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Thursday, March 17, 2011

Proposal to Wiretap Suspected Infringers Raises Privacy Concerns

David Makarewicz
SitesAndBlogs.com

This is Part II of a series of articles analyzing specific aspects of the Obama Administration's White Paper (available for download here), recommending legislative changes to combat online piracy and counterfeiting.  Click here for if you missed our overview of the White Paper in Part I.

The Proposal Would Allow The FBI To
Wiretap Copyright Infringement Suspects
One of the most troubling recommendations in the White Paper is the Obama Administration's request for Congress to grant its enforcement agencies the power "seek a wiretap for criminal copyright and trademark offenses."  This would require Congress to amend the Wiretap Act, which does not currently include copyright and trademark infringement among the offenses that justify a privacy invasion as extreme as a wiretap.

In order to preserve the private nature of communications, the Wiretap Act (as amended by the The Electronic Communications Privacy Act of 1986), 18 U.S.C. § 2511, makes it generally illegal for anyone, including the Government, to "intercept, any wire, oral, or electronic communication."  However, the law has carved out certain exceptions to this rule under which the Government can request permission to intercept certain communications for a limited time.

Wiretapping is only permitted for certain types of offenses.  The United States Supreme Court has explained that wiretapping is only permitted "when law enforcement officials are investigating specified serious crimes." 

Those serious crimes are listed in 18 U.S.C. § 2516, which authorizes a federal agency to intercept "wire or oral communications" if the wiretapping might provide evidence of certain crimes specifically named in the statute.  In addition to the inclusion of obvious crimes like murder, rape or sabotaging a nuclear facility, among the extensive list of serious crimes are sex trafficking, transportation of biological weapons, passport forgery, child pornography and economic espionage. 

Although "piracy" is listed, it does not cover online copyright infringement.  The statute is literally referring to a person who "on the high seas, commits the crime of piracy."

In the White Paper, the Obama Administration is asking Congress to amend 18 U.S.C. § 2516 to add copyright and trademark offenses to its list of crimes for which wiretapping is allowed.  However, the Administration provides no clear explanation as to why intellectual property offenses are the types of "serious crimes" that should be listed alongside offenses like those listed above or presidential assassination or terrorist attacks against mass transportation. 

The Administration's stated explanation seems more like an attempt to confuse the issue.  Page 11 of the White Paper baldly states:
Wiretap authority for these intellectual property crimes ... would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises.
It is not clear how we jumped from "those offenses" to "organizers of criminal enterprises."  I can't help but be suspicious of the strange structure of this request.  It seems like the Administration wants us all to focus only on the targeted criminal enterprises and ignore the fact that it would actually be permitting wiretapping for all copyright or trademark infringement.

This would be like asking for the right to use deadly force on all shoplifters, including those attempting to blow up the mall.  If we are only talking about wiretapping criminal enterprises, let's limit the amendment to that.  If we are actually talking about wiretapping individual suspected infringers, let's call it what it is.

Commentators have begun to question whether these types of crimes justify a governmental privacy invasion of the magnitude of wiretapping.  Washington Post blogger Alexandra Petri is also wondering where it will stop.  Petri wrote:
And another suggestion in the white paper — that wiretapping authority be extended to intellectual property crimes — seems troubling, too. Wiretapping? For intellectual property violations? I know it “would assist U.S. law enforcement agencies to effectively investigate those offenses, including targeting organized crime and the leaders and organizers of criminal enterprises,” but so would ordinances that allow you to frisk anyone who has visited an Arby’s, even once, and you don’t see the White House asking for those.
Petri is correct to concede that allowing wiretapping would help the government to track down and prosecute copyright infringers.  In addition to the usual reasons to want to wiretap a suspect, without the amendment, if the FBI or DHS wants to investigate a suspected infringer, the Wiretap Act greatly limits their ability to intercept packets en route to or from the infringer's computer.  An en route packet is typically interpreted by courts to meet the statutory definition of an “electronic communication" that can only be intercepted in limited circumstances. 

However, even if it would assist investigative efforts, the purpose of the Wiretapping Act was not to give the Government a new crime fighting tool.  It was to limit the Government's ability to trample its citizens' privacy rights by monitoring their communications.

Computer & Communications Industry Association chief Ed Black is going even further.  In an explosive statement, Black said:
Some in Congress and the White House have apparently decided that no price is too high to pay to kowtow to Big Content's every desire, including curtailing civil liberties by expanding wiretapping of electronic communications. Even the controversial USA PATRIOT Act exists because of extraordinary national security circumstances involving an attack on our country. Does Hollywood deserve its own PATRIOT Act?
There are also technical reasons that electronic surveillance should be avoided.  Computer engineer Susan Landau, author of Surveillance or Security? The Risks Posed by New Wiretapping Technologies, warns that building Internet eavesdropping solutions can unwittingly open computers up to non-government spying.  She told NPR last month about a case in Greece in which a cell phone wiretapping system opened a hole so big it allowed spies to monitor the prime minister and other Greek officials.

Additionally, even when a wiretap is authorized, the Internet creates a difficult environment for the trackers.  Last month, the F.B.I. complained to the House Judiciary Committee about the variety of technical problems that prevent them from effectively carrying out an authorized wiretap.

Hopefully, Congress will carefully consider the reasons that only certain serious offenses are presently authorized by the Wiretap Act and not blindly add two seemingly less serious crimes.  At a minimum, the Obama Administration has a responsibility to honestly articulate the reasons that copyright and trademark theft are more important than the privacy rights of its citizens.

This was Part II of a multi-part analysis of the recommendations in the White Paper, as well as what these recommendations tell us about the Obama Administration's intellectual property philosophy and agenda.  In Part III, we analyze the implications of making it a felony offense to stream infringing materials.

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