Minnesota Judges Refuse To Unmask Defendants For Copyright Troll Strike 3

from the about-time dept

With copyright trolling a business model in full force across the world, we've noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of "evidence" at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed.

And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3.

Late last month, Magistrate Judge Franklin Noel denied such a discovery motion. As a result, Strike 3 is not allowed to ask the ISP, Comcast in this case, for the personal details of the account holder associated with the IP-address.

According to Judge Noel, these cases present a conflict between the copyright protections of the DMCA on the one hand and the privacy rights of the public as set out in the Communications Act. Here, the scale tips in the favour of the latter.

Frankly, this reasoning should be plainly obvious. A copyright holder marching to an ISP with an IP address that does not pertain to an individual ought not be able to unmask that individual using such faulty evidence. It's long past time that the courts wise up to this and begin taking seriously the rights and interests of the public to not have private third party companies be able to associate them with their online activity.

But this wasn't a one-off. Another court looked at Noel's ruling and decided it was sound.

Last week Magistrate Judge David Schultz cited the ruling in two similar cases, also filed by Strike 3. Again, the subpoena requests were denied to secure the privacy of the alleged BitTorrent pirates.

“From this Court’s perspective there are obvious tensions between DMCA, the Communications Act, and Federal Rule of Civil Procedure 45,” Schultz’s orders read.

“The Court is not unsympathetic to Plaintiff’s need to discover the actual identity of the infringer of its copyright; however, the discovery sought by Plaintiff through a Rule 45 subpoena directly collides with federal privacy protections.”

If this becomes a trend, what will be most interesting about it is that nothing in the laws in question has changed. Such a trend would represent instead an evolution of legal thought by judges on the practices of copyright trolls. It may also represent better informed defendants and ISPs that are aware of how shitty all of this is and also more aware of their respective rights in the law.

To be sure, a couple of rulings is no cause to rest easy. The vast majority of copyright trolling efforts succeed in at least getting this sort of customer information. Still, hopefully other courts will take notice of these rulings and agree that they should not be rubberstamp stops on the way to violating consumer privacy.

Filed Under: copyright, copyright trolling, david schultz, dmca, franklin noel, magistrate judges, privacy, sca
Companies: strike 3

Snuffing Out The Magistrate's Revolt: DC District Court Judge Roberts Grants Another Rejected Warrant Application

from the 'I-concur-with-my-own-finding-that-this-complies-with-the-4th-Amendment' dept

As we've been covering for the past few months, there seems to be an emboldened set of magistrate judges willing to push back against broad electronic search requests by the government. While it would be nice to see a stronger pushback originate somewhere closer to the top, it is (or was, it seems...) refreshing to see those on the lower rungs defend citizens' rights by rejecting what can only be termed "general warrants," the very thing that prompted the Fourth Amendment in the first place.

But it appears the rest of the judicial system is more interested in quelling what Scott Greenfield has memorably termed the "Magistrates' Revolt." As was noted here back in May, a DC district court judge overrode DC Magistrate John Facciola's refusal to bury a subpoena to Twitter under a gag order (Facciola actually went one step further and invited Twitter to respond in court). Judge Richard Roberts allowed the burial, utilizing a lot of "government knows best" rationale, even while pointing out the government was using the wrong venue to attempt an appeal of a magistrate's decision.

Another Facciola refusal, one that had twice crossed his desk has now been overridden as well. This warrant application -- seeking the entire contents of a person's .mac email account -- was summarized (twice) by Facciola as being "overly broad" for making no attempt to balance law enforcement interests with the expectation of privacy inherent to electronic communications.

The DOJ again appealed this decision and got the same judge -- Richard Roberts -- it got last time. And in spite of his earlier admonishment that the district court does not act as the appellate level for magistrate court decisions (a "mistake" the DOJ has made twice -- involving the same two judges and pointed out in the decision with the exact same footnote), Roberts again found that the government should generally be deferred to because it "knows best."

With very little preamble, Roberts announces that rules were followed and everything is on the level, but in the next 20 pages raises very few questions about the application of these rules to this specific situation, much less the digital reality of everyday life.

Because the government’s application complies with the Fourth Amendment and the specific procedures for executing the warrant are permissible under Federal Rule of Criminal Procedure 41 and controlling case law, the magistrate judge’s order will be vacated, and the government’s application for a search warrant will be granted.

Just simply saying something "complies with the Fourth Amendment" doesn't magically make it so. Judge Facciola saw the same warrant application (twice) and came to a completely opposite conclusion. There's probably some middle ground that allows the DOJ to pursue this, but it's highly unlikely that Roberts (and the DOJ) are 100% right and Facciola is 100% wrong when it comes to the Fourth Amendment.

But Roberts is more of a business-as-usual judge. And business had gone on pretty much uninterrupted until recent months. When laying out the background of the case, Roberts nods to the Stored Communications Act, a particularly bad law that combines the worst parts of the Third Party Doctrine with being nearly out-of-date by the time it was codified in 1986.

As Roberts notes, the government did scale back its request after its first rejection, but only from "all email ever" to "all email from Jan. 14, 2014 going forward." While the government listed more specifics about its search and minimization efforts, Facciola still felt the DOJ was asking for more than it needed to achieve its aims.

While Facciola argued that the old way (grab everything and dig through it later) just doesn't mesh with the reality of the situation in terms of upholding the Fourth Amendment, Judge Roberts finds no issues with the government using warrants to engage in fishing expeditions.

