“Privacy Laws and First Amendment Content”

Professor Peter P. Swire

Ohio State University

John Marshall Symposium on

Copyright & Privacy Conference

November 18, 2004

The Question

Will “they” (content owners & govt.) know what “we” (users) read and say?

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

Good procedures should be, and quite possibly will be, created for future surveillance of content

Overview

Multiple statutes (long before P2P) create procedures and privacy protections for 1st Am content

Verizon v. RIAA was a victory for effective procedural protections

Reasons for privacy protections around use of 1st Am content:– U.S. tradition and understanding of the need– Importance of good procedures to limit abuse

by those seeking surveillance

I. The Statutory Precedents

Video Privacy Protection Act of 1988 Reporter got Bork’s rental records Law passed almost instantly The public choice explanation?

– Number of Senators who saw movies their constituents wouldn’t like

– (The same Congressional concern for their own records led to Gramm-Leach-Bliley privacy law)

Video Privacy’s Strict Rules

Opt in rule for sharing personally identifiable information

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”

Video Privacy’s Strict Rules

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”

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”

Cable Communications PrivacyAct of 1984

Roughly as strict as VPPA Annual notice to customers about PII Opt in (“prior written consent”) disclosure

for content of cable viewing Opt out for customer lists Liquidated damages for customers of

greater of $1000 or $100/day

Cable Privacy

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 entity’s claim”

The Content of Publishers

Privacy Protection Act of 1980 Enacted after Stanford v. Zurcher said no 4th Am

protections for access to records in office of Stanford student paper

Congress required full search warrants for records held by publishers, broadly defined

Perhaps the rules apply to web site publishers as well

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

Wiretaps and ECPA – What You Say, Hear, or Read

Content of telephone calls and e-mails has strict protections

Title III (1968), strict rules on wiretaps and bugs Electronic Communications Privacy Act of 1986, similar

rules for intercepting e-mails Stored Communications Act (1986), medium rules for

stored emails Much more lenient rules where no content, such as trap-

and-trace orders Also, Telecommunications Act of 1996, with CPNI rules

limiting private-sector sale of data

II. Bad Procedures under 512(h)

As declarant in Verizon v. RIAA, my concerns about the “new spam”:– Minimal showing to get subpoena– No protection against fraud

No lawyer signature (bar #) required 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

Verizon case

The D.C. Circuit decided to interpret on textual, statutory grounds

In my view, there were painfully weak procedural protections under 512(h)

The bad procedure made the threats to privacy and 1st Am values much larger

Those concerns made it much, much easier for the D.C. Circuit to hold as it did

III. Concluding Thoughts

For video, cable, publishers, phone calls & email:– Repeated and often strict statutory protections

against surveillance of 1st Am content– High standards for court orders– Prior notice to subscribers– Limits on burdensome discovery requests

against the intermediaries

Learning from the History

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 1st Am content is revealed to enforcers

Looking Ahead

As a matter of prescription:– Due process should be in place– Protections against fraudulent and abusive

enforcement should be in place 512(h) lacked those

– Innocent defendants should be able to win, without crushing costs

The Main Lessons from Today

“Privacy” as discussed here generally does not prevent the well-founded prosecution

Privacy protections are quite substantial, though, for sensitive 1st Am content

In the copyright wars, “privacy” protections often mean there should be due process before the intrusion occurs