You Have The Right To Remain Anonymous?

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Here’s what EFF had to say about the Verizon ruling.

“EFF believes the DMCA subpoena provision endangers consumers’ privacy and is inconsistent with the constitutional right to anonymous speech.”

Huh? Oh, really? When did you ever watch a cop show and heard the policeman say, “You have the right to remain anonymous?”

In a sentence, that sums up the article. Yes, there is sometimes a right to speak anonymously, and sometimes a right to privacy. But as this article explains, if you’re downloading MP3ers or the like, none of that applies to you.

Constitutional Rights Are Analog, Not Digital

A lot of people have binary brains. It’s on or off, everything or nothing.

The US Constitution, the Bill of Rights doesn’t work this way. It can’t.

The reason why they can’t is that life isn’t that simple. Many times, these and other rights contradict each other, and it is up to courts to reconcile those contradictions and decide what has priority in a particular situation.

No right listed in the Bill of Rights is an absolute right. If you think so, then you just don’t know what you’re talking about.

Of all the rights enumerated in the Bill of Rights, those found in the First Amendment, freedom of speech and the press, is probably the most carefully guarded and protected. Yet even it is not absolute.

As one Chief of the Supreme Court once put it, “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

If there were an absolute right to free speech, there could not be any slander or libel or obscenity laws, but there sure are.

How can this be?

How This Actually Works…

Ed Stroligo

How This Actually Works

Here’s a good, if legalistic explanation of how courts view and determine First Amendment cases:

“it is well settled that the standard courts must use to determine the constitutionality of a law that is a content-based restriction on speech, is one of strict scrutiny. In addition, laws that restrict the content of speech are presumptively invalid. [FN15] To survive strict scrutiny, the government must show a legitimate, compelling interest or objective and that the law that they have in place is sufficiently tailored to achieve that legitimate interest in the least restrictive way. [FN16] If the law is overbroad or vague or there are other alternatives which will achieve the government’s objective and are less restrictive, the law will be declared unconstitutional.”

Put more simply, Bill of Rights protections are given a very high priority. You’d better have an awfully good reason to infringe upon them even a tiny little bit, and you’d better not infringe any more than is necessary for that awfully good reason.

Let’s see how this works in real life. If a Court gets one of these Internet-related cases, they’ll make it go through a few hoops.

Is This Even Speech?

If it isn’t speech, it isn’t covered by the First Amendment, so courts look at this first.

In recent cases, there’s been claims that programming is an act of free speech, and thus protected under the First Amendment. Courts have not swallowed this argument. Rather, they look at what programming does, and considered it an action rather than speech.

This is not to say you couldn’t come up with a program that is mainly an expression of speech, but if you write a crack, a court will quite properly put far more weight on what a crack does than what it “says.” Downloading an MP3 or warez is overwhelmingly an action, not speech. This is why warez people are in jail.

While some actions have been given the protection of free speech, by no means all are. You can burn a US flag, but you can’t burn a US government building or official. Both can have the same element of speech, but when actions significantly and adversely affect others, actions become more important than words.

It’s pretty hard to call downloading something you’re going to do something with talk rather than action. Especially when the something doesn’t belong to you.

How Bad Is This?

Breaking the law is usually a very good reason to toss First Amendment rights, but there are laws and then there are laws. If a town requires you to get a permit before going around trying to convert people to your religion, that isn’t and hasn’t been given the same weight as, say, theft or murder. If a generally accepted serious violation of the law is involved, the First (or for that matter the other) Amendments will do you little if any good.

The Supreme Court has repeatedly ruled that copyright infringement is not protected by the First Amendment. It’s considered a “serious” violation of the law.

Does The Law Throw Out the Baby With the Bathwater?

This is where governments usually trip up, and why courts rule their laws unconstitutional on First Amendment grounds. When the laws they pass are not focused on doing only what is necessary to remove the problem they are meant to stop, that’s where they get into trouble.

If Congress passed a law tomorrow saying that because there’s fraud and libel on the Internet, every American had to identify him- or herself by name on the Internet, the courts would rule such a law unconstitutional under the First Amendment in a blink of an eye. Not because the law presumes guilt rather than innocence, but rather because not being able to voice an opinion anonymously would deter a lot of legitimate free speech.

