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In the wake of the ongoing mod chip raids, I'm sure many people are wondering what happens next. So, whether you've been raided or are just casually following the story with an air of curiosity, here is a general overview of what can happen after the Immigrations and Customs Enforcement raids are completed. Of course, there can by any amount of time lag between these steps, and they can also occur in multiple different orders. In fact, some of these events can span years. Consider the following a general outline of the process that changes in actual application to most situations.

Phase I: Raid Aftermath
1. There is a raid, items are seized.
2. The seized items end up in a warehouse somewhere.
3. The ICE agents, along with the investigators and often the company who requested ICE enforcement examine the items and analyze their course of action. (In this case, it would seem that Microsoft, Sony, and/or Nintendo requested the raids since the mod chips theoretically affect their rights. Based on the press release, the ESA was also involved.)
4. This is the point in the process where there is typically the longest delay, while everyone analyzes their course of action. This would also be the ideal time for someone who was raided to retain counsel, before anything gets worse.
5. At this point, it is typically just an investigation, and no one has been charged or sued for anything yet.

Phase II: Initial Actions
1. During this phase, if someone is going to be released for lack of evidence or error, this is the most likely time. However, this may take some negotiations or arguments to get off free and clear, so to speak. If the party is released, the seized property should be returned in a reasonable amount of time.
2. The companies and/or the government may wish to enter negotiations for settlement.
3. The companies and/or the government may file initial temporary restraining orders or injunctions on those who were raided in order to prevent further activities.
4. The government may begin freezing assets or have warrants issued on future shipments.
5. During this phase, representation by counsel is probably the most important because it is still theoretically possible to avoid Phases III-V.

Phase III: Legal Action
1. The government may proceed with criminal charges, which can result in jail sentences and/or fines and/or forfeiture of seized property.
2. The companies may initiate a civil suit over the rights of theirs which were violated. This can result in monetary damages, permanent injunctions and/or restraining orders.
3. Counsel is necessary at this point. A public defender can be appointed for the criminal trial if the defendant cannot afford counsel.

Phase IV: Legal Outcome
1. If the defendant loses either of the above actions, the penalty will be assessed.
2. If the defendant wins, the property should be returned and the defendant can walk away free and clear.

Phase V: Counter Suit
It is possible for the defendant to counter sue on the civil matter, be that for defamation, anti-trust, or simple damages (this depends on the particular case). The government, however, is immune from suits of this nature in these circumstances.

Phase VI: Future Raids
What is important to remember is that a victory in this raid does not necessarily provide any protection from future raids. ICE may be back a year from now or ten years from now, and the particulars from this raid do not impact that future raid.


That is a basic outline of the process, and it is one that occurs in many industries frequently. While I personally still find it puzzling that the raids were on mod chip sellers rather than sellers of pirated games, as discussed in my prior post, the overall process should still reflect this outline. It is, unfortunately, a long, hard road after being raided by ICE.

According to a news release issues today, ICE (Immigration and Customs Enforcement) has executed warrants related to the manufacture of mod chips that are designed to "allow users to play illegally obtained, pirated and/or counterfeit software on video game consoles including Sony's Playstation 2, Microsoft's XBOX and XBOX 360, and Nintendo's Wii." A gallery of the seized chips can be found here.

As many may know, mod chips that allow users to circumvent the anti-piracy technology in consoles are covered by the anti-circumvention provisions of the Digital Millennium Copyright Act, while a small exemption was allowed for libraries for archival purposes.

The mod chip issue has always been a rather tricky one. On the one hand, mod chips created for the express and limited purpose of circumventing copy protection shouldn't be allowed on the market. When a product has no legal purpose, that is generally the case. On the other hand, there are plenty of legitimate uses for mod chips, and to that end, the ones designed for those purposes, be that homebrew software or improved media capabilities, should be allowed to exist in the stream of commerce. Think of a mod chip like a knife. A knife can be used for the legitimate purpose of cutting open a box or chopping a vegetable, but it can also be used for the illegitimate purpose of stabbing an innocent person. Perhaps the better approach is to target the software pirates rather than the mod chip manufacturers, but by and large, the mod chip makers are probably easier to find.

It will be interesting to see which direction this ongoing "investigation" moves. I can only hope that ICE does not inadvertently harm those who were not participating in targeted software protection circumvention. It seems that the case with some technology related seizures is a lack of understanding of the technology leading to a less than accurate application of the law.