Legal woes mount for TorrentSpy

Hollywood studios win two important legal decisions, but privacy advocates say Internet users could be the real losers.

Hollywood has pounded TorrentSpy this past week, winning two important court decisions against the BitTorrent search engine that could hand the movie industry some powerful new tools in its fight against illegal file sharing.

But the Electronic Frontier Foundation, a proponent of strong privacy laws on the Web, has criticized the court findings and claim they pose serious threats to Internet users.

Last week, U.S. District Judge Florence-Marie Cooper threw out the lawsuit TorrentSpy brought against the Motion Picture Association of America last year for allegedly purchasing copies of private e-mails belonging to TorrentSpy executives. Robert Anderson, a former business associate of one of TorrentSpy's founders, acknowledged "hacking" into the company's e-mail systems and rigging it so he would receive a copy of all outgoing and incoming e-mail correspondence. He later sold the information to the MPAA for $15,000.

Yet, the theft of the e-mails did not violate the federal Wiretap Act, according to Cooper. Kevin Bankston, an EFF staff attorney, said Cooper misread the law.

"Not only does this open the door to privacy abuses in civil cases but it also could lead to abuses by the government."
--Kevin Bankston,
EFF staff attorney

"Essentially, one can do ongoing surveillance of another party's e-mails without their consent and not violate the law," Bankston said. "Not only does this open the door to privacy abuses in civil cases but it also could lead to abuses by the government...It's an incredibly dangerous decision."

An MPAA representative did not respond to requests for comment.

In TorrentSpy's other courtroom setback in recent days, Cooper denied an appeal that she overturn an earlier court order that required the company to log specific user information. A magistrate judge, in an unprecedented decision, ordered TorrentSpy in June to begin logging IP addresses found in a computer's temporary memory.

On Sunday, just ahead of Cooper's rejection, TorrentSpy announced that it would begin blocking U.S. residents' access to the site. TorrentSpy's executives had said for months that it would shut down in the U.S. rather than give up user data.

Here again, EFF says the judge's decision erodes the public's privacy protections.

Nancy Prager, a Washington, D.C.-based copyright attorney, agreed with the court's decision and said that copyright holders should be allowed access to information about people who may ripping them off.

"It's not about the users in this case," Prager said. "I'm all for Internet privacy, but basically the courts are saying companies aren't allowed to give users a free pass on acts that would be illegal or violate someone's rights."

The legal wrangling began last year when the MPAA first filed a copyright lawsuit against TorrentSpy, alleging that the company was violating copyright law by helping file sharers find pirated movies. The dispute escalated when TorrentSpy accused the MPAA of hiring a hacker to pilfer the company's trade secrets.

In her 12-page finding on the hacking issue, Cooper based part of her decision on how the law defines the word "intercept." She said that to violate the Wiretap Act, someone must intentionally intercept an e-mail, as opposed to acquiring from electronic storage. She interpreted the word intercept to mean "to stop, seize, or interrupt in progress before arrival."

The Wiretap Act is part of the Electronic Communications Privacy Act of 1986. Congress enacted the law to protect the privacy of electronic communications, and the law makes it illegal to "intentionally intercept any wire, oral or electronic communication."

Cooper wrote that because TorrentSpy stored e-mails on its server before they were copied and forwarded to Anderson's e-mail account, there was technically no interception.

"Anderson configured (TorrentSpy's) e-mail server software so that all (of the company's e-mails) were copied and forwarded from the server to his Google e-mail account," the judge wrote. "If the e-mails had not been stored on the server, Anderson would not have acquired copies of them."

Ira Rothken, TorrentSpy's attorney, said that Anderson snatched the e-mails simultaneously with the transmission of incoming and outgoing e-mails.

"We believe that for the Wiretap Act to have any meaning in the digital age," Rothken said, "it would have to apply to a situation like this."

Computer experts have pointed out that e-mails are held in RAM storage even before being sent from one user to another. EFF's Bankston argues that the judge's reading of the case makes it physically and legally impossible to intercept e-mail in a way that violates federal wiretap laws.

Rothken said the company plans to appeal Cooper's decision with the 9th U.S. Circuit Court of Appeals and he expects EFF to join the case as co-counsel.

"There is a split of authority across the United States on whether the wiretap statute applies to the interception of e-mails," Rothken said. "And we are optimistic that the 9th Circuit will provide in appropriate decision."

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