Government Access to Digital Data


In light of the recent ruling that there’s no expectation of privacy in information transmitted over a wireless router, many people may be wondering how other online information is treated under the law. Techdirt recently posted a link to a useful Pro Publica guide to digital data and accessibility by law enforcement.*

This guide discusses popular digital data types, such as phone records, cell phone location information, IP addresses, emails and text messages.  Obtaining IP address information has been a key aspect in many of the recent BitTorrent lawsuits.

As the guide explains, many of these types of information can be collected by law enforcement with only a subpoena, rather than a warrant. The standard for granting a subpoena is lower than that required to get a warrant, thus making the information easier for law enforcement to access. To obtain a warrant, the police must show that they have probable cause to search or seize evidence. A hunch that evidence may be found is not enough—the police have to establish that evidence of a crime will probably be found. By contrast, a subpoena requires only a reasonable probability that the materials sought will produce information that is relevant to the general investigation.

A subpoena is a legal document that generally requires the recipient to turn over the information specified at a future date, which is also specified in the document. The recipient may be directed to provide information about himself or about third persons, such as when ISPs receive subpoenas directing them to turn over subscriber information. If you receive a subpoena from your ISP, it is a good idea to contact an attorney to discuss your options.

*We provide these links for general informational purposes only. We make no claims about whether the guide’s contents are legally correct, or suitable for your particular circumstances. Neither the guide linked to nor the contents of this blog are legal advice. You should obtain legal advice from a licensed attorney regarding your own unique circumstances.

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Cease and Desist…or buy a license?


Copyright enforcement doesn’t always come in the form of a subpoena notice from an ISP. Often, copyright holders will send alleged infringers a cease and desist letter, indicating that they believe their rights are being infringed, and requesting that the activity stop, without communicating any demand for payment. This invites an opportunity for discussion and negotiation without the hostility often linked to lawsuits. If negotiation in response to the cease and desist letter fails, copyright holders typically then file a lawsuit. This course of action allows for some disputes to be resolved prior to litigation—thereby saving tons of time and reducing (or eliminating) the expenses associated with a full lawsuit.

However, not everyone follows this path—some companies, like Getty Images, have been skipping the cease and desist letters entirely, and simply sending demand letters and threats of lawsuits. These large-scale copyright holders seem to be taking evidence of potential infringement and using it as part of an enforcement-based business model.

Others have been taking a different tack, and treat alleged infringers as potential licensees. Dreamline, a stock photo website, sends alleged infringers a cease and desist letter that also includes the option of obtaining a license, for as little as $8, so that the alleged infringer can continue using the copyrighted image legally. The company’s CEO said that this model has been successful for them, and often leads to purchases of larger licenses. This route may be cheaper in the long-run for people who receive the letters.

No matter what the pattern, those who receive letters alleging copyright infringement should contact an attorney knowledgeable in copyright law to look into the validity of the claim, and make sure that they are informed about all of their available options.

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Unsecured Wifi: Nothing is Truly Private


A Pennsylvania judge recently affirmed that a person connecting to another’s unsecured wifi does not have an expectation of privacy in that wireless connection. The defendant, who was suspected of downloading child pornography, challenged the police’s use of a tracking tool called “Moocherhunter,” which identifies the geo-location of hackers and individuals who “mooch” on the wireless connections of others.

The defendant lived across the street from the owner of the wireless router, connected to that wireless router, and downloaded child pornography. With proper warrants, the police searched the computers belonging to the owner of the wireless router, and discovered that the owner was not the responsible party. Using “Moocherhuner,” the police were able to find the defendant, who was in possession of child pornography. The defendant objected to the police’s use of Moocherhunter on the grounds that it was an unreasonable search and seizure, as it was conducted without a warrant. However, the judge ruled that there was no search under 4th amendment law because the defendant voluntarily shared information with a third party (the owner of the wireless router), and that he had no expectation of privacy in signals sent from his computer to the wireless router.

While the issue of expectation of privacy may seem new in the context of wireless routers, the concept has strong roots in criminal law and the 4th amendment law. The 4th Amendment protects against unreasonable search and seizure, and many cases have dealt with what constitutes a “search” and what kind of searches are “unreasonable.” At bottom, an action by the police is not a “search” for 4th Amendment purposes when the person searched (the accused) has no reasonable expectation of privacy in that information or the means by which the information was transmitted. Generally, a person has no expectation of privacy in information that he or she gives to a third party—instead, they assume the risk that the third party may share that information with others.

It is always a good idea to take care with what information people transmit through the Internet, but especially so in light of the recent confirmation of this principle—that you have no expectation of privacy in information shared over a wireless connection. Remember, nothing is truly private.

For owners of wireless routers, it may be wise to use a strong password to secure those routers. While it is still possible for sophisticated hackers to hack into the router, this may prevent others people from accessing your wireless, whether it is for something innocuous, like streaming Netflix, or something illegal, like downloading child pornography.

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“6 strikes” Copyright Alert System to go into effect in 2013


Early next year, five major Internet Service Providers (ISPs) will roll out the implementation of the “6 strikes” plan. The “six strikes” plan, or Copyright Alert System (CAS), is the result of a private-party agreement between five major ISPs (AT&T, Cablevision, Comcast, Time Warner, and Verizon) and the MPAA and RIAA. Last summer, the agreement created the Center for Copyright Information (CCI), which will administer the program.

Put simply, this is a way for ISPs to privately take charge of copyright enforcement.

The creation of the CCI and the Copyright Alert System comes on the heels of the demise of SOPA and PIPA, two pieces of legislation that were aimed at increasing government power for the purpose of combating copyright violators. Both SOPA and PIPA were met with huge backlash on the Internet, including an Internet blackout on January 18, 2012 in protest of SOPA which included such participants as Wikipedia, Reddit, and Google.

CCI bills the Copyright Alert program as educational, and that the alerts are designed “help subscribers understand the significance of protecting copyright in the digital environment, to advise them about the importance of avoiding inadvertent or intentional online distribution of copyrighted content, and to suggest legal ways to obtain digital content.” The alerts only apply to peer-to-peer file sharing activity.

Alerts come in three phases: (1) notifications; (2) acknowledgments; and (3) mitigation. During the first phase, subscribers will send educational materials along with the notice that that the account may have been misused for potentially illegal file sharing. Acknowledgement notices will “reinforce the seriousness of copyright violations,” and will include information on “how to address the activity.” In the final phase, the ISP may take mitigation measures, including temporarily reducing the speed of the subscriber’s internet, redirecting internet pages to a page that requires the subscriber to contact the ISP or to educational materials about copyright—and any other measures that the ISP deems necessary.

Each ISP will have its own system of notices, though the first notice is “educational” in nature. CCI is adamant that termination of a subscriber’s account is not required under the alert system. However, it is important to note that termination of service is not expressly prohibited, either.

The CCI has developed an independent review of the copyright alerts that will be operated by the America Arbitration Association. Any subscriber can request an independent review after receiving an alert, but before any mitigation measures have been taken. The filing fee is $35, which can be waived by the AAA. Review by the AAA is non-exclusive, and subscribers are free to challenge any action in a court of law.

Initially, the CCI planned on implementing the alert system in the end of 2012. However, on Nov. 28, the organization announced that implementation would be pushed back to early 2013, “[d]ue to unexpected factors largely stemming from Hurricane Sandy which have seriously affected our final testing schedules.”

To obtain legal advice as to whether you should provide a counter-notice to DMCA notices you have received, contact the copyright attorneys at Antonelli Law.

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