FEDERAL COURT DISMISSES CRIA's APPEAL SEEKING DISCLOSURE OF THE IDENTITIES OF 29 PSEUDONYMOUS FILE SHARERS
posted by:Ian Kerr // 03:06 PM // May 19, 2005 // Digital Democracy: law, policy and politics
earlier today, the canadian federal court of appeal released its reasons for judgement in the much publicized litigation between the canadian recording industry association (cria) and 29 pseudonymous P2P file-sharers.
based on a lack of evidence, the court dismissed cria's appeal, upholding a prior ruling that refused to disclose the identities of 29 alleged file-sharers.
in rendering its decision, the court acknowledged that "[c]itizens legitimately worry about encroachment upon their privacy rights" and that such "intrusion not only puts individuals at great personal risk but also subjects their views and beliefs to untenable scrutiny."
at the same time, the court was careful to frame the issue as an attempt to balance "the tension existing between the privacy rights of those who use the Internet and those whose rights may be infringed or abused by anonymous Internet users."
having declared the outcome "a divided success," the court affirmed cria's "right to commence a further application for disclosure of the identity of the 'users'."
although the long term implications of this divided success are yet unknown, i fear that cria will interpret the dismissal of its claim as an invitation to conduct more agressive surveillance in furtherance of what michael geist has predicted will result in thousands of suits against individual Canadians in the months ahead.
isn't it likely that, in attempting to affirm privacy in principle, the court's invitation to cria to commence further applications without prejudice might actually undermine the privacy of netizens?
in a recently released draft book chapter titled "Nymity, P2P & ISPs," alex cameron and i predicted that:
... a number of the Court’s findings in BMG v. Doe may quite unintentionally diminish Internet privacy in the future. Recall that the result in BMG v. Doe turned on the inadequate evidence provided by CRIA. The decision openly invites CRIA to come back to court with better evidence of wrongdoing in a future case. Such an invitation may well result in even closer scrutiny of Internet users targeted by CRIA, both to establish a reliable link between their pseudonyms and their IP address and to carefully document the kinds of activities that the individuals were engaged in for the purpose of attempting to show a prima facie copyright violation. It could also motivate the development of even more powerful, more invasive, surreptitious technological means of tracking people online. This increased surveillance might be seen as necessary by potential litigants in any number of situations where one party to an action, seeking to compel disclosure of identity information from an ISP, is motivated to spy on the other, set traps and perhaps even create new nyms in order to impersonate other peer-to-peer file-sharers with the hope of frustrating them, intimidating them, or building a strong prima facie case against them.
regardless of whether cria and other organizations respond along these lines, i think that it is imperative that our courts stop paying lip-service to privacy and start grappling with the gruesome implications of: (i) permitting low evidentiary thresholds for identity disclosure, and (ii) offering open invitations to large and powerful organizations, with little guidance or constraint, thereby encouraging powerful organizations to gather more evidence by better monitoring everyone's intellectual consumption habits.
such a course is a recipe for disaster.
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