The Internet and the Right to Privacy

A few months ago, I wrote a column about the Recording Industry Association of America (RIAA) attacking alleged file sharers. The RIAA is forcing businesses that operate completely within the law to provide it with personal information on customers whom the organization alleges to be file sharers. Of course, it’s unlikely the RIAA refers to its tactics as “attacks.” I imagine it’s more likely to say it uses legal means to defend the music industry against the grave injustices cast upon it by those openly stealing its products through the Internet. A rose by any other name is still a rose… with really, really big thorns.

Since that column was published, the RIAA has frequently been in the news. Despite its proclamations to the contrary, I’d say its plan is meeting more resistance than it imagined. It’s been rebuked by some of the largest corporations in America, spurned by the pillars of academia, and asked to provide detailed information to the federal government regarding its quest and tactics. Oh, and it’s managed to alienate its core customer base. Sure, everything’s right on plan.

You may recall the RIAA subpoenaed Verizon to provide personal information on a number of alleged file sharers it identified as Verizon customers. At the time, the RIAA was publicly vague about the method it’d used to identify alleged file sharers. What we know for sure is it was only able to capture the electronic identity of the alleged file sharers. It needed Verizon’s compliance to tie the electronic ID to the real person or persons in the physical world.

Verizon was unsuccessful fighting the subpoena in court and was forced to provide the requested personal information on the alleged file sharers. In an event legal beagles have been anticipating for months, Verizon will appeal the constitutionality of that verdict. Arguments will be heard September 16. You can hear Vince McMahon promoting this as a battle between two behemoths that just flat out don’t like each other very much. Put down those law journals and constitutional treatises; get out the popcorn. This one’s going to be good.

It’s not just Verizon battling the RIAA. In recent months, the likes of SBC Communications, Massachusetts Institute of Technology, Boston College, and New York University have all refused to bow to its pressure. Each of those entities has taken legal action to protect the privacy rights of subscribers and students, respectively. Boston College is thumbing its nose at the RIAA. It decided to ignore the subpoena.

Sen. Norm Coleman will hold hearings on Capitol Hill regarding the RIAA’s subpoena process. Coleman is chairman of the Senate Governmental Affairs’ Permanent Subcommittee on Investigations. He’s concerned the RIAA subpoena process may be “excessive.”

Coleman was quoted in a recent Wall Street Journal article saying, “Theft is theft, but in this country we don’t cut off your arm or fingers for stealing.” He wants the RIAA to clarify how it ensures against erroneous subpoenas, which would invade the privacy of innocent Web users. The same article reveals that Coleman was a roadie during the 1960s. Think his Woodstock-era friends ever imagined he’d be labeled “the fine gentleman from Minnesota”?

Finally, an attorney representing a Verizon customer whom the RIAA alleged is a file sharer filed suit to prevent Verizon from supplying the RIAA with his client’s personal information. The attorney, Daniel Ballard, was quoted as saying, “You cannot bypass people’s constitutional rights to privacy, due process and anonymous association to identify an alleged infringer.”

You may not be a file sharer, a record company, or an ISP. But don’t think these legal maneuvers don’t have anything to do with you. You could find yourself a player in this Orwellian drama, even assuming the RIAA’s role, if you have copyrights to protect. The legal decisions that result from these cases will likely affect all of us, personally and professionally.

I remember an old “West Wing” episode about nominating a new Supreme Court justice. One judge on the president’s short list of candidates had written a paper arguing the Constitution doesn’t provide the right to privacy. An advisor made an impassioned plea against placing this candidate in the highest court in the land. Privacy will be the defining legal argument in the 21st century, primarily due to the Internet’s growth and continuing technology advances. The advisor shuddered to think about Supreme Court rulings that didn’t account for a citizen’s right to privacy. Melodramatics aside, the right to privacy on the Internet is a huge issue. It’s being decided in front of our eyes. Watch closely, this is going to get interesting. Oh, and please pass the popcorn.