From braintree!uunet!in1.uu.net!news.sprintlink.net!newsfeed.internetmci.com!news.msfc.nasa.gov!elroy.jpl.nasa.gov!swrinde!howland.reston.ans.net!news-e1a.megaweb.com!newstf01.news.aol.com!newsbf02.news.aol.com!not-for-mail Sat Nov 4 07:34:43 1995
From: firstname.lastname@example.org (Hi Im Xenu)
Subject: LA Times article - the whole thing
Date: 24 Oct 1995 12:40:06 -0400
Organization: America Online, Inc. (1-800-827-6364)
Reply-To: email@example.com (Hi Im Xenu)
(the salt lake city version is shorter than the LA Times version, so I've
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 de signed 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. Further more, they can be used
to prevent publication of materials that in fringe 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
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 with out 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
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
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
"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
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
"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
"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."