Anonymity Versus Law Enforcement:
The Fight Over Subpoenaing Alleged Downloaders' Names From Internet Service Providers

By JULIE HILDEN
julhil@aol.com
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Wednesday, Oct. 01, 2003

Recently, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in a landmark case that raises, among other issues, the issue of the scope of anonymity rights on the Internet.

The case pits the Recording Industry Association of America (RIAA) against the Internet Service Provider (ISP) Verizon. It is part of the ongoing litigation, on so many fronts, over peer-to-peer file distributing and downloading.

The case began because the RIAA sent a subpoena to Verizon demanding the identity of a particular user. The user, according to the RIAA, had illegally downloaded - and thus infringed copyrights on - over 600 songs in a single day. Verizon refused to comply, and the RIAA sued.

The suit raises a number of important issues. In this column, I will concentrate on two. The first is how to interpret the subpoena power that is set forth in the Digital Millenium Copyright Act (DMCA).

The second is whether a user identity subpoena such as the one issued to Verizon - even if it were authorized by the DMCA - violates the First Amendment, and, in particular, the right to speak anonymously. For arguably, unless users can access the Internet anonymously, they cannot truly speak anonymously there.

In its second opinion in the case, the district court held that the First Amendment did not prevent enforcement of the subpoena. But the basis of its holding, as I will explain, is in some tension with Supreme Court precedent on anonymous speech.

The Statutory Interpretation Issue: The DMCA's Subpoena Power

The parties' positions on the statutory interpretation issue - that is, the issue of how far the DMCA's subpoena power reaches, whether to all ISPs or only some - were fairly clear-cut.

The RIAA argued that the DMCA authorizes the issuance of a subpoena to any ISP when copyright infringement is alleged - as it was with respect to the user whose name the RIAA was seeking.

But Verizon countered that the DMCA's subpoena power allowed subpoenas only to certain ISPs - and Verizon said it didn't fit the bill, because its role was not to store data, but to transmit it. Therefore, Verizon argued, it had no obligation to respond to the subpoena.

The DMCA itself makes the storer/transmitter distinction - which was one point in favor of Verizon's argument. Also helpful to Verizon's position was the fact that one of the DMCA's purposes is to insulate ISPs from legal liability under certain circumstances. Thus, the idea that the DMCA might allow certain ISPs not to respond to subpoenas is, at a minimum, a plausible one.

But there is also strong evidence in favor of the RIAA's view. For the other purpose of the DMCA is to allow copyrights to be enforced over the Internet, so as to prevent copyright infringement. Also, the DMCA's most basic definition of Internet Service Provider reaches both storers and transmitters like Verizon. Moreover, the subpoena power seems to reference this basic definition - not the storer/transmitter distinction noted above, which appears elsewhere in the statute.

Obviously, there was copious statutory evidence on both sides. So why was the issue of whether Verizon could be subpoenaed initially unclear? The answer is probably that, as the district court suggested, the DMCA drafters weren't thinking about illegal downloaders when they wrote the bill, and when it became law.

Indeed, as the court noted, when the DMCA was enacted, "peer-to-peer (P2P) software and bots, a software tool used by copyright owners to monitor the Internet and detect unauthorized distribution of copyrighted materials . . . were not even a glimmer in anyone's eye." (Quotations omitted).

Applying laws to more-or-less unanticipated new technologies is always difficult.

In the end, faced with this quandary, the district court - in its first opinion in the case - took refuge in literalism. It clung to the basic ISP definition - which neatly covered Verizon - and therefore found that the user identity subpoena was indeed authorized under the DMCA.

For illegal downloaders, that ruling was very bad news: It meant the DMCA had empowered the RIAA to go after them in a quick, low-cost way - through a subpoena alone, as opposed to what is called a John Doe action, a suit against someone whose name you do not yet know.

But the battle wasn't over yet: Even if the DMCA did authorize the subpoena, that authorization could still be held unconstitutional. Thus, the court next had to decide whether to quash (that is, invalidate) the subpoena on the ground that it infringed the users' First Amendment right to speak anonymously.

The Court Embraced The Right to Speak Anonymously on the Internet

Though the point has not been sufficiently well-publicized, the district court's opinion wholeheartedly embraced the right to speak anonymously on the Internet - at least, in theory. For at the same time, it held that the RIAA subpoena does not violate this right.

The court's holding was based upon three strong Supreme Court precedents - Buckley v. American Constitutional Law Fund, McIntyre v. Ohio Elections Comm'n, and Talley v. California. Each of the three recognized the right to speak anonymously - although none did so with respect to cyberspace. (However, other Supreme Court decisions, such as Reno v. ACLU, have established that the First Amendment is fully applicable online.)

