Since a blizzard of administrative subpoenas was unleashed in the wake of a June decision in the Verizon v. RIAA case, only SBC among major Internet service providers has refused to provide the names of their customers in response to administrative subpoenas that are vetted by no judge.

SBC has distinguished itself from BellSouth, Comcast, EarthLink, Time Warner Cable and Verizon, all of whom have been turning over consumer information to the RIAA since a ruling by U.S. Circuit Judge John Bates went into effect. The poorly-reasoned decision said the Digital Millennium Copyright Act (DMCA) required ISPs to disclose names of consumers who are accused of offering copyrighted files on peer-to-peer (P2P) file-sharing networks.

While the case is being appealed by Verizon, SBC subsidiary Pacific Bell has filed its own suit against the RIAA's tactics with the U.S. District Court in San Francisco. Undaunted by Bates' ruling, SBC told InternetNews.com, "These questions shouldn't be decided by private companies that operate without due diligence or judicial oversight."

The ruling in the case of Recording Industry Association of America (RIAA) vs. Verizon Communications, Inc. requires that Verizon turn over to the RIAA the names of subscribers to Verizon's broadband service whom the RIAA accuses of copyright infringement. This is simply an erroneous reading of the Digital Millennium Copyright Act (DMCA) and shows an utter disregard for the Fourth Amendment.

If Bates' ruling stands, the privacy of Internet users across the country will be under constant threat. That interpretation of the law

RIAA is seeking the names under a provision of the DMCA that mandates Internet service providers (ISPs) such as Verizon must name any subscriber who posts copyrighted material to the Internet on one of the ISP's computers (servers). Section 512 of the DMCA makes it clear that ISPs are not liable in any way for any content not stored on the servers of ISPs. The two persons at issue in the case before Judge Bates did not utilize Verizon's servers to store music files but offered songs to other Internet users by utilizing the peer-to-peer file-sharing software called Kazaa. On a P2P network, users connect directly to another computer's personal computer in order to upload or download a file. All the ISP does is provide the wires that go the PC user's home. Since the ISP does not host the files, they have no obligation to turn over the names. But Bates rejected this plain reading of the DMCA in favor of RIAA's pleadings. The Court of Appeals refused a stay of this ruling, indicating they are leaning toward the Bates misreading.

SBC's refusal to comply with the subpoenas, and part of Verizon's appeal, objects to the method for obtaining the consumer information names. Instead of having a subpoena or search warrant signed by a judge, all a potential plaintiff need do is tell a clerk of court that he/she/it has a "good faith" reason to believe someone with a certain Internet Protocol (IP) number is violating a copyright. (Every computer with a static broadband connection such as cable or DSL has a unique IP number. Consumers with a dial-up connection receive a different number from a block assigned to their ISP each time they connect.)

This is what makes the ruling especially pernicious to consumers of broadband services. If the Bates decision ultimately stands, virtually anyone -- from identity fraudsters, to stalkers, to politically-motivated activists or government agents -- can obtain someone's name and address with nothing more than the IP number.

Thus, Verizon and SBC argue that the administrative subpoena provision of the DMCA is unconstitutional - that any such subpoena should come as part of a court case, filed against a John Doe defendant, and signed by a judge. Judicial review is a key part of the checks and balances built into the constitutional system. Such judicial review is an incentive for copyright holders to refrain from trolling the web with inaccurate software programs ("bots") and issuing thousands of subpoenas without doing any research. A number of RIAA's subpoenas have been served on innocent parties in the past few months, including a grandmother who didn't even have a PC compatible with the Kazaa software she was said to be using to 'pirate' music. The regime pushed by RIAA and Bates would fail to keep more blatant ne'er-do-wells from abusing the automatic-subpoena "good faith" provision.

SBC laid out many of these points before the Congress last week. Both SBC and Verizon are to be commended for their legal battle on behalf of consumer privacy. SBC's continued refusal to comply in light of the DC District Court ruling is particularly heroic. It will be even more so if SBC continues this stand no matter what happens in the California court case.

by James Plummer

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