Archive Message - 1995

From braintree!uunet!!!!!xmission!xmission!not-for-mail Sat Nov 4 07:34:40 1995 Path: braintree!uunet!!!!!xmission!xmission!not-for-mail From: (Deana Holmes) Newsgroups: alt.religion.scientology Subject: Article on ex parte search & seizure Date: 24 Oct 1995 06:44:21 -0600 Organization: XMission Internet (801 539 0900) Lines: 95 Message-ID: <46in35$> NNTP-Posting-Host: X-Newsreader: NN version 6.5.0 CURRENT #2 <from the front page of the Salt Lake Tribune, Tuesday, October 24, 1995> <reproduced without permission, because of its pertinent nature to this group> 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 present. '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 the evidence. 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. <end> <all typos are mine> Deana -- ====================Deana M. Holmes================================ Compiler of History of a.r.s == =Transformational Theologian, First Electronic Church of Scamizdat= ================Practicing encheferation since 1995================


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