Thursday, January 23, 2014

Washington District Court Judge Landmark Ruling: You Are Not Your IP Address

by Nomad

A Washington judge's ruling in a copyright infringement case may have profound implications on the ability to prosecute cybercrime and to issue surveillance warrants by the NSA.

According to Judge Robert Lasnik, a United States federal judge, on the U.S. District Court for the Western District of Washington, evidence made up purely of IP addresses does not meet the legal requirements of pleading standards for pursuing the case against online pirates. He has ruled that IP address alone do not provide a sufficient means of identification.  
The fact of the matter and the law is that it is almost impossible to associate piracy based on the IP address and the IP address alone. The actual culprit might have been a family member, guest, or even a hacker. At the very least, the subscriber with that IP address can be scolded for not safeguarding his or her home computer.
In other words, the evidence may show that a particular IP was used but that doesn't mean that the accused in the courtroom is the one who used that IP address. 
That's really not news. The big law firms who have made a fortune bounty hunting for large media giants, have been successful using this prosecutorial method for years. 
Courts have been not questioned it. But they are starting to wake up, it seems.

The Elf Man Attacks
This particular case involved the illegal file-sharing of a film called "Elf-Man." Prosecutors for the studio obtained lists of IP addresses of downloaders. This list in turn was used to identify probable illegal downloaders. The judge refused to accept this evidence of idenitification.
Plaintiff’s complaint does not raise a plausible inference that any of the named defendants are liable for direct, contributory, or indirect copyright infringement
The full ruling is found here. (Good luck with that.)
 *   *   *
Such copyright-violator dragnets are not at all usual.
Such mass lawsuits are not that rare nor that new. In what can be best described as a fishing expedition, studios or copyright holders try to get subpoenas with simply just a list of IP addresses as evidence of piracy. If a judge falls for the trick, the plaintiffs can then force Internet service providers to spit out the personal details of those subscribers, who they can then sue by name. Some, of course, fought back and have succeeded as in this recent case.
Judge Laznik's decision might seem at first glance unremarkable and common sense. This is something that experts in the field have been arguing for years. 

An address, they've been saying, is an address only. If a crime is committed and the police track the alleged criminal to your home address, that certainly doesn't mean you as the home owner committed the crime. The ruling implies that a court requires a higher standard than that for identifying an individual than merely an address, home or internet address.

Broader Implications for Surveillance
However, with a little imagination, one can see how profound an impact it could have on not only on copyright infringement cases but on cyber-crime cases and government surveillance cases in which only IP addresses are used to identify the accused.

How this ruling might play in the ongoing debate over NSA spying is anybody's guess. It's easy to see how it could affect cases of Internet-related crime.
Here's another example.
Electronic Frontier Foundation (EFF) points to another problem with IP addresses. When the NSA officials assure the public (and the president) that its spying is confined to non-Americans, it is misleading in the extreme.
After all, a judge has just ruled that an IP address is not a suitable means of identification. How then could it possibly be a means of determining nationality? But there's more to it than that.
IP addresses, in general, are imperfect measures of a person’s location: if a large ISP (like, for example, AT&T) is assigned a block of IP addresses, an IP address assigned to someone in Canada one day could be assigned to an American the next, and vice versa. And all this, of course, says nothing about nationality or legal status: a given IP address says nothing about the citizenship of the person using the device.
Laznik's judgement is only a district court ruling, but, as others have pointed out, a few other courts have made some similar claims. It is sure to be challenged. Don't expect copyright chasing law firms to take this ruling lying down. They obviously cannot allow this rational decision to become the official position.

While the President and his security experts are attempting to lay down new rules for the NSA in the wake of the Snowden scandals, it's clear that this ruling- and any subsequent appeals in a higher court- will now need to be considered.  

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