The New Surveillance

Case Western Reserve Law Review Volume 54 | Issue 2 2003 The New Surveillance Sonia K. Katyal Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Sonia K. Katyal, The New Surveillance, 54 Case W. Res. L. Rev. 297 (2003) Available at: https://scholarlycommons.law.case.edu/caselrev/vol54/iss2/4 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE NEW SURVEILLANCE Sonia K. Katyalt INTRODUCTION A few years ago, it was fanciful to imagine a world where in- tellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, precisely that is taking place. Emboldened by courts and legislators, copyright owners now undertake a widening degree of control over cultural products through the guise of piracy detection. As is now clear, the Internet is no longer a smooth-functioning patchwork of anonymous possibilities for peer-to-peer communication. Instead, lurking behind the faqade of such potential connections lies an increasing and subtle host of opportunities for legal accountability and detection, particularly where the use (or misuse) of intellectual property is concerned. In late July 2002, the Recording Industry Association of America ("RIAA") contacted Verizon, which provides Internet services for its customers, seeking the identity of a user of "a computer... that is a hub for significant music piracy."' Verizon, citAssociate Professor, Fordham University School of Law. This paper was selected as the winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition, sponsored by the Yale Law School Information Society Project and the Yale Journal of Law and Technology. For helpful comments, the author thanks the participants at the 2003 Berkeley Intellectual Property Scholars Conference and the Fordham Workshop Series, as well as Jonathan Barnett, Dan Capra, George Conk, Robin Feldman, Jill Fisch, Eric Goldman, Ellen Goodman, Hugh Hansen, Jennifer Higgins, Justin Hughes, Robert Kaczorowski, Neal Katyal, Orin Kerr, Thomas Lee, Mark Lemley, Esther Lucero, Glynn Lunney, Peter Menell, Joel Reidenberg, Peter Siegelman, Rebecca Tushnet, Polk Wagner, and Benjamin Zipursky. John Farmer, Allison Schilling, and Susan Cordaro all provided excellent research assistance. I Brief for the Recording Industry Association of America ("RIAA") at 1, In re Verizon Internet Servs., Inc., 240 F. Supp. 2d 24 (D.D.C. 2003) (No. 02-MS-0323). Since then, a number of actions have been filed on both procedural and substantive grounds to challenge the legitimacy of the subpoena process. See, e.g., Pac. Bell Internet Servs. v. Recording Indus. Ass'n of Am., No. C03-3560SI, 2003 WL 22862662 (N.D. Cal. Nov. 26, 2003); Recording Indus. Ass'n of Am. v. Univ. of N.C. at Chapel Hill, No. 1:03MC138 (M.D.N.C. Nov. 21, 2003); 297 CASE WESTERN RESERVE LAW REVIEW (Vol. 54:2 ing consumer privacy concerns, refused to provide the information, and the RIAA filed suit under the Digital Millennium Copyright Act ("DMCA"), amidst a flurry of media attention. As Verizon's Vice President Sarah Deutsch explained, "If the RIAA's interpretation [of the DMCA] is accepted, there is no way we can continue to ensure our customers' privacy rights as we understand them today."3 Ultimately, the D.C. Circuit rebuked the RIAA's position.4 Some fear, however, that this recent ruling simply marks a temporary setback in the onward march to undermine consumer privacy in the name of intellectual property. In recent months, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. Today, the RIAA and other copyright owners maintain automated Web crawlers that regularly survey and record the Internet Protocol addresses of computers that trade files on peer-to-peer networks.5 After the RIAA's initial victory at the trial court in Verizon, hundreds of subpoenas were issued sometimes numbering seventy-five per day - each unveiling the digital identities of various Internet subscribers. 6 Schools, responding to threats from the recording industry, have implemented programs that track and report the exchange of copyrighted files.7 A few have even decided to audit and actively monitor files traded by their students, at the RIAA's request. 8 And last session, there Boston Coll. v. Recording Indus. Ass'n of Am., Misc. Act. No. 1:03-MC-10210-JLT (D. Mass. Aug. 7, 2003); Mass. Inst. of Tech. v. Recording Indus. Ass'n of Am., Misc. Act. No. 1:03-MC10209-JLT (D. Mass. Aug. 7, 2003). 2 17 U.S.C. § 512 (2000). 3 Chris Marlowe, RIAA, Verizon TiffRevolving Around Customer Privacy, HOLLYWOOD REP., Aug. 22, 2002, at I. 4 Recording Indus. Ass'n of Am. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003). 5 See infra Part II. 6 Ted Bridis, Music Lawsuits Amass 75 Subpoenas Per Day, AP ONLINE, July 19, 2003, available at 2003 WL 57309557; Katie Dean, RIAA Legal Landslide Begins, WIRED NEWS, at http://www.wired.com/news/digiwood/0, 1412,60345,00.html (Sept. 8, 2003). 7 See, e.g., Leonie Lamont, Firms Ask to Scan University Files, SYDNEY MORNING HERALD, Feb. 19, 2003, at 3 (reporting that recording companies asked for permission to scan all computers at the University of Melbourne for sound files, in order to gather evidence of alleged breaches of copyright); see also Electronic Frontier Foundation, Universities Should Resist Network Monitoring Demands, at www.eff.org/EP/P2P/university-monitoring.pdf (last visited Jan. 20, 2004); Letter from Electronic Privacy Information Center on P2P Monitoring to Colleges and Universities (Nov. 6, 2002), available at www.epic.org/privacy/student/ p2pletter.html; Kristen Philipkoski, University Snoops for MP3s, WIRED NEWS, at http://www.wired.com/news/technology/0,1282,32478,00.html (Nov. 13, 1999); VIRGINIA E. REZMIERSKI & NATHANIEL ST. CLAIR II, FINAL REPORT NSF-LAMP PROJECT: IDENTIFYING WHERE TECHNOLOGY LOGGING AND MONITORING FOR INCREASED SECURITY END AND VIOLATIONS OF PERSONAL PRIVACY AND STUDENT RECORDS BEGIN (2001), available at http://www.aacrao.org/publications/catalog/NSF-LAMP.pdf. 8 See Lamont, supra note 7, at 3. In April 2003, the RIAA also filed suits directly against four college students accused of operating file sharing networks for the purposes of copyright 2003] THE NEW SURVEILLANCE were proposals before Congress that placed intellectual property owners in a virtually unrestrained position of authority over ordinary consumers. 9 During the summer of 2003, Senator Orrin Hatch proposed des (...truncated)