Jammie Thomas was unable to convince a jury of her innocence the first time around. Now, as her retrial approaches, her new lawyer hopes to do better in court by asking the judge to make one small change to the trial: blocking the file-sharing evidence obtained by MediaSentry, one-time investigators for the RIAA.

Thomas is now represented by Kiwi Camara, a former student of Harvard Law professor Charles Nesson, and Camara's early court filings show a Nesson-like tendency to seek a dramatic ruling that strikes at the heart of the case.

And Camara's request to the judge is certainly not short on drama. "In orchestrating this campaign, built around illegally obtained evidence and targeted at individuals, most of whom faced millions of dollars of potential liability without the assistance of counsel, these [RIAA] lawyers, led by Matthew Oppenheim and Richard Gabriel, violated the ethical rules governing our profession on an unprecedented scale" by commissioning MediaSentry's work, says the document.

Without MediaSentry's work, the recording industry has no case against Thomas. It was MediaSentry that found Thomas' IP address when browsing the KaZaA network, downloaded some songs from her machine, and logged her information. Without that evidence, the case would be over.

Kiwi Camara

The basic argument is that MediaSentry was not a licensed private investigator in Minnesota. Under Minnesota law, if someone takes "a fee, reward, or other consideration... for the purpose of obtaining information for others" by "obtaining through investigation evidence to be used... in preparation for trial of civil or criminal cases,” they must be licensed as a private investigator. Similar issues have dogged MediaSentry in places like Maine, Michigan, and North Carolina.

Apart from the issue of state licensing, though, Camara also charges that MediaSentry violated several federal laws against wiretapping, and it's here that things start to get weird. Consider the claim being made:

MediaSentry found Jammie by (1) using KaZaA to request a file transfer from Jammie’s computer to a MediaSentry computer; (2) using a separate program or programs to intercept the Internet packets being sent from Jammie’s computer to the MediaSentry computer as a result of this request; (3) reading the IP address of Jammie’s computer from these packets; and (4) tracing this IP address back to Jammie. This kind of investigation of network traffic is lawful only after certain procedures are followed: when there is prior approval by a court and when the person conducting the investigation is properly licensed. When these procedures are not followed, such investigation constitutes criminal wiretapping and the illegal collection of evidence by an unlicensed private investigator.

Camara's claim here is that using a file-sharing program, then logging the IP addresses of those computer that you connect with, amounts to eavesdropping and wiretapping. According to his filing, "The Pen Register Act makes it a crime to record IP addresses, while the Wiretap Act makes it a crime to examine the contents of the IP packets as they cross the Internet."

But MediaSentry wasn't snooping on other people's communications (pen registers are generally deployed by law enforcement to catch routing and signaling information passing between two other parties); it was simply logging the packets sent to it over the public Internet.

Just as Charles Nesson wants to do more than defend his client, so Camara looks to stick a stake through the heart of the RIAA's entire legal campaign. "What drives this campaign is the illegal evidence that MediaSentry collects," he writes. "What would end it is suppression of that evidence."

The recording industry has no patience for this approach. They want to keep focused on Thomas and the facts of the case, not letting the trial expand into some broad attack on the entire litigation campaign. To that end, RIAA lawyers have actually filed papers with the court asking for an Order barring Thomas from "introducing evidence of other copyright lawsuits involving Plaintiffs that have nothing to do with the facts and issues to be decided in this case."

The trial begins on June 15, and Ars will have gavel-to-gavel coverage.