Citing Right to Anonymity Online, ACLU Asks Boston Court to Block Recording Industry Subpoena

September 29, 2003 12:00 am

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BOSTON – The American Civil Liberties Union and a Boston law firm have asked a federal court to quash a recording industry subpoena filed against a local college student, saying that companies should not have the authority to strip Internet users of anonymity without allowing them to challenge the order in court.

The case is one of the first constitutional challenges to the controversial subpoena clause of the Digital Millennium Copyright Act (DMCA), which recording industry attorneys have reportedly used at least 1,500 times in recent months in an attempt to uncover the identities of Internet users who might be violating copyright law through the use of file sharing software.

“”We’re not saying the recording industry shouldn’t go after file sharers, only that they must do so in a way that’s fair,”” said Christopher Hansen, a senior staff attorney with the ACLU, which filed the lawsuit together with the ACLU of Massachusetts and the Boston law firm Prince, Lobel, Glovsky & Tye.

“”There are lots of reasons why people need anonymity online and why it should not be so easy to lose,”” Hansen explained. “”If the recording industry can uncover your identity simply by claiming that a copyright violation has occurred, then the Chinese government can use the same tool to find out the name of a dissident, and a batterer can use it to find out the address of a domestic violence shelter.”” For these reasons, among others, numerous courts have upheld the right to anonymity online in similar contexts.

The 20-page motion to quash was filed on behalf of an anonymous Boston College senior, “”Jane Doe,”” who was advised by her school that the Recording Industry Association of America (RIAA) had sent a subpoena seeking to uncover her identity.

“”The recording industry cannot simply demand our client’s identity without first complying with constitutional requirements,”” said Doe’s attorney David Plotkin of the Boston law firm Prince, Lobel, Glovsky & Tye. “”Our system mandates that people accused of wrongdoing, be it criminal violations or copyright infringement, be provided due process of law. That is all our client seeks here.””

Unlike a usual subpoena, which requires the filing of a case and some evidence to support the case, under the DMCA a subpoena must be issued by a court clerk without a case being filed or evidence submitted, Plotkin explained.

The ACLU and Jane Doe’s attorneys said in legal papers that the DMCA provision is “”totally lacking in procedural protections,”” making it “”an invitation to mistake and misuse.”” The attorneys cited numerous recent examples of mistaken subpoenas, including:

  • a 66-year-old retired schoolteacher from the Boston area who was wrongly accused by RIAA of downloading thousands of songs, including the works of the rapper Snoop Dogg;
  • an anonymous user who posted a child’s book report on “”Harry Potter and the Sorcerer’s Stone,”” prompting Warner Brothers to claim that the user had made the film of the same name available online and demand that an ISP terminate the user’s account;
  • an astronomer at Penn State, Peter Usher, whose name was linked to an online song about gamma rays, leading RIAA to mistakenly accuse the University’s Astronomy Department of unlawfully distributing songs by the pop singer Usher.

More examples of mistaken subpoenas are documented online at, one of numerous Web sites created to document the “”chilling effects”” of industry misuse of intellectual property law.

The Boston case is RIAA v. Boston College et al.; the motion in the lawsuit is online at /node/35303

Attorneys in the case are Hansen and Aden Fine of the national ACLU, Plotkin of the Boston law firm Prince, Lobel, Glovsky & Tye, and Sarah Wunsch of the ACLU of Massachusetts.

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