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Supreme Court Internet Privacy Decision

Online Privacy

Sarah Deutsch
Attorney, Verizon
Thursday, October 14, 2004; 11:00 AM

In a key privacy decision, the Supreme Court this week let stand a lower court's ruling that allows Internet service providers to keep their customers' identities secret, even if the recording industry suspects them of illegally sharing music online.

Verizon attorney Sarah Deutsch and washingtonpost.com staff writer David McGuire were online Thursday, Oct. 14, at 11 a.m. ET to discuss the case.


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A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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David McGuire: Hi Sarah, thanks for joining us today. You've been fighting recording industry efforts to uncover the names of your Internet subscribers for some time now. Can you tell us briefly how this case originated and what Tuesday's Supreme Court decision means?

Sarah Deutsch: Thanks so much for inviting me to participate today, David. To give you some background on the case, this matter began in 2002 when the RIAA decided to circumvent traditional court processes and rely on a novel provision of the DMCA to strip Internet users of their anonymity and privacy and to obtain their personal information. The RIAA initially sent a few ISPs a test subpoena, issued by the clerk of a court, without approval by a judge. The test subpoena demanded that Verizon Online turn over the name and other personal information of a customer whom the RIAA accused of offering for download illegal copies of copyrighted music files stored on the customer's personal computer. Verizon refused on numerous grounds, including that the subpoena did not comply with the requirements of the DMCA, which applies only to files hosted on an Internet provider's network and not to private communications on a subscriber's home computer.

The RIAA then sued Verizon in federal district court in the District of Columbia to enforce the subpoena. On Jan. 21, 2003, a trial court ruled in favor of the RIAA. Verizon immediately sought and was granted an expedited appeal at the Court of Appeals, and the case was heard on Sept. 16, 2003. In a unanimous decision, Verizon won the appeal in December 2003, with the court holding 3-0 that RIAA's interpretation of the law was wrong and its use of the subpoena process unlawful.

The Supreme Court's action (refusing to accept cert - without commentary and without dissent) is a significant victory for consumers and for the Internet. The Supreme Court has shut the door on a dangerous and illegal subpoena campaign that threatened the constitutional rights of all Americans. It's important to note that copyright owners like RIAA are entitled to enforce their intellectual property rights and still can do so successfully using the traditional "John Doe" lawsuits, but the Court's action ensures that copyright holders (or their representatives or bounty hunters)—or even identity thieves and stalkers posing as copyright holders - will no longer be allowed to obtain personal information about Internet users by simply filing a one-page form with a court clerk.

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U Boulder, CO: I have heard that the RIAA has technologies that can find illegal downloaders online and track them. Is this stuff legal? Isn't that hacking? Do ISPs allow this kind of software on their networks?

Sarah Deutsch: The RIAA, MPAA and even the pornography industry (acting as a "copyright owners") are increasingly hiring Internet "bounty hunters" who use search tools, including search bots to scour the Internet for infringing files. Just like those mechanical spiders in the movie "Minority Report," the spiders go into users' shared folders on their hard drives and match file names to the names of copyrighted songs and movies. Unfortunately, the bots make mistakes,which is why one ISP received a notice demanding that they terminate a subscriber who had allegedly downloaded the Harry Potter movie when the attachment was actually the Harry Potter book report.

Search bots are not illegal -- if you file share -- your hard drive may be open for others to see. Some other "interdiction technologies" however may be illegal. Congressman Berman's self-help bill in this regard was quite controversial

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Washington, DC: From Adam Eisgrau, Exec. Director of P2P United (members include Grokster and Morpheus)

Hello Sarah and David. The RIAA's lawsuit campaign against the public is based on the premise that, after all, they're just trying to get at "bad actors": people who violate the copyright law. But, doesn't that beg the question of --what the law ought to be-- concerning downloading and making P2P software available to the public? We've just seen this play out again in the RIAA's unsuccessful fight to define "bad actors" to include, in effect, any technology company that puts out a product that could be used by others to commit copyright infringement -- novelly labelling such marketing "inducement" of infringement.

Why is Congress so open to the entertainment industries' proposals to radically expand their rights under the copyright law at the expense of consumer choice and the tech-driven growth of our economy, and what can people who think this is a bad idea do about it?

