1. Privacy Laws and First Amendment Content Professor Peter P. Swire Ohio State University John Marshall Symposium on Copyright & Privacy Conference November 18, 2004

2. The Question n Will they (content owners & govt.) know what we (users) read and say? n Answer: a robust history of legislatures limiting privacy problems concerning First Amendment content, for both: – What a person says/writes – What a person reads/views n Good procedures should be, and quite possibly will be, created for future surveillance of content

3. Overview n Multiple statutes (long before P2P) create procedures and privacy protections for 1 st Am content n Verizon v. RIAA was a victory for effective procedural protections n Reasons for privacy protections around use of 1 st Am content: – U.S. tradition and understanding of the need – Importance of good procedures to limit abuse by those seeking surveillance

4. I. The Statutory Precedents Video Privacy Protection Act of 1988 n Reporter got Borks rental records n Law passed almost instantly n The public choice explanation? – Number of Senators who saw movies their constituents wouldnt like – (The same Congressional concern for their own records led to Gramm-Leach-Bliley privacy law)

5. Video Privacys Strict Rules n Opt in rule for sharing personally identifiable information n Court orders shall issue only with prior notice to the consumer and only if the law enforcement agency shows that there is probable cause to believe that the records or other information sought are relevant to a legitimate law enforcement inquiry

6. Video Privacys Strict Rules n Court may quash or modify such order if the information or records requested are unreasonably voluminous in nature or if compliance with such order otherwise would cause an unreasonable burden on such [video] provider n Suppression rule: Personally identifiable information obtained in any manner other than as provided in this section shall not be received in evidence in any trial, hearing, arbitration, or other proceeding

7. Cable Communications Privacy Act of 1984 n Roughly as strict as VPPA n Annual notice to customers about PII n Opt in (prior written consent) disclosure for content of cable viewing n Opt out for customer lists n Liquidated damages for customers of greater of $1000 or $100/day

8. Cable Privacy n Court orders only if: – clear and convincing evidence that the subject of the information is reasonably suspected of engaging in criminal activity and that the information sought would be material evidence in the case and – the subject of the information is afforded the opportunity to appear and contest such entitys claim

9. The Content of Publishers n Privacy Protection Act of 1980 n Enacted after Stanford v. Zurcher said no 4 th Am protections for access to records in office of Stanford student paper n Congress required full search warrants for records held by publishers, broadly defined n Perhaps the rules apply to web site publishers as well

10. Privacy Protection Act Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication Government must get a search warrant, which is relatively strict, before enforcing IP laws

11. Wiretaps and ECPA – What You Say, Hear, or Read n Content of telephone calls and e-mails has strict protections n Title III (1968), strict rules on wiretaps and bugs n Electronic Communications Privacy Act of 1986, similar rules for intercepting e-mails n Stored Communications Act (1986), medium rules for stored emails n Much more lenient rules where no content, such as trap-and-trace orders n Also, Telecommunications Act of 1996, with CPNI rules limiting private-sector sale of data

12. II. Bad Procedures under 512(h) n As declarant in Verizon v. RIAA, my concerns about the new spam: – Minimal showing to get subpoena – No protection against fraud n No lawyer signature (bar #) required n Information could be sent to a P.O. box – Could turn any IP address into name, address, & phone number – Trivially easy for any web site – porn, marketing, etc. -- to end anonymous surfing

13. Verizon case n The D.C. Circuit decided to interpret on textual, statutory grounds n In my view, there were painfully weak procedural protections under 512(h) n The bad procedure made the threats to privacy and 1 st Am values much larger n Those concerns made it much, much easier for the D.C. Circuit to hold as it did

14. III. Concluding Thoughts For video, cable, publishers, phone calls & email: – Repeated and often strict statutory protections against surveillance of 1 st Am content – High standards for court orders – Prior notice to subscribers – Limits on burdensome discovery requests against the intermediaries

15. Learning from the History n As a matter of description or prediction: – We see a striking and often overlooked pattern of protection in U.S. law – Remember that the behavior of members of Congress is also subject to disclosure – Quite possible will have significant privacy and procedural protections before 1 st Am content is revealed to enforcers

16. Looking Ahead n As a matter of prescription: – Due process should be in place – Protections against fraudulent and abusive enforcement should be in place n 512(h) lacked those – Innocent defendants should be able to win, without crushing costs

17. The Main Lessons from Today n Privacy as discussed here generally does not prevent the well-founded prosecution n Privacy protections are quite substantial, though, for sensitive 1 st Am content n In the copyright wars, privacy protections often mean there should be due process before the intrusion occurs