The US Department of Justice (DoJ) has weighed in on behalf of RIAA piratebusters in a court filing against telecomms giant Verizon, which is struggling to keep the identity of a customer and alleged P2P bootlegger confidential.
Verizon has maintained that divulging the suspect's identity without a proper court order -- that is, one based on solid evidence of criminal activity and approved by a real judge -- violates Constitutional guarantees of due process of law and unduly burdens free speech.
RIAA lawyers are arguing that a simple subpoena obtained from a court clerk, which any fool can file against anyone suspected of copyright violation, should afford adequate protection of due process, as the dreaded Digital Millennium Copyright Act (DMCA) provides.
A district court ruled in favor of the RIAA in January; Verizon appealed the decision, and asks that the suspect's name not be revealed until the matter is decided. The RIAA, on the other hand, would like to get on with the business of persecuting the alleged malefactor as soon as possible.
Raising the Constitutional issues gave the civil-rights fanatics in Ashcroft's DoJ an opportunity to weigh in. They argue that due process is indeed safe, for they can find nothing in the Constitution expressly forbidding searches and seizures on the basis of quick-and-dirty, self-service subpoenas.
Indeed, according to the Fourth Amendment, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
It doesn't actually say that a judge needs to be involved. It only says that the proposed intrusive activity mustn't be "unreasonable," and insists that there be "probable cause" to act. Over the years it's come to be established that the way to ensure that probable cause exists is by obtaining a judge's approval. The DMCA, along with several other bits of 'tough-on-crime' legislation rammed through Congress in the past decade, eases the legal burden on those who would accuse their neighbour of wrongdoing, especially when the accuser is a corporate cartel with piles of money available to pursue neighbours doing wrong. This type of burden-lifting doesn't directly contradict the Fourth Amendment -- merely 230 years of case law, which the DoJ has conveniently neglected to recall.
Concerning the issue of free speech, the DoJ is on even shakier ground. "It is manifest that the DMCA's subpoena provision targets the identity of alleged copyright infringers, not spoken words or conduct commonly associated with expression," the Ashcroft legal beagles say. (my emphasis)
What they don't mention here is the ease of abusing these newfangled subpoenas, and the burden on speech that such abuse can create. The subpoenas are essentially fishing licenses allowing anyone to accuse first and gather evidence later. Thus while it's true that they only apply to alleged copyright violators, it's also true that virtually anyone can claim to have a copyright, and easily, and cheaply, begin proceedings against anyone else they claim is infringing it. This in turn can lead to overcaution in what one says and does on-line: a clear burden on speech.
For Verizon there are two issues. First, for obvious economic reasons, it does not wish to be held legally responsible for every packet that zips across its pipes. It is willing to police content that it hosts and remove infringing material, but when it comes to file sharing and communications between two parties, it wants to be considered a carrier, not a host. It does not need the administrative burden of investigating every transfer of data between two parties whenever a third party objects, especially as casually as the DMCA subpoena provision allows.
Second, it does not wish to alienate or lose customers by frightening them, not so much that they may get busted for bootlegging music, but that they may have their privacy violated by any jackass who takes the time to fill out a form at the clerk's office and fork over the five dollars needed to get it stamped. So the company is arguing that a judge should review requests for identifying users suspected of copyright infringement, to discourage frivolous demands. And well it should.
That said, this may be an uphill battle for the telco. While Verizon is definitely 'right' in the sense that virtually any reasonable and impartial person would agree with their arguments, the law is something else altogether. It appears that Congress intended to delight its wealthy patrons in the RIAA and MPAA by reducing the burden of probable cause; and in court cases such as this, Congressional intent carries a great deal of weight, even when it's entirely wrongheaded, or even corrupt. ®