Sarah Deutsch: P2P is viewed by the content industry as a major threat to their business model and it is certainly a "disruptive technology." However, we've learned in the past that other disruptive technologies, like the VCR, like the Internet also hold the promise of greater benefits for the content community. The controversial "Induce Act" introduced in the Senate targeted innocent companies and technologies that consumers need and expect like the IPod and Tivo. P2P technology of course has many good uses that should be preserved.

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Middletown, Del.: Would Verizon ever consider handing over the identities of the worst music pirates? Probably not, as the original lawsuit indicates. Nevertheless, what does Verizon do to try to prevent this kind of activity from taking place among its subscribers?

Sarah Deutsch: This is an excellent question. Verizon opposes piracy and warns users that it is illegal to engage in copyright infringement. We certainly warn users of the consequences. If we find someone infringing on our system or network we take down infringing materials. However, ISPs don't know what users are doing on their home computers and we cannot and should be monitoring private communications. P2P communications only travel over our network and we are a "mere conduit."

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Alexandria, VA: What does this decision mean for the average consumer, or someone who likes to download music from the Internet?

Sarah Deutsch: The decision does not mean that downloading is now legal or that RIAA will no longer be able to find you. They still can through the filing on something called a "John Doe" lawsuit. So it's best to do downloading from authorized music sites to protect yourself. However, the decision means that a stalker or pedophile or pornographer posing as a copyright owner can no longer walk into a court and fill out a one page form to obtain automatic address to you or a loved one's name address and phone number.

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Chappaqua, N.Y.: Now that this mess appears to be behind us, tell us about some of the collaborative steps that Verizon and the recording industry might be taking to reduce the amount of online piracy?

Sarah Deutsch: Verizon stands committed to working with RIAA and MPAA because ironically we both stand to benefit from new services like Verizon's commitment to build out the next generation of high speed broadband services. This service, which sends fiber right to the home could be up to 20 times faster than today's DSL or cable modem speeds. Imagine the content applications and devices that could benefit both industries. We are in talks with content companies today on these business relationships

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Orlando, FL: It's real nice that you're out to protect your subscribers, don't get me wrong, but isn't there a more selfish motive here? What would it have cost you to comply with these subpoenas had the court ruled against you?

Sarah Deutsch: This case for Verizon was about protecting the privacy of our customers and that's why we fought this all the way through the Supreme Court. Certain ISPs had no problem handing over their customer's names to RIAA, and after some wrangling, recovered their costs for turning over names. Of course, cost reimbursement is an issue but it doesn't replace the privacy, due process and safety concerns. I was proud that the company stood up for the principle in this case and won the right result.

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Passamaquoddy, Maine: In light of the non-ruling by the Supremes, what comes next with that other court ruling that took place in the Los Angeles court regarding Grokster and Morpheus?

Sarah Deutsch: I'm not involved in this case, but the court of appeals in this case held that Grokster was not contributorily liable because it had no control over what users were doing with P2P software and P2P has legitimate and substantial noninfringing uses. Hollywood has now asked the Supreme Court to take the case. The case has implications for the entire technology sector, consumers, ISPs and device manufacturers because they are seeking a new "induce" standard of liability where any product or service they believe threatens their business model can be sued for "inducing" someone else to infringe. Of course, almost every digital product and service today has some type of ability to copy, distribute or display content.

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Washington, DC: The RIAA has said that if it's not allowed to file John Doe subpoenas, the added expense it'll incur in court costs means that it won't be able to offer settlements to copyright infringers as small as it would otherwise. Have you seen any evidence of this since the ruling came down against the RIAA?

Sarah Deutsch: RIAa has mechanized the John Doe process to such an extent it's like a factory assembly line. They have consistently said the John Doe process is working and that their enforcement campaign hasn't "missed a beat." I hear claims are generally settling for around $3000 -- many of the targets are children, grandparents, teenagers with limited resources. You are directed to a "settlement center" which sends you a form settlement agreement.

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David McGuire: Unfortunately Sarah can only be with us until 11:45 today. Keep the questions coming, but we'll have to wrap up in about 15 minutes - Thanks, Dave.

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Anonymous: What will happen to the people that have been prosecuted prior to this decision?

Sarah Deutsch: The 4000 or so folks RIAA has sued under John Doe lawsuits are not at issue in the case since the John Doe suit is a recognized legal tool for obtaining someone's identity. The process plays out under the supervision of a judge with notice to the subscriber and the ability of the subscriber to try to challenge or "quash" the complaint before his or her name is turned over.

