From braintree!uunet!in1.uu.net!newsfeed.internetmci.com!chi-news.cic.net!news.uoregon.edu!xmission!xmission!not-for-mail Sat Nov 4 07:34:40 1995
From: email@example.com (Deana Holmes)
Subject: Article on ex parte search & seizure
Date: 24 Oct 1995 06:44:21 -0600
Organization: XMission Internet (801 539 0900)
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Ex Parte Searches
Utahns Discover Software 'Cops' Can Storm Into Homes
By Adam S. Bauman
LOS ANGELES TIMES
At 6:30 on the morning of July 26, a contingent of off-duty U.S. marshals
and officals from software maker Novell In.c of Orem rang the doorbell at
Joseph and Miki Casalino's Salt Lake County home.
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. The contingent was there to search and seize any and all
computer bulletin board (bbs) equipment that her 18-year-old son 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 Casalinos were not the subject of a
criminal search. Instead, they were the target of a little known but
increasingly common civil-court procedure known as "ex parte search and
seizure with expedited discovery."
Person's Rights vs. Copyrights: Authorized by Congress in 1984, ex parte
searches were designed to help stanch the production and sale of
counterfeit goods based on Mickey Mouse T-shirts, Rolex watches, Gucci
handbags and the like. They are gaining favor as a weapon against
alleged copyright and trademark infringement. Critics contend they
trample on constitutional rights in the process.
The procedure allows 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 infringment, thus violating the First Amendment to
the Constitution, some lawyers say. Once a rarely used procedure, ex
parte searches now are carried out routinely by software companies.
"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.
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, 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
that these documents are protected by copyright and trade-secret laws.
While an ex parte search requires a court order, the search actually is
conducted by a private party, not law-enforcement officers--though an
"officer of the court," often an off-duty federal marshal, normally is
'Violated': Miki Casalino, in whose Millcreek house Novell found the
"Planet Gallifrey BBS"--which she acknowledged 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 inside of her home.
Defenders of the searches say the complaints amount to little more than
bad feelings from people they say are violating copyright laws. In cases
like these, they maintain, adhering to conventional civil-court
procedures--in which a process server gives notice to the defendant, who
then is given time to respond in court before any search can take
place--would enable perpetrators to punch a few computer keys and destroy
To obtain an ex parte search order, the complaining party must appear
before a federal judge and show it is likely that infringing material
will be found, that there 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 deleted easily if advance notice is given.
Plaintiffs also must post a bond to cover any damages--if nothing is found.
====================Deana M. Holmes================================
firstname.lastname@example.org================ Compiler of History of a.r.s ==
=Transformational Theologian, First Electronic Church of Scamizdat=
================Practicing encheferation since 1995================