Thursday, September 04, 2008

State of Michigan backs DLEG, codifies agency position that computer forensics technicians are required to be licensed under Michigan law

We have recently learned that computer forensics technicians are required to be licensed under Michigan law, that the Department of Labor and Economic Growth has always taken that position, and that several months after the DLEG's MediaSentry investigations began in Michigan, the State enacted a statute codifying the DLEG's position.

An avid reader of this blog, who has been independently studying the MediaSentry investigations in Michigan, had this to report recently. We thank him for the report.

Media Sentry’s days of unlicensed investigations of Michigan residents may soon be over.

On May 28, 2008, the Michigan governor signed into legislation an expanded revision of the state’s professional investigator licensing act. The new definitions make it absolutely clear that the activities of Media Sentry fall under the definition of a private investigator and that, as such, it needs to secure a license to investigate residents of Michigan.

Specifically, the act specifically covers any business that contracts to make an investigation for the purpose of obtaining computer forensics to be used as evidence before a court.

“Computer forensics” is defined by the new law as: “the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks, or any combination thereof.” Clearly this includes any and all of MediaSentry's activities in the RIAA cases.

A copy of the new statute, effective May 28, 2008, is attached.

This new statutory definition should not be anything new to Media Sentry since it appears to simply recognize a long-standing position of the regulating agency, the Michigan Department of Labor and Economic Growth (“DLEG”), that computer forensic activities are considered investigative activities under the old statute.

In 2006, Kessler International, a large international firm engaged in forensic accounting and computer forensics, conducted a national survey in which is wrote to the various state investigative licensing boards to determine, among other things, whether or not computer forensic technicians would be considered private investigators under the state’s licensing laws. The response that the Kessler company received from the DLEG was unequivocal in the agency’s position:
“Michigan does require that a “computer forensics technician” be licensed as a private detective”. (See May 22, 2006 letter from DLEG to Kessler International)
A copy of the 2006 DLEG letter is attached.

Practitioners involved in litigation involving Media Sentry should make a formal inquiry of their state licensing boards to determine whether or not those boards consider computer forensics to be an activity that triggers a requirement to be licensed as a private investigator. To the extent that their answer is affirmative, like Michigan’s, it may help with the argument that Media Sentry’s ongoing illegal investigations should not be accommodated or considered by the Courts.

I have included a web site to the results of the various state Private Investigative boards to Kessler International’s survey.
May 22, 2006, Letter of Michigan Department of Labor and Economic Growth

Michigan Statute effective May 22, 2008, codifying rule that investigator's license is required for “the collection, investigation, analysis, and scientific examination of data held on, or retrieved from, computers, computer networks, computer storage media, electronic devices, electronic storage media, or electronic networks"

Commentary & discussion:
Ars Technica

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player


Anonymous said...

YES, YES, YES. Finally some laws that throw the wrench in RIAA's crappy lawsuit campaign!!! (At least in Michigan)

So would this mean that all previous "evidence" collected would fall under this new law or would the lawsuits previous to this law be grandfathered in?

Also, how would this affect lawsuits in other states?

Jadeic said...

Do I hear the sound of a class action?

Anonymous said...

Then just get the darn license!

Oops, there's that pesky background check.

And you might have to prove that your methods are actually valid.

And all those past violations of Michigan law.

Oh well!


Joel said...

Great news!

I'm with anonymous, Michigan's position seems to be that this is codifies existing policy, how does this impact admissibility of Media Sentry evidence?

Anonymous said...

Would Dr. Jacobson also fall under this law?


Anonymous said...

As a Michigan resident, I'm very happy to see the newly specific law on the books. However, I'm in agreement with other assessments of the law as redundant when compared to the wording of the licensing requirement of private investigators already in effect. Still, it's good to have the issue addressed plainly so abuses can't be put through the spin cycle to avoid licensing requirements.

The unfortunate thing I see coming from this is that MAFIAA lawsuits already in effect not being affected due to clams of "But the law wasn't there when we filed our complaint!" IANAL, so I don't understand how grandfathering new laws into current lawsuits works, but I'm betting the justice that the RIAA is trying to buy will keep the new law from being effective until the next round of extortion letters.


StephenH said...

Does this mean that every defendant whos evidence was gathered by MediaSentry/Safenet after this law passed could strike it provided MediaSentry does not get an investigations license in the state of Michigan?

Jadeic said...

Does it not strike you as hypocritical that the implementation of retrospective laws is perceived as an anathema to the RIAA with the exception of course of retrospective copyright term extension?


Anonymous said...

Dear ZH:

What you say is precisely not accurate. Michigan's DLEG already said the law barred MediaSentry's investigations, and the letter of the law supported their claim. The new law is a clarification of old law, but the old law wasn't ambiguous.

Possible conversation:
MediaSentry: "Look, you fixed the wording, because obviously it was vague before!"
Defendants: "But DLEG told you it was illegal. That's not vague. And even if you weren't sure if it was legal, why didn't you get a court to rule on the issue before doing it? And even if you thought it was legal, it was still illegal, so the evidence is inadmissible."


Is this retroactive? I don't think so. Anyhow, any Michican-based defendant *already can* try to get MediaSentry's evidence thrown out, since MediaSentry may have been breaking the old law. Michigan's DLEG thinks they were, and I hope someday soon we'll see it in court.

Anonymous said...

Forgot to sign that last comment, sorry. -dp

Rick Boatright said...

Well, the survey map leads to my home state, where the atty general basically said "no, they're tools, not investigators."

Wow, _wildly_ divergent regulations.