For the thousands of names RIAA collected under the illegal process, they can't use that information -- but I suspect they would simply re-file using the same IP address under the John Doe process. I believe their campaign is to targeted to teach everyone a lesson regardless of the circumstances.

You may have read that they improperly targeted a 12 year old girl in a housing project and a grandmother in Massachusetts who never had P2P software on her Mac.

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Wilkes-Barre, PA: I am having trouble understanding why the RIAA targets Internet service providers. If this were TV, does that mean if millions of Americans bought a cord say that was legally sold in stores and this cord could somehow connect the TV to a pay channel like HBO for free, that Comcast or Starpower would be responsible? Not the store that sold the cord? Why don't these groups go after the businesses that are helping people illegally download songs instead?

Sarah Deutsch: Unfortunately, telecommunications companies and high tech companies in the distribution chain have always been targets of copyright holders looking for deep pockets. Part of the strategy has been to shift the burden of policing for copyrights and enforcing private rights on to our industries. We have resisted become the Internet police -- although we certainly want to work cooperatively as partners and not as enemies. We have spent the last 10 years fighting bill after bill in Congress that seeks to hold the intermediary liable.

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Arlington, Va.: Good morning. How many subscribers does Verizon have to its broadband Internet service? How many of them does Verizon (or the RIAA) suspect are hardcore music pirates?

Sarah Deutsch: Verizon has a few million subscribers but these numbers are steadily growing. As I mentioned before, Verizon (and other ISPs) do not monitor users' home computers we don't know whether users are engaged in illegal music trading. The numbers, however, are in the millions, although I recently saw an OECD report that showed levels of piracy in the US were diminishing. Having a good, inexpensive legal alternative to file sharing, like I-Tunes, helps people make the right choices.

Based on my experience in this RIAA litigation, the only real difference I can see between a music pirate and a "hardcore" music pirate is someone's time. Teenagers and kids have more time on their hands, hence have many more songs they have downloaded. Are all these people truly deserving of the label "pirate"? Probably not, but there is also more educational campaign through a carrot approach rather than only the "stick" of suing the end user.

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Reston, Virginia: Why doesn't Verizon and other ISPs just block the sites due to the ongoing issue as to whether P2P can be criminal activity?

Sarah Deutsch: What you would be asking Verizon to do is block the user's entire home computer. P2P software works by one user's computer connecting directly to another.

Even if a website was hosting illegal material -- ISPs can take the site down if they host it. Blocking, however, doesn't work from a technical or policy matter. In a recent case in Pennsylvania, ISPs were asked by law enforcement to block child pornography sites overseas and tried to do so. It turned out they were blocking millions of legitimate sites that residing on the same URL or domain name as the illegal material. The District Court just ruled that this type of blocking was unconstitutional.

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Alexandria, Va.: It seems to me that the recording industry, foiled in this instance, could seek other legal arguments with which to pursue this case. Are you already anticipating different challenges? What do you suspect (without showing your entire hand) is coming up on the horizon?

Sarah Deutsch: RIAA has actually sued two others -- Charter Communications, a cable company in St. Louis and the ACLU on behalf of a student in North Carolina. They are seeking the same "form subpoena process" as in our case. The Charter case is currently pending at the 8th Circuit court of appeals and the North Carolina case is in the District court. We may see decisions in both of these cases soon given the Supreme Court's ruling.

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Washington, D.C.: The RIAA is downplaying the significance of the Supreme Court's pass on making its own ruling on this case and points to their ongoing lawsuit campaign as proof they are still effectively battling file-swappers. What do you expect to be the RIAA's next move on the legal front, besides its piece-meal lawsuit plan?

Sarah Deutsch: I agree. RIAA could have used the John Doe lawsuits from the beginning and saved everyone the heartache of going through two years of litigation up to the Supreme Court. That said, if they claim the legal campaign is working, they are entitled to continue. Unfortunately, there has got to be a better solution than just suing their own customers in perpetuity. We also see that their campaign involves legislation to make it easier for them (and law enforcement) to sue end users.

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David McGuire: Sadly we're out of time. I'd like to thank Sarah for joining us today and our readers for submitting so many thoughtful questions.

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