Software company officials say they take great pains not to invade people's privacy unnecessarily, limiting their searches strictly to the area a computer is located.

"We don't relish going into peoples' private homes, and we try to be minimally intrusive in the seizure process," said Microsoft attorney Jim Lowe.

"Thus far we have been very lucky because the [bulletin boards] have always been segregated in separate rooms with nothing else in them," said Harrison Colter, senior corporate counsel at Novell.

"Although we have the legal right to search anywhere, and perhaps we missed evidence we would have found if we had exercised that right, we have not felt we had to go though people's bedrooms, look in their closets or dresser drawers."

But many are very uncomfortable relying on the good intentions of the searchers.

"To me, ex parte seizure of goods on a copyright theory can be suspect on constitutional grounds," said David Nimmer, an intellectual property attorney at the Los Angeles law firm of Irell & Manella. "In any event, they should be limited to two situations: people who pose an objective risk of flight and people with a history of disregarding court orders."

I encourage distribution of "Conspiracy Nation."