SAN FRANCISCO - The Electronic Frontier Foundation (EFF) announced in a Monday press release that the Center for Democracy and Technology (CDT) and EFF urged a California court to overturn a dangerous ruling that would require an Internet search engine to create and store logs of its users' activities as part of electronic discovery obligations in a civil lawsuit.
The ruling came in a copyright infringement lawsuit filed by motion picture studios against TorrentSpy, a popular search engine that indexes materials made publicly available via the Bit Torrent file sharing protocol. TorrentSpy has never logged its visitors' Internet Protocol (IP) addresses. Notwithstanding this explicit privacy policy, a federal magistrate judge has now ordered TorrentSpy to activate logging and turn the logged data over to the studios.
"This unprecedented ruling has implications well beyond the file sharing context," EFF Staff Attorney Corynne McSherry said.
"Giving litigants the power to rewrite their opponent's privacy policies poses a risk to all Internet users," she added.
The magistrate judge incorrectly reasoned that, because the IP addresses exist in the Random Access Memory (RAM) of TorrentSpy's webservers, they are "electronically stored information" that must be collected and turned over to the studios under the rules of federal discovery.
This decision could reach every function carried out by a digital device. Every keystroke at a computer keyboard, for example, is temporarily held in RAM, even if it is immediately deleted and never saved. Similarly, digital telephone systems make recordings of every conversation, moment by moment, in RAM.
"In the analog world, a court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," EFF Senior Staff Attorney Fred von Lohmann said.
"There is no reason why the rules should be different simply because a company uses digital technologies," he added.
The decision also threatens to radically increase the burdens that companies face in federal lawsuits, potentially forcing them to create and store an avalanche of data, including computer server logs, digital telephone conversations, and drafts of documents never saved or sent.
The magistrate judge in the case has stayed her order while TorrentSpy appeals the ruling. The case is Columbia Pictures Industries v. Bunnell, No. 06-01093 FMC, pending in the US District Court for the Central District of California before Judge Florence-Marie Cooper.
The Center for Democracy and Technology works to promote democratic values and constitutional liberties in the digital age.
From the Internet to the iPod, technologies are transforming our society and empowering us as speakers, citizens, creators, and consumers. When our freedoms in the networked world come under attack, the EFF is the first line of defense.
