IT'S AN issue of copyright against constitutional rights. Some copyright holders, particularly software makers, are using a special court order to send their employees legally into one's home. -----------------------------------------------------------------
At 6:30 a.m. on July 26, 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. They were there, they said, to search for and seize any computer bulletin board (BBS) equipment that her 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, it would not have been unusual. But the Casalinos were not the subject of a criminal-case 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."
Authorized by Congress in 1984, these searches were designed to help stop counterfeit goods based on 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 violations - 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.
Furthermore, they can be used to prevent publication of materials that infringe on a copyright before there has been any finding of infringement, thus violating the First Amendment, some lawyers say.
"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 this year.
Scientology uses it, too
Especially alarming to some has been the recent use of ex-parte searches by the Church of Scientology. The church has conducted three such searches in a bid to thwart the alleged distribution, via the Internet computer network, of Scientology documents by church critics. The church contends these documents are protected by copyright and trade-secret law.
Tom Kelley, an attorney for ex-Scientologist Lawrence Wollersheim - whose Boulder, Colo., home was searched Aug. 22 by marshals, Scientologists and their attorneys - claimed that "what this permitted was an intelligence operation as opposed to a mere seizure of copyrighted materials. . . . it's like having your sworn enemy going though your underwear drawer."
While an ex-parte search requires a court order, the search is actually done by a private party, not law-enforcement officers - though an "officer of the court," often an off-duty federal marshal, normally must be present.
When the search is for electronic data - which can be easily hidden on a computer hard disk or on floppy disks that can be stashed anywhere - the searchers can virtually ransack a house and still be within the court order.
Defenders: Speed is essential
Search defenders say that adhering to conventional 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 runs Novell's anti-piracy program.
Added Helena Kobrin, a lawyer for 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."
In the Casalinos' case, the alleged pirate files were not on the Internet but on a BBS, a small-scale online service usually run by an individual on a home computer.
Miki Casalino, who claimed she only learned of the alleged illegal software after it was too late, said she felt "so damn violated" that Novell employees were searching her home. "I used to trust the police and the legal system. Now every time the doorbell rings . . . I wonder: `Who is coming after us now?' " ----------------------------------------------------------------- Steps to get an ex-parte order
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.
-- More harm will be done to the plaintiff than to the defendant if the order is not issued.
-- The alleged infringing material can be easily deleted if any advance notice was given.
Plaintiffs must also post a bond with the court to compensate the defendant for any damages if nothing is found.
Los Angeles Times