COMMENT: Don't Delete Internet privacy
August 26, 2003
BY PETER SWIRE
Overlooked in the battle between the recording
industry and those who download copies of their favorite music has been the
privacy of all those who surf the Internet or send e-mail. As a result of a
recent court decision in the case between the Recording Industry Association of
America and the Internet service provider Verizon Online, every consumer's
identity, home address and phone number are now available to anyone who can fill
out a one-page form. Congress can and should step in to fix this problem
immediately.
The problem began in late 2002, when the
recording association demanded that Verizon Online identify one of its customers
based on an accusation that the person may have violated copyright laws by
swapping files. Verizon declined, citing the threats to customer privacy, due
process and the First Amendment.
Was Verizon over-reacting? No.
Unfortunately, the court ruled in favor of the
recording association, setting a precedent that will enable copyright owners to
identify Internet users' real-life names, home addresses and phone numbers.
Verizon has appealed the ruling and will argue its case again next month.
Privacy is destroyed because it has become so
easy to reveal the identity of Internet users. Now, a copyright holder simply
fills out a one-page form and a federal clerk immediately issues the subpoena to
the Internet service provider (Verizon Online, AOL, MSN, etc.). The service
provider must then release the name, home address and phone number of that user.
Internet service providers risk large penalties if they even question the
validity of the subpoena.
This procedure violates due process, as there
is no judicial oversight and only the flimsiest showing of cause. The openness
of the Internet is restrained and the First Amendment is undermined when anyone
can trace every e-mail and Web page post to a home address and phone number.
Perhaps the most dangerous consequence, the
ruling puts subpoena power in the hands of anyone willing to pretend to have a
copyright claim. Without a judge's review, these fraudulent requests are
impossible to distinguish from legitimate ones. This flood of legally sanctioned
harassment will quickly become the "New Spam," with the kinds of
abuses as limitless as the Internet itself:
- A gay pornography Web site has already
issued subpoenas to SBC Communications to try to learn the identity of
visitors to the porn site. Other porn sites and gambling sites can track
down visitors and demand payment not to reveal the user's identity, all
under the pretext of enforcing the site's "copyright."
- The most common use may be
that of Web site operators who want to identify their visitors for marketing
purposes or for more nefarious reasons, including identity theft, fraud or
stalking.
- Private investigators will
gain an unstoppable way to turn any e-mail address into a person's name and
street address.
Fortunately, a better alternative is clear.
Courts have already used "John Doe" procedures, in which users can
object anonymously to having their identity revealed. The judge looks at the
facts and, if the person is engaged in illegal piracy, then the judge reveals
the name and orders effective sanctions. If the copyright holder or scam artist
does not have a winning case, then the user name remains private. John Doe
legislation of this sort has been proposed in California and should become a
priority on Capitol Hill.
The Recording Industry Association of America
lawsuits against users are beginning now, long before the appeal of the Verizon
proceeding will be decided. Before the new spam proliferates, we should have
fair procedures in place that will protect intellectual property while
protecting privacy, free speech and due process.
PETER SWIRE is a professor at the Moritz College of Law of the Ohio State
University, and was the Clinton Administration's chief privacy counselor. Write
to him in care of the Free Press Editorial Page, 600 W. Fort St., Detroit, MI
48226.
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