May 13, 2004
Privacy Surveillance

Fordham Law School professor Sonia Katyal has written an insightful article about the effect of strengthened copyright law in the digital age (the DMCA) on privacy. Professor Katyal analyzes the difference between privacy in the real world, which she posits is based upon "geographical" limits and their defense, and in cyberspace, where there are no such "geographical" limits.

Katyal claims that the increased private enforcement/surveillance powers awarded to copyright owners under the DMCA provide copyright owners with the presumptive power to limit fair use of copyrighted material and to access private information formerly protected through judicial oversight.

Furthermore, Professor Katyal proposes that the powers the DMCA grants have resulted in a panoptical surveillance system resulting in increased exposure of personal information and reduction of legitimate uses of and access to copyright protected material.

One of Professor Katyal’s more important analyses concludes that the potential effect of the DMCA and recent court cases in which she proposes that a computer user opening his or her computer to any third party (such as in peer-to-peer communication) forfeits the shield of privacy with regard to information residing on that computer's hard drive.

Given the tremendous resistance to certain provisions of the DMCA and the unintended consequences of that law, the recent hearings on H.R. 107 offer hope that Congress is revisiting this matter again.

Some choice statements Professor Katyal makes:

Today, DRM technologies and other forms of piracy surveillance routinely govern and restrain one's at-home activities regarding usage of cultural products. DRM allows for the privatization of copyright enforcement; it eliminates judicial oversight and precludes an adversarial forum for the consumer's protection. These systems operate automatically and panoptically, without the benefit of a complaint, response, third-party determination, or even a modicum of judicial involvement. In other words, copyright enforcement has encroached, and integrated itself, into the home.

. . .

As the protection and control of intellectual property expands, the protection of informational privacy shrinks. As a result, speech suffers. Consumers are forced to internalize the costs of their loss of anonymity and will curb their expression by restricting their conduct to that which is unquestionably insulated from liability. This phenomenon, in turn, can reduce the number of works created and disseminated, but it also quite drastically affects the way individuals experience and use cultural products.

. . .

The underlying logic behind piracy surveillance is inextricably tied to real space principles, suggesting that intellectual property is equivalent, in both form and content, to other types of properties in real space . . . Proponents of piracy surveillance point out that comparable measures of legalized self-help (like the right repossession or defense of property) are traditionally available to property owners in real space; thus, the same should be available to intellectual property owners in cyberspace. This is true: A property owner is permitted, under the law, to take certain actions to recover stolen possessions, and is granted immunity from trespassing on others' land for that purpose.

Yet there is a crucial difference between such strategies in real space as opposed to cyberspace: Self-help methods in real space are traditionally premised on maintaining, not destroying preexisting boundaries between private and public space. For this reason, self-help strategies in real space reify, rather than erode the architecturally-created balance between spatial protections for privacy and protection of property . . .

. . .

Proponents of piracy surveillance, particularly where monitoring is concerned, contend, following Kennedy [United States v. Kennedy, 81 F. Supp. 2d 1103, 1006 (D. Kan 2000)], that a person does not enjoy any reasonable expectation of privacy in material that he or she might leave open for public view, display, or use, especially music files that can be uploaded to others. The Verizon trial court echoed this point, observing, where an ISP subscriber "opens his computer to permit others, through peer-to-peer filesharing, to download materials from that computer, it is hard to understand just what privacy expectation he or she has after essentially opening the computer to the world . . . Unlike analogies in real space, piracy surveillance does not entail formal notice, consent, or negotiation between the parties. Nor does it protect constitutional assurances of anonymity. Individuals who are caught within the panoptic Web of piracy surveillance have little protection: Any of their uses of cultural products, or expression, is subjected to the governing, extrajudicial gaze of a copyright owner.

. . .

As I have suggested, piracy surveillance involves a clear delegation to the private citizen to determine what constitutes infringement and what constitutes fair use. As a result, the DMCA creates a silent web of public and private interdependence, in which public functions are virtually ministerial, and private determinations are largely adjudicative. Given the substantial risk of strategic enforcement of infringement, the only way to balance the increasing encroachment on privacy protections is to ensure some level of hybridity between public and private enforcement.

Posted by kentab to Privacy at 09:05AM on May 13, 2004