The U.S. Appeals Court, D.C. should either strike down Sec. 512(h) of the Digital Millennium Copyright Act (DMCA) as unconstitutional or read it to permit subpoenas forcing disclosure of the identity of alleged Internet infringers only in the course of a pending copyright case, 45 business and consumer groups said May 16. In an amicus brief filed in RIAA v. Verizon Internet Services, the groups -- which included ISPs, privacy advocates and consumer organizations - - said the key issue in the bitterly contested litigation between RIAA and Verizon was "whether fundamental First Amendment anonymity and privacy rights can be trampled with an unreviewed subpoena that is issued based on hastily generated paperwork and rests merely on a 'good-faith' allegation of copyright infringement."
Although Verizon at first attacked Sec. 512(h) on other grounds, most recently it has insisted that the statute is unconstitutional on 2 grounds: (1) It authorizes federal courts to issue process in the absence of a case or controversy, in violation of Article III. (2) It abridges Internet users' free speech rights. However, the U.S. Dist. Court, D.C., ruled last month that neither argument had merit (WID April 25 p1). The court stayed both its order requiring Verizon to provide information on the subscriber named in the first subpoena and another order denying the ISP's motion to quash the 2nd subpoena, allowing the company to seek relief from the appellate court.
The 45 amici criticized the lower court decision on several grounds. First, they said, there was no basis for the First Amendment analysis that because alleged copyright infringement was the expression targeted by Sec. 512(h), the First Amendment provided minimal protection: "Proven infringement of copyrights is not protected by the First Amendment, but allegations of copyright infringement are inherently no more reliable than allegations of obscenity, defamation or other types of unprotected speech." Copyright law necessarily implicates free speech, amici said, because it places significant restrictions on public debate and expression of ideas.
The groups said, the court was wrong to suggest that Sec. 512(h) didn't directly affect political and other speech entitled to First Amendment protection by forcing disclosure of someone's identity and to "bless" the statute's "supposed procedural safeguards" as adequate to protect a user's speech and rights of association.
The DMCA subpoena violates the Fifth Amendments's Due Process Clause, the groups said, because it: (1) Substantially affects private interests such as privacy and the right to anonymous speech. (2) Carries a substantial risk of being either misused or mistakenly applied to Internet users who aren't involved in infringement. (3) Wouldn't offend the legitimate interests of the govt. and content owners if additional safeguards were put in place. (4) Fails to require notice to individuals whose personal information is subpoenaed, give them an opportunity to be heard and to require prior judicial determination before process is issued.
"After canvassing the area, the consumer amici cannot find a single state of federal statute or rule that permits a court subpoena to impinge upon First Amendment rights without either a lawsuit being filed (also required by Article III) or prior court approval," the groups wrote. To sidestep the "case or controversy" problem, they said, the appeals court should interpret Sec. 512(h) as "creating a supplemental subpoena procedure" that applies only in pending copyright infringement suits.
Last week, Public Citizen urged the appeals court to make RIAA and Verizon follow the same procedures to protect Internet anonymous speech that courts had required in other cases (WID May 19 p8).
On May 16 the D.C. Circuit gave RIAA until June 13 to file its brief and until June 20 to file its amici. Verizon's reply is due July 3, final briefs July 11. The case is set for oral argument Sept. 16 at 9:30 a.m.
Business and consumer groups signing the joint filing include the Alliance for Public Technology, American Assn. of Law Libraries, American Civil Liberties Union, American Civil Liberties Union Capital Area, American Legislative Exchange Council, American Library Assn., Assn. of Research Libraries, Caprica Internet Services, Citizens for a Sound Economy Foundation, Competitive Enterprise Institute, Computer & Communications Industry Assn., Computer Professionals for Social Responsibility, Consumer Action, Consumer Federation of America, Consumers Union, DigitalConsumer.org, Digital Future Coalition, Electronic Frontier Foundation, Electronic Privacy Information Center, European Internet Industry Assn., Frontier & Citizens Communications Cos., InKeeper Co., Media Access Project, Mercury Network Corp., National Assn. of Consumer Agency Administrators, National Coalition Against Domestic Violence, National Consumers League, National Grange of the Order of Patrons of Husbandry, N.Y. State Telecommunications Assn. Inc.,e Pacific Research Institute, Privacy Rights Clearinghouse, Privacyactivism, Progressive Internet Action, Public Knowledge, SBC Internet Services, Southern Star, SticNet LP, Tex. Internet Service Providers Assn., U.S. Internet Industry Assn., U.S. Internet Service Provider Assn., U.S. Telecom Assn., Utility Consumers Action Network, Wash. Assn. of Internet Service Providers, WiredSafety.Org, and ZZAPP Internet Services.