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STLR Link Roundup – February 27, 2013

Copyright Alert: ISPs Join the Fight

This week marks the launch of the Copyright Alert System, a cooperative effort between internet service providers and content owners to proactively limit piracy and file-sharing  via peer-to-peer networks like BitTorrent. A beefed-up version of the three-strike system that universities like Stanford are internally implementing to protect their own users from the legal consequences of illegal file-sharing, the system involves content owners sharing offending IP addresses with service providers when they detect illegal file sharing. The ISP then warns allegedly offending users of the infraction using a “six-strike” system of ramifications increasing in severity – from warning emails and educational videos to throttling network speeds or blocking certain websites.

Though some groups advocating for internet liberty equate the measure to spying and a violation of due process, it is worth noting that this initiative is not a government organization, nor do ISPs actually spy on their users. Instead, content owners monitor public peer-to-peer traffic as they already do, and ISPs simply claim to engage their users before content owners resort to litigation. An internal appeal process allows users to clear their name if they contend the infraction – but with a controversial $35 filing fee attached. Despite the pundit tumult, though, detection by the system is relatively easy to avoid, lending credence to ISPs who play down the initiative as merely a deterrent to the public at large, not a crackdown on actual pirates. A final word of warning to downloaders, though, is that this private initiative does not necessarily reduce the threat of actual DMCA-backed lawsuits. Groups on the sidelines anxiously await the system’s rollout for now.


Is Google Still a Gentle Giant?

Google has had to walk a fine line lately; its struggles highlight the balancing act that large information companies must conduct with regard to expression and privacy. On one hand, the Silicon Valley behemoth inspired cheers from freedom-of-information activists when it decided not to comply with an order from the Spanish Data Authority to remove links to public websites from its search results. The case began when a Spanish citizen, through a Google search, found public legal records about himself online. A Spanish court ordered Google to remove the links; Google, throughout the appeals process, has insisted that its search results merely link to publicly and legally available sites and that it cannot play a role in removing content that the publisher controls.

On the other hand, privacy advocates must have raised a brow when the European Union’s Data Protection Authorities will vote on possible legal action against Google in response to what it sees as violations of European privacy laws. Google has denied the Authorities’ allegations, perhaps because the Authorities have limited enforcement capabilities even if they successfully pursue Google in court (potential fines total only several hundred thousand dollars). Pundits at Wired, however, foresee a result where new rules passed by the European Parliament would dramatically increase the fines they can impose on Google in 2014, to over $1 billion. If the Data Protection Authorities continue to challenge the boys at Mountain View, they very well deal a significant blow to Google when their enforcement powers are scaled up.

Meanwhile, Google is still hashing out a deal with the European Union over a different antitrust investigation. It appears Europe is where Google’s users and competitors have chosen their battlegrounds; it remains to be seen where the once-noble search giant will go from here.


Warrantless Surveillance and the Catch-22 of Establishing Standing

Opponents of government surveillance were reeling Tuesday from a Supreme Court decision that blocked a challenge to government surveillance. A 5-4 majority of the high court ruled that journalist plaintiffs and the ACLU lacked standing to challenge  the constitutionality of §1881 of the Foreign Intelligence Surveillance Act (FISA), enacted in 2008 and extended in 2012. The law legalized the Bush-era wiretap programs begun shortly after terrorist attacks on September 11th, 2001. Though the program has been challenged in several appellate circuits, it reached the Supreme Court for the first time this term. The ACLU brought the case on behalf of journalists and lawyers on the basis that their communications had probably been subject to government wiretapping at some time without a warrant.

Unfortunately for the plaintiffs, the majority, in an opinion written by Justice Samuel Alito, held that the plaintiffs lacked standing because they had not shown that the alleged harms were not speculative. In other words, the plaintiffs could not prove that the government was likely to wiretap their communications– mostly because in lieu of warrants, government surveillance plans are instead approved by the Foreign Intelligence Surveillance Court, a single-purpose court that operates in secret. The Court’s concerns are valid – a sufficiently low bar for standing would bring intelligence operations to a grinding halt. However, the dissenting justices charge that the Court’s refusal to grant standing based even on “probable injury” bars plaintiffs from bringing a case even when it is virtually certain the government has conducted surveillance, simply because the program by design will never reveal whether the surveillance operation actually exists.

While civil liberty groups were hoping to pick apart the FISA Amendments Act using the Fourth Amendment, it appears this Court may never broach the subject of its constitutionality unless one day the government accidentally reveals its secret programs. And in the 9th Circuit, it appears that sovereign immunity would shield the government from liability even in that unlikely scenario. Joseph Heller would be proud.


About the Author

Tony Ortega

Tony Ortega is a Staffer for the Columbia Science and Technology Law Review. He is a 2L at Columbia Law School.
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