Several courts have found the two-step procedure to be reasonable under the Fourth Amendment, provided that there is a valid warrant supported by probable cause. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (upholding government’s seizure of electronic data for a subsequent offsite search where there was a fair probability that evidence would be found on the defendant’s personal computer and other electronic devices); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) (6th Cir. 2012) (“The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a ‘sufficient chance of finding some needles in the computer haystack.’” (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999))).

And who does Roberts rely on to ensure that not too "haystack" is idly thumbed through during the search for "needles?" The government itself, the most trustworthy of the participants, at least in this judge's eyes. Roberts says the judicial system plays an important part in weighing the balance between the government's desires and personal privacy, but then states that if anything gets abused, it can always be fixed after the damage is done.

As the government argues in its challenge, law enforcement officers are provided with considerable discretion in determining how to execute a particular search warrant. The Supreme Court has explained that a search warrant’s execution is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant[.]” Dalia, 441 U.S. at 257.

That said, although law enforcement officers are afforded wide discretion in executing search warrants, “the manner in which a warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258; see also Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978). Accordingly, the government will be afforded deference in deciding how to execute the search warrant, subject to later review by a court to determine whether the search complied with the Fourth Amendment’s reasonableness requirement.

So, everything's fine. The government can be trusted to only look at the stuff it's supposed to (even though it has access to plenty it doesn't need), and if it proves unworthy of that trust, the person whose rights have been violated can sleep well knowing a "later review" by the court will ensure no such abuse happens ever again. Until the next time.

Filed Under: 4th amendment, doj, john facciola, magistrate judges, richard roberts, warrants

Magistrate Judges Emboldened By Snowden, Pushing Back On Overly Broad DOJ Requests

from the good-for-them dept

A couple weeks ago, we wrote about how the judiciary was finally pushing back on overly broad and vague warrant requests from the DOJ, with magistrate judge John Facciola leading the way. That was based on a Wall Street Journal article highlighting how magistrate judges like Facciola and David Waxse have been pushing back much more regularly on requests. The Washington Post has now written a very similar article (though, like most stuck up mainstream publications, it never mentions the WSJ article that beat it to the punch) that is worth reading as well. While it repeats much of the same story from the WSJ one, it also adds some interesting details. The basic story is basically the same. Facciola and others have been pushing back steadily on requests:

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

The article also notes that it's very likely that the Ed Snowden revelations have played a big role in the sudden uptick in magistrate judges pushing back:

The seeds of what legal observers have dubbed “the Magistrates’ Revolt” date back several years, but it has gained power amid mounting public anger about government surveillance capabilities revealed by former National Security Agency contractor Edward Snowden. Judges have been especially sensitive to backlash over the Foreign Intelligence Surveillance Court, which made secret rulings key to the growth of the surveillance programs.

A lawyer quoted in the article notes that the judges are now realizing that if they approve a bogus warrant, which later becomes public, it may now become an embarrassment:

“There’s a newfound liberation to scrutinize more carefully,” said Albert Gidari Jr., a partner at Perkins Coie who represents technology and telecommunications companies. “They also don’t want to be the ones who approve an order that later becomes public and embarrassing. . . . Nobody likes to be characterized as a rubber stamp.”

Of course, the inference there is depressing, if unsurprising. Back when they could work in relative secrecy, judges were a lot more willing to just go along with law enforcement. We've been saying since the beginning that transparency, sunlight and accountability are important components in maintaining the Constitution, and this newfound backbone from the judiciary certainly seems to suggest that's true. It also shows just how far-reaching the impact of Snowden's actions have been. It's not just about the NSA, but it's priming the key folks who make the federal judiciary function, the magistrate judges, sit up and pay more attention.

The other tidbit of information, is that the magistrate judges apparently all have a mailing list where they discuss some of this stuff, suggesting that this growing "revolt" (if you can call actually following the Constitution a "revolt") may continue to spread:

Magistrate judges, who do much of the routine work of the criminal justice system, influence each other through conversations at judicial conferences and through the federal e-mail system, which allows any magistrate judge to query all others on a vexing legal question with a single click of the mouse.

Perhaps even more interesting is that one of the magistrate judges handling these issues has even designed a joke t-shirt that he sends to any judges who have to rule on warrants concerning mobile phone information:

Tackling such issues, even in the face of possible reversal by higher courts, has become something of a badge of honor among some magistrates. Judge James Orenstein of Brooklyn, a former federal prosecutor who also wrote an early, influential ruling on cellphone location data, once joked with Smith that they would soon have enough like-minded magistrates to form a bowling team, Smith recalled.

That prompted Orenstein to design shirts featuring the image of a bowling ball rolling toward a cellphone and nine cell towers arranged in a triangle like a set of bowling pins. Above the image it read, “CSI: Cell Site Information.” Below it read, “Bowling for Dialers.”

When other magistrates write opinions on the issue — regardless of which side they take in the debate — they are offered one of the shirts.

While a bit more jokey than you'd normally expect from some judges, things like this certainly help remind the judges that these kinds of requests are important to pay attention to, and aren't "just another" request to rubber stamp. That's a good thing.

While the article notes that the government is starting to more aggressively appeal these magistrates (and some federal judges have been overturning them) it's still good to see the magistrates stepping up and tackling this issue.

Filed Under: 4th amendment, david waxse, doj, ed snowden, john facciola, magistrate judges, warrants