Some universities are balking at stepped up demands from the recording industry to unmask alleged student file swappers, citing procedural uncertainties over an avalanche of subpoenas filed with the courts in recent weeks.
Boston College and the Massachusetts Institute of Technology on Tuesday said they are barred from immediately handing over the names of students to the recording industry by the Family Education Rights and Privacy Act, which requires institutions to notify students before releasing any personal data.
Both schools said they were opposing the subpoenas on procedural grounds, rather than contesting the RIAA's right to the information. As a result, the refusals could further delay--but are unlikely to derail--the recording industry's efforts toand ultimately file suit against them.
"MIT of course has a policy of complying with lawfully issued subpoenas," said professor James Bruce, vice president for information systems at MIT, in a statement. "In this case we have been advised by counsel that the subpoena was not in compliance with the court rules that apply to these subpoenas, and did not allow MIT time to send any notice as the law requires."
The Recording Industry of America (RIAA) has filed close to 1,000 subpoenas in the U.S. District Court in Washington this month requesting information from educational institutions and Internet service providers (ISPs) on users of Kazaa, the peer-to-peer file-sharing service. The group issued the requests as part of its continuing effort to crack down on individuals using the Internet to illegally distribute copyrighted music.
The RIAA has already won a key court decision upholding its right to use the subpoenas, which take advantage of a controversial fast-track provision that allows copyright holders to obtain information about alleged infringers without first filing a lawsuit. That decision, whichaccused of swapping copyrighted works on Kazaa, vastly simplified the RIAA's investigations and effectively opened the subpoena floodgates.
ISPs, schools and file swappers themselves are scrambling to figure out just how much legal space they have to contest the stream of requests, which is testing new areas of law.
MIT reported it filed a motion in the United States District Court for the District of Massachusetts asking how it should proceed in light of the subpoenas and requirements of the Family Education Rights and Privacy Act. The school was careful to indicate in its statement that the refusal does not represent MIT taking any position in the war between the RIAA and users of peer-to-peer file-sharing sites such as Kazaa.
Boston College also said it was acting on procedural grounds.
"The subpoenas issued by the RIAA were issued from the wrong court under the Federal Rules of Civil Procedure and did not provide us with adequate time to notify the students," Boston College spokesman Jack Dunn said. "We are opposing the subpoenas, not in an effort to protect students from the consequences of copyright infringement, but rather to establish the proper procedures to be followed in the future."
An RIAA spokesman would not elaborate how the group would react to the two school's refusal to provide student information, but he said the RIAA would continue to issue similar subpoenas when merited as it continues to gather evidence against people. He said the RIAA expects lawsuits to begin being filed in Washington by late August or early September.
"No one should be surprised by any of this, as we've given fair warning that we would be collecting information on individuals who continued to distribute copyrighted materials," the RIAA spokesman said.
Unfamiliar legal ground
Privacy expert Peter Gregory, principal in Seattle-based HartGregory Group, said it remains to be seen how the Family Education Rights and Privacy Act might stand up in court against a subpoena, should the universities fight to keep the identities of their students hidden. According to Gregory, the current privacy-friendly atmosphere in the United States might favor the schools in the short term, but he warned at some point educational institutions will likely be forced to claim greater responsibility for the manner in which their computer networks are used.
"For a number of years universities have been reluctant to keep a closer eye on how their networks are used in the name of allowing education and experimentation without censorship," Gregory said. "Sooner or later someone is going to push hard to make the schools more accountable, and if there is evidence that a university had knowledge of illegal activity, you will potentially see them held liable."The flowing from the RIAA's legal team over the past few weeks has put unaccustomed pressure on the court system and on the ISP's legal teams responding to the requests.
According to the federal circuit court, which is serving as a clearinghouse for all the RIAA subpoenas, regardless of the location of the target, 871 had been filed by the close of last week. The office is expecting about 300 more per week for the next six months, based on information given to it by the recording industry group.
The association has said it is not favoring particular service providers, but to date the numbers received vary substantially between service providers. As of Monday, EarthLink said it had received 14 subpoenas--including 10 in a single day late last week--while Verizon alone had received close to 150.
For the most part, traditional ISPs said they believe they are bound by the federal appeals court decision in April, which denied Verizon's initial attempt to on constitutional grounds. However, they are still looking for room to maneuver within the framework laid down by the court, and are opening the possibility for their subscribers to challenge the subpoenas.
Many of the big ISPs, including Verizon, America Online and EarthLink, said their policy upon receiving civil subpoenas is to notify subscribers involved immediately, and give them the opportunity to try to quash or contest the subpoenas.
That takes time, however--and that's part of the tension ongoing with the RIAA subpoenas.
In the procedure established for traditional civil cases such as defamation, an ISP has 14 days to respond to a subpoena for subscriber information. During that two-week period, many service providers communicate with the targeted subscriber, allowing them time to find an attorney and fight the request, if necessary.
The RIAA subpoenas are a different beast, however. Unlike with ordinary subpoenas, they are not associated with a specific legal case, since no case has been filed. No time frame for the ISP's response was set down either by Congress or by the judge in the Verizon case. In their initial requests, the RIAA asked for the information in just six days, although the group subsequently extended that.
"I would argue that is not sufficient time," said Sarah Deutsch, vice president for Verizon. "There has to be time for (a person) to find counsel and defend themselves."
The RIAA has disputed this view, saying that this round of subpoenas is simply a request for information from ISPs, which service providers are legally mandated to comply with, and that there is no reason for the subscribers to get involved at all.
Civil libertarians, however, are eager for a chance to help file swappers or ISPs targeted by the RIAA subpoenas fight them.
The Electronic Frontier Foundation has set up the Subpoena Defense Alliance to help targets of the RIAA dragnet find legal counsel quickly.
Fred von Lohmann, an EFF attorney who has worked on several file-swapping lawsuits, said that his group would be happy to help an ISP subscriber who feels he or she has been wrongly targeted by an RIAA's subpoena try to contest the information summons. In several cases, the recording group has sent warning letters to people who were offering, he noted.
It's possible for lawyers to shield their identity of their client in court while fighting a subpoena for identifying information, von Lohmann said.
The skirmishing beginning as a result of the stream of subpoenas still marks the early stages of this legal fight. Many if not all of the subpoena requests, which will ultimately number in the thousands, will result in lawsuits aimed at people accused of trading copyrighted files online, raising the stakes yet again.