That does not at all mean you can’t have any law which compels people to reveal their identity. You certainly can, so long as the law is focused on only revealing people for whom there is good reason to believe have seriously broken the law.

From some of the emails I’ve gotten, there seems to be the impression that the Verizon decision means that anybody and everybody can force your ISP to tell you who you are just by filing a piece of paper. That’s not true at all.

First, this expedited procedure only applies to cases of copyright infringement. Second, an ISP can still challenge any subpoena they don’t think is up to snuff, just like they can challenge any other subpoena, and they’ll get their day in court.

In short, it’s not like an ISP has to treat a claim of copyright infringement from your ex-wife exactly the same way as they would a claim of copyright infringement from Sony.

Privacy Rights?…

Ed

Privacy Rights?

The “right to privacy” is a much weaker and more recent “right” than the First Amendment.

To some extent, it’s been around as stated in the Fourth Amendment. The Fourth Amendment doesn’t provide a general right to privacy, though. It only addresses one aspect of privacy, which involves the government going into your house.

Even there, it certainly doesn’t prohibit that from happening. It only prohibits “unreasonable searches and seizures.” What that means is that the government can’t go into your house just for the hell of it; they have to have good reason.

A lot of people think that means that nobody can snoop on anything they do on the Internet. Wrong. When you are on the Internet, the actions you take aren’t happening in your house, they’re happening outside your house.

While some Internet transactions can at least arguably be considered private, a P2P network certainly is not. It’s as public as Times Square, at least as far as the Constitution is concerned.

In short, if you can get into it, so can the RIAA (and, in general, those disclaimers you often see aren’t worth the phosphers they glow).

Much more recently, courts have presumed a more generalized right of privacy derived from the Ninth Amendment. This doctrine originated only in 1966, when Justice Brennan created it in deciding whether or not a state could prohibit birth control. It’s most famous application was to abortion in Roe v. Wade.

Again, though, it’s not an absolute right that trumps all others. For instance, Roe v. Wade does not say that all abortions are legal. In fact, it clearly points out the kinds of circumstances in which states can prohibit them. Again, it’s a matter of competing rights; at what point does the government have enough of an interest to override what you want to do.

Again, what is generally accepted as serious law-breaking behavior finds little to no shelter under “privacy rights.”

Conclusion, But…

Ed

Conclusion, But . . . .

You may think you have the right to anonymously download. The courts don’t. They don’t find it speech, they find it an illegal action, and even if they thought it was speech, so long as any law is aimed accurately enough at people doing illegal stuff, they couldn’t care less about your anonymity.

Based on the case as is, it is very unlikely that this court decision will be overturned. I’ve read through the decision; it’s solidly based on mainstream legal thinking.

The key words here is “as is.”

The problem is that all these fancy lawyers left something out of all their arguments. Something some of you caught.

Why Some of You Are Smarter Than All Those Lawyers

More than a few of you asked essentially, “How the hell was RIAA able to track this person?”

The answer is that RIAA is using bots “to monitor the Internet and detect unauthorized distribution of copyrighted material.” So that’s how they’re doing it.

Some of you think that’s illegal, or that violates some “privacy” rights you think you have. The short answer to that is that if the public has access to it, so does RIAA. P2P networks are as public as Times Square under the law.

At least one of you said, “What about IP spoofing?”

Yes, what about IP spoofing?

That person did more and better thinking in one short email than all the defense lawyers combined on this case. They were too busy with BS constitutional arguments to even bring that up.

Nobody brought up the point that the RIAA bots might not be infallible, or that they possibly could be fooled.

This may not have been terribly relevant to this particular case, or changed this particular decision, but hanging the wrong guy is a helluva better legal argument than anything those lawyers tried. Not like it was an either/or, they could have thrown that in, too.

If nothing else, if the judge had been made to address that point, even if only to say, “Let Congress deal with that,” it would have addressed a potentially serious flaw in the system.

If nothing else, it would have put Congress on notice that maybe they need to revise the law a little, or look into how these bots work.

Unfortunately, appeal courts aren’t normally open to new arguments; their job is to review the lower court’s case, not retry it.

This argument will likely have to await a different case.

It’s a shame those lawyers had their heads so much in the clouds that they didn’t see their best argument (if not for this case, than in general) lying at their feet.

Ed

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