Nesson & Tenenbaum: Distorting Wiretapping Law and Possibly Violating Rule 11

Joel Tenenbaum is a 25-year-old graduate student at Boston University.  The music industry caught him illegally sharing songs online.  Through counsel, he has tacitly admitted as much, conceding his use of Kazaa, and is focusing his defense instead on arguments that the copyright scheme is, essentially, unconstitutionally punitive.  My colleague, Tom Sydnor, recently addressed some of these constitutional arguments in his historical examination of statutory damages in copyright cases.  The blog Copyrights & Campaigns has covered the Tenenbaum case exhaustively.

Tenenbaum is represented by Harvard Law School Professor Charles Nesson, whose conduct as counsel has been bizarre.  He has surreptitiously recorded and made public conversations with opposing counsel, his own consultants/experts, and even his own wife.  One might argue that some of this -- particularly disclosure of the consultant/expert recordings that are both against his client's interest and may otherwise be protected from disclosure as attorney work product -- is in violation of certain ethical obligations Nesson has under Massachusetts' ethics laws.  The most complete litany of Nesson's odd litigation behavior is chronicled here.  I would prefer, however, to leave it to Tenenbaum himself to determine the effectiveness of counsel and to avoid slinging unnecessary ethical accusations here. 

What this blog post focuses on instead, are the wiretapping-related motions in the Tenenbaum case.  Nesson may have violated the federal court's rules of conduct, and even if not, his position about the scope of federal wiretap laws is alarming.

On June 23, 2009, Tenenbaum filed a motion (that I will call "the MediaSentry motion") that argued that the plaintiffs, through their agent MediaSentry, violated federal and state wiretapping laws in connection with their fact-gathering in the case.  Put differently, Tenenbaum argues (with Nesson as his lawyer) that the recording industry's gathering of information about Tenenbaum's uploads and downloads is unlawful wiretapping.  Next, on July 6, 2009, the plaintiffs in the Tenenbaum case themselves filed a motion (that I will call "the sanctions motion") argued that Nesson may have violated such laws as a result of his odd (and counterproductive) habit of recording things, as noted above.  (The district court has already ordered Nesson to show cause why his recording was lawful in light of the judge's orders that he cease recording; his response is due on July 9.)  Both motions rely in part on the fact that Massachusetts law requires that all parties to a communication consent to the recording of it.  Mass. Gen. Laws ch. 272, s 99(B)(4) (defining "interception" as to "secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication") (emphasis added).

This lengthy exposition of Tenenbaum background is necessary first because Nesson appears to be playing fast and loose with the district court, in violation of his obligations under the Federal Rules of Civil Procedure.  Second, Nesson grotesquely misconstrues the statutes at issue in ways that -- if adopted -- would have lasting repercussions well outside the bounds of copyright litigation.

Nesson's public statements in defense of his own conduct are completely at odds with the legal representations he made in the MediaSentry motion.  More specifically, Nesson recently told Wired Magazine that he was "unaware" that recording a conversation in Massachusetts requires the consent of all parties:  "I have to say I was completely unaware of this Massachusetts law. When I dug into this thing, I am amazed to what it purports to be."  Yet only two weeks before, he relied upon the very same statute to which he professed ignorance.  In the MediaSentry motion, he wrote:  "And unlike the federal statute, the Massachusetts statute requires both parties' consent, not merely one party's consent, before recording is exempted fro [sic] the statute."  MediaSentry Motion at 15.

To the extent that Nesson claims, in response to the sanctions motion, ignorance of the Massachusetts statute, he admits that he did not review the MediaSentry motion of which he was undersigned counsel.  Notably, he is the only attorney who signed that brief who is actually admitted to practice in the Massachusetts federal district court.  The Federal Rules of Civil Procedure, which govern practice in the federal district court explain:

"By presenting to the court a . . . written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of that person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law."  Fed. R. Civ. P. 11(b)(2) (emphasis added).

That Nesson did not know, two scant weeks later, about the scope of Massachusetts law, suggests that he did not read the MediaSentry motion he signed, i.e., he did not engage in any reasonable inquiry, in violation of Rule 11.  The Supreme Court (in another copyright case, coincidentally) held that this duty is non-delegable:

"The signing attorney cannot leave it to some trusted subordinate, or to one of his partners, to satisfy himself that the filed paper is factually and legally responsible; by signing he represents not merely the fact that it is so, but also the fact that he personally has applied his own judgment.  . . . [T]he text establishes a duty that cannot be delegated . . . ."

Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 125 (1989).  Nesson cannot, therefore, pawn off the brief to his co-counsel Kiwi Camara, who is hoping to have better luck as a last-minute addition to the Tenenbaum team than he had in the Jammie Thomas case. In any event, Camara was not admitted to practice in the federal district court at the time of the brief's filing; only Nesson was.  Sanctions under such circumstances would be appropriate.

Had Nesson actually reviewed the MediaSentry motion, he might have decided, prudently, not to file it, and to be more candid to the court.  The MediaSentry motion nowhere mentions the fact that counsel Camara made the same arguments weeks before in federal district court in Minnesota (in the Jammie Thomas case), and that the district judge there ruled (at pages 2-12) against him.  Is Nesson required by law to tell the judge in Massachusetts about the judge's decision in Minnesota only weeks earlier?  No, but it makes counsel seem needlessly evasive and rather less trustworthy, to the detriment of the client Tenenbaum. 

The substance of the MediaSentry motion is worth understanding -- and refuting -- because the arguments are so weak and, if adopted by a court, would have lasting effects that go well beyond any disagreements about copyright.  Moreover, it appears that Kamara may again make the same arguments in an apparently yet-to-be-filed class action that will seek the disgorgement of the recording industry's thousands of settlements with file sharers.

Given that the recording industry wrote an entire brief refuting these MediaSentry arguments in the Jammie Thomas case, here, and the district court dismissed the allegations with its written order, I will be brief.  I must explain at the outset, however, that in order for MediaSentry's conduct to be potentially unlawful under the federal wiretapping statute, it must be shown both that the communications allegedly intercepted (i.e., the Kazaa messages transmitted to MediaSentry) are not "readily accessible to the general public," 18 U.S.C. s 2511(2)(g)(i), and either that MediaSentry is not a party to the communication or, if it is, that its interception is for the purpose of violating another statute, 18 U.S.C. s 2511(2)(d).

Tenenbaum's jurisdictional arguments are without support:
MediaSentry is a company that apparently does business in New Jersey and Maryland (MediaSentry Motion at 8) yet is accused of violating numerous Massachusetts statutes including Massachusetts' wiretapping law (the one of which Nesson now pronouces ignorance) and Massachusetts' regulations on private investigators (they must be licensed).  Yet Tenenbaum advances no basis for subjecting MediaSentry, an out-of-state entity, to those regulations.  Notably, the Massachusetts wiretapping law has been construed not to reach the out-of-state recording of conversations that originate or terminate in Massachusetts.  MacNeill Eng'g Co. v. Trisport, Ltd., 59 F. Supp. 2d 199, 202 (D. Mass. 1999).  Those who are concerned by the sometimes overzealous extension of state laws to out-of-state conduct should be concerned by Tenenbaum's arguments here.

Tenenbaum would criminalize conduct because of failure to abide by a website's terms of use:
Tenenbaum alleges that MediaSentry,

"using its own copy of KaZaA, searches the KaZaA network for files . . . . MediaSentry records an image for each screen displayed by KaZaA when it lists the available files . . . [and] using KaZaA, downloads selected files . . . to confirm that the files are in fact copyrighted sound recordings."  MediaSentry Motion at 2-3.

That means that MediaSentry is acting just as any other peer on the Kazaa network, looking for files.  Tenenbaum claims that such behavior should nonetheless be unlawful.  Despite the fact that anyone can participate on the Kazaa network for free (knowing among other things that the recording industry monitors downloads), Tenenbaum argues that the Kazaa network is not truly public.  Rather, "the Kazaa network is available only to users of KaZaA who consent to certain terms of use, not to the general public."  MediaSentry Motion at 10.  Tenenbaum alleges that MediaSentry violated those terms of use.  Id. at 11-12.  (Note that this puts Tenenbaum in the position of enforcing, as a third party, Kazaa's terms of use, which he himself violated by trading copyrighted songs.)

