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 designed 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. 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 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 law.
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 without 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 representing 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.