“I don't know if it's such a hot idea to have a court confined to California. You would still get a court full of activist judges, and a court that doesn't represent the whole of the state." - Retired Judge Robert Bork
Always interesting and never ceasing to befuddle legal scholars, another California Federal Judge is attempting to re-write the Federal Rules of Evidence by requiring a popular BitTorrent indexing Web Site to preserve and disclose information kept on its computers’ random access memory (“RAM”). California Federal Magistrate Judge Jacqueline Chooljian ruled that information found in RAM is “electronically stored information” and therefore subject to the rules of evidence. If upheld on appeal, the implications of this ruling could force companies to rewrite their privacy policies and cost millions to implement.
MPAA v. TorrentSpy
In February 2006, six movie studios brought a Federal copyright infringement suit against TorrentSpy, a Web Site that allows peer-to-peer (“P2P”) file sharing. The MPAA’s alleges that TorrentSpy directs its users to files which allow downloading of copyrighted videos. The MPAA further contends that TorrentSpy’s RAM data will show that TorrentSpy is used primarily for copyright infringement. When the MPAA accused TorrentSpy of wrongfully withholding its login user information, TorrentSpy objected arguing that such information was transitory and by RAM’s very nature, takes the form of integrated circuits without the physical movement of the storage medium or a physical reading head. Stated another way, once the server’s login function is shut off, the information is gone. Judge Chooljian justified her decision stating that the Server Log Data was relevant and that the information was already “stored” in the RAM. Judge Chooljian then backtracked and inserted her own disclaimer stating that her ruling does not mean that litigants in all cases are required to preserve and produce data that is temporarily stored in RAM. Despite her reluctance or lack of intent, Judge Chooljian is most likely creating legal precedent that will be used in future DMCA cases.
The Business Impact on a Company’s Privacy Policies
This is the first highly publicized case in which a judge held that RAM was discoverable. The ramifications of this ruling would require a company to store, collect and turn over RAM data every time a company was sued. Preservation letters would become the new form of legal intimidation along with a Digital Millennium Copyright Act (“DMCA”) notice. Businesses may have to significantly re-write their data privacy policies essentially stating that a customer’s information is private… as long as they don’t get sued. The economic cost, both in manpower and infrastructure, of collecting and storing RAM data could be significant regardless of a company’s size.
Scorched Earth: The DirecTV End User Shakedown Part Deux
Another practical concern for TorrentSpy is that if it is forced to disclose RAM data about its end users, then the end users will be sued by the MPAA as well. Earlier this decade, DirecTV sued thousands of its own customers who registered on a Web Site that sold smart card equipment. Because there was no way to tell whether or not the registered users merely browsed the Web Sites, which required its visitors to login, or actually bought and used the smart cards for illegal purposes, DirecTV took a scorched earth policy and sued everyone… and I mean everyone. DirecTV apparently knew that most Americans cannot afford an expensive Federal court battle.
History has proven to repeat itself. Once Judge Chooljian forces TorrentSpy to release its RAM data and login user information, the MPAA may sue TorrentSpy’s many end users. Any residual sense of trust by and between the TorrentSpy and its login visitors will be lost. TorrentSpy’s Internet traffic will drastically decline due to end user fear of retribution by the MPAA. TorrentSpy may be forced out of business. The MPAA, RIAA or another aggressive plaintiff with considerable resources, can and will litigate an Internet company out of business if it is determined enough. The lesson learned from DirecTV is that an individual login user can be guilty by association regardless of intent. Judge Chooljian’s disclaimer will not put the genie back in the bottle.
“Et tu, Brute?"
Moore’s law states that the number of transistors on a chip, hence technology, doubles every two years. Newton’s law of motion states that for every action there is an equal and opposite reaction. In this digital and information age, where technology doubles every 2 years, an equal and opposite reaction has been the exponential dissolution of privacy. Americans love their privacy. Customers want to know that their data privacy is secure. Likewise, companies want to reassure their login users that their information is safe. However, privacy is becoming nothing more than Platonic idealism. The American judicial system was once considered a stalwart institution that protected an individual’s right to privacy. Judge Chooljian’s ruling makes it clear that an end of an era is near and that society is one step closer to fulfilling Scott Nealy’s prophetic words, “Privacy is dead, deal with it.”