Together, the three cases the court cited protect the right to pamphlet and petition anonymously. They establish, in effect, that campaign-related publications cannot be required to bear the names, addresses, or other identifying information of those who issued them.

In these cases, the Supreme Court recognized anonymity rights even though it was plain that to do so, had a cost: Anonymity tends to impair law enforcement. A libelous campaign pamphlet is harder to punish if it is anonymous. So is a campaign pamphlet that infringes copyright.

In the cyberspace context, anonymity rights can have the same effect: If an Internet user can illegally download copyrighted files - and thus violate the law - with true anonymity, then there's little hope of the RIAA tracking the user down. Indeed, the Internet user, unlike a pamphleteer, may be literally impossible to track down; there are no witnesses in cyberspace.

Furthermore, recognizing broad anonymity rights on the Internet could mean that far worse perpetrators than mere "file sharers" could get off scot free. As I've explained in a prior column, Internet anonymity has been under fire since the September 11 attacks because it increases terrorists' ability to easily - and globally - plan attacks.

Nevertheless, the district court did recognize anonymity rights online - just as the Supreme Court had done in the context of pamphleteering.

Yet, at the same time, the district court made those anonymity rights virtually toothless.

Why the Anonymity Rights the Court Recognized Were Toothless

First, the court held that anonymity rights are strongest when political speech is at issue. At the same time, it assumed that what the alleged downloader was supposedly downloading wasn't political. As a result, it saw the subpoenas as relatively innocuous - whereas it would have doubtless found very troubling a subpoena seeking, say, the names of those who'd exchanged files containing Democratic campaign materials.

The problem with this holding, though, is that music can be very political - just ask, say, Bob Dylan, Neil Young, or Bruce Springsteen. Marginalizing art and music, and protecting only campaign-related speech, is not the way for America to have a strong, healthy First Amendment.

Second, the court noted that Verizon tells users that it may turn over their identities to outsiders if it is subpoenaed to do so. Thus, it suggested, users can't really expect anonymity.

But this answer is obtuse about realities. Almost no one reads the long form contract they enter into with their ISP, so in reality, users weren't on notice that they weren't anonymous.

Moreover, even if users were on notice, why is that relevant? If users truly have the right to speak anonymously on the Internet, as the court held, then their ISPs must protect that right.

After all, it is impossible for most people, and even most institutions, to serve as their own ISPs. So if ISPs do adopt a non-anonymity policy, users will have no choice but to comply - and thus effectively will have no right to anonymity

Third, and finally, the court held that the DMCA's procedures "prevent any substantial encroachment on the First Amendment rights of Internet users." It reached this holding because in order to get a subpoena issued, the RIAA had to at least claim, based on a "good faith belief," that copyright infringement - which is not a First-Amendment-protected act, unless it counts as "fair use" - had occurred.

According to the court, the requirement of a good faith belief prevents a substantial encroachment on First Amendment rights, because it sufficiently ensures that the material subpoenaed is likely to be evidence of lawbreaking. Yet in fact, it's dangerously easy to claim a good faith belief in just about anything.

If the DMCA required the copyright owner to prove copyright infringement - the fact of it, not just a belief about it - then that might significantly diminish the First Amendment harms. But it doesn't. And if a good faith belief about infringement, in a particular case, ends up being wrong, then the First Amendment harm to the person exchanging files will be very serious indeed.

Why Anonymity Rights Are Relevant to Us All - Not Just Illegal Downloaders

In the end, by pretending to recognize anonymity rights, but then making these rights effectively meaningless, the district court did a disservice both to Verizon and its users. It also declined to reach a true compromise in the inevitable clash between anonymity rights and law enforcement goals.

Yet some compromise is necessary. The presence or absence of the option of anonymity on the Internet won't only affect illegal downloaders. It will affect every Internet user who believes that he or she might someday have something so important to say - or information so important to exchange - but fears there is insufficient protection online to speak anonymously. For along with its costs, anonymous speech has potentially immense benefits - a matchless candor on the part of the speaker, and the potentially highly beneficial revelation of secrets the public should know.

Until we balance these costs and benefits rationally, and work out a compromise between them, both our civil liberties and our security will be imperiled.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was recently released in the U.S.. It will also be published in the U.K. and, in French translation by Actes Sud. In reviewing 3, Kirkus praised Hilden's "rather uncanny abilities." Hilden maintains a website at www.juliehilden.com that includes MP3 and text downloads of the novel's first chapter.

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