This argument is very similar to that which the prosecutors used in the Lori Drew case.  My colleague, Berin Szoka, blogged about the case here, as have many others.  Lori Drew is the despicable woman who, on MySpace, "cyber-bullied" an adolescent girl, Megan Meier, who later killed herself.  The prosecutor there argued that Drew's failure to comport with the terms of service of MySpace constituted a criminal violation of the Computer Fraud and Abuse Act (CFAA), 18 USC s 1030.  The district judge, as Berin noted, recently overturned the jury verdict -- to the hosannas of the tech community (including myself) who believe that as loathsome as Ms. Drew may be, she did not violate the CFAA.  Yet Tenenbaum makes essentially the same argument, that failure to abide by the terms of service of a computer network will be enough to cause one to be subjected to criminal liability, in this case, under the federal wiretapping law, Title III, 18 U.S.C. ss 2510 et seq.   Putting aside any differences over the appropriate scope of copyright, all those who agreed with the overturning of the jury verdict in the Drew case should be aghast at Tenenbaum's arguments here.

Tenenbaum would not allow anyone to gather information that is only machine readable: 
Tenenbaum argues:

"At the level of TCP/IP packet communications (as opposed to at the level of web browsers that translate such communications into human-readable form), the Internet is not readily accessible to the general public."  MediaSentry Motion at 12.

"The communications system at the TCP/IP level requires special expertise to access.  . . . An ordinary person could not have [decoded the TCP/IP packets] because the Internet is not designed for ordinary people to listen in on such packet transmissions."  Id.

Thus, according to Tenenbaum, the only information that is publicly available is information that is readily displayed by a web browser or other client software. Therefore, any peek at information (HTML source code even?) that is not ordinarily displayed by the browser or client software -- no matter how public that information appears to be -- now triggers criminal liability according to Tenenbaum.

Tenenbaum argues that if the "Court holds otherwise, the Internet will have no protection under the wiretap laws."  MediaSentry at 13.  That grossly misstates matters.  If the Court rejects Tenenbaum's position, then it is only unlawful to intercept communications to which one is not a party and that are not generally available to the public.  That is the way that it should be; to suggest that a person is limited in her use of information actually transmitted to her to that which appears in the browser is a nonsensical and irresponsible argument to make. 

Tenenbaum mentions elsewhere that "KaZaA encrypts the information it sends between different nodes," MediaSentry Motion at 10, but he does not belabor the point.  That may be because MediaSentry relies upon the Kazaa client software itself to decrypt the information.  Even if not, to suggest that the designated recipient of a file cannot lawfully decrypt that file is bizarre -- we all have the right to open mail that is addressed and delivered to us.  Moreover, we all have the right to look at at encoded message posted on a town-square bulletin board (or on Facebook) and try to decrypt it at home.  (This paragraph makes a totally separate point from any reasonable expectation of privacy protected by the Fourth Amendment in cases where law enforcement  decrypts information and uses it as evidence in a criminal proceeding.  This is not a criminal proceeding and the Fourth Amendment is not at issue.)
 
Tenenbaum misconstrues what it means to wiretap for the purpose of violating another statute:
As noted above, the consent exception to the federal statute does not apply when the purpose of the wiretapping was to violate the law.  Thus, under such circumstances, being a party to a communication is not enough to escape liability.  Tenenbaum suggests that MediaSentry is not saved by the consent exception to the federal statute because its wiretapping was for the purpose of violating the law, namely for "engaging in the business of a private detective without a license."  That is silly for at least two reasons.  First, his construction of the detective statute, MediaSentry Motion at 6, would cover his own counsel, who themselves necessarily collect evidence to be used at trial.  Every lawyer does.  Second, even if MediaSentry's conduct had the effect of violating the licensing regulation, it was not MediaSentry's goal to do so.  The courts, on this point, are unanimous.  See, e.g., Sussman v. ABC, Inc., 186 F.3d 1200, 1202 (9th Cir. 1999); United States v. Dale, 991 F.2d 819, 841 (D.C. Cir. 1993); Betancourt v. Nippy, Inc., 137 F. Supp. 2d 27, 33-34 (D.P.R. 2001) (purpose of wiretapping was to prepare for a non-frivolous suit).  (Puerto Rico is part of the First Circuit of U.S. federal courts, as is Massachusetts, where Tenenbaum's case is pending.)

In sum, Nesson (through Tenenbaum) does a butcher job on wiretapping law to such a degree that he ought to be ashamed to be advancing these arguments.  The effect of his proposed construction of law is not merely to expose countless IT professionals and computer hobbyists to criminal penalties, but also to impair law enforcement by preventing them from employing certain non-warrant-requiring surveillance techniques they have been using lawfully for decades.