*** AUGUST 30TH, 2012 UPDATE: Judge Thomas Wilson of the Middle District of Florida just suggested that Cable Operators who are also ISPs could be bound by the Cable Act. ***
*** AUGUST 27TH, 2012 UPDATE: Because of Judge Facciola’s ruling in the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) DC case, I pasted (below) the original article from 5/2011. Related article is “Judge Facciola opens up a can of worms with the Cable Act.” ***
This morning I posted an article about how it may be possible to sue internet service providers for the disclosure of subscribers’ private information pursuant to a subpoena from an expedited discovery order.
I have since pulled the article because the arguments as I described them would likely not hold up in the courts. The statutes I referenced dealt with government entities seeking subscriber information for the purposes of prosecuting criminal acts. In our John Doe cases, the plaintiffs seeking subpoenas are not government entities.
What fascinated me about the arguments from a purely legal perspective was that the same activity of disclosing private subscriber information while once legal would have over time become illegal based on activities in the courts and would have even subjected the ISPs to civil liability simply for changed circumstances.
In short, part of being your attorney is not only playing the part, but seeking out and testing new applications for statutes and making new arguments in the courts which have not yet been addressed by the current case law or the statutes. This argument will not work. The next one might.
*** AUGUST 27TH, 2012 UPDATE***
Because this issue became relevant in Judge Facciola’s ruling against Cablevision in the Openmind Solutions, Inc. v. Does 1-565 (Case No. 1:11-cv-01883) case in the District of Columbia, I am reprinting the article that I pulled under the condition that readers understand that this was a legally unsound argument. I am merely posting it here for INTELLECTUAL CURIOSITY. As readers will note, 1) the statute does not apply to our circumstances, and 2) there is an abundance of case law which states that the Cable Act does not apply to ISPs (although DC never ruled on this issue).
Law can sometimes be dry, but once in a while, it can provide a sweet and juicy protection for those dealing with copyright infringement claims.
It appears to me as if there might be a way to stop the ISPs from handing out subscriber information to the plaintiff attorneys who have been incessantly using expedited discovery motions to gain subscriber information for the purpose of extorting money from them as defendants in these John Doe copyright infringement lawsuits.
Whenever a defendant receives a subpoena, if he or she calls their ISP, they will likely say, “file a motion to quash or else we will be forced to comply with the subpoena.”
However, as soon as they do file the motion to quash, the plaintiff attorneys have been claiming in their motions opposing almost each and every motion to quash that “so-and-so filed a motion to quash; so-and-so has never been named in this lawsuit and is thus not yet a party to the action. So-and-so thus does not have standing to file this motion to quash and so the court should deny his motion to quash.”
READ THIS CLOSELY.
47 U.S.C. 551, entitled “Protection of subscriber privacy,” apparently provides a remedy to this issue. The statute states that the ISPs can disclose private subscriber information only if the accused defendant is given “the opportunity to appear and contest” the plaintiff’s claim [e.g., in a motion to quash].
However, if we consider what plaintiffs have been saying to the courts for many months now, (e.g., that unnamed John Does do not have standing to file motions to quash because they are not parties to the action), then this would indicate that accused defendants are NOT given the opportunity to “appear and contest” their being hauled into court to defend a copyright infringement lawsuit. Plaintiff attorneys joke about this regularly stating that few (if any) motions to quash have ever been successful.
ISPs should be put on notice of this fact by attorneys defending John Doe defendants, because 47 USC 551(f) allows any person aggrieved by this statute to sue the ISP in a US District Court. If sued, the ISP can be found liable for actual damages, punitive damages, and reasonable attorneys’ fees and other litigation costs if they are found to be in violation of this statute.
Once we confirm that this is a viable argument, for those defendants who have been aggrieved by the ISPs’ unauthorized disclosure of their information and have been subjected to unnecessary harassment, settlement costs, or attorney fees in defending such a copyright infringement lawsuit, perhaps this might be a way to right a wrong that so many have suffered.
While we will obviously need to research this statute further to determine whether this can actually be used to stop or deter ISPs in the future from disclosing subscriber information to plaintiff attorneys in copyright cases, for now it appears to be a promising argument that I will bring to their attention. As with any other posting on this site, this article is not to be taken as legal advice and is the editorial of the author, and no representations have been made as to future acts that may be taken by the Firm.
[ONCE AGAIN, I PULLED THIS ARTICLE SHORTLY AFTER POSTING IT BECAUSE THE ARGUMENTS WERE UNSOUND. I AM SIMPLY POSTING IT HERE TO GIVE A BIT OF BACKGROUND ON WHAT IS GOING ON WITH THE OPENMIND SOLUTIONS, INC. CASE WITH JUDGE FACCIOLA AND CABLEVISION’S REJECTED ARGUMENT.]