To share or not to share? That is the question facing cable operators these days, as they process a flood of subpoenas from the music industry, seeking information on cable-modem customers suspected of illegally downloading music files.
It all stems from a Recording Industry Association of America strategy shift in the past year, from targeting file-sharing services such as Kazaa and Morpheus to going after individuals who download music files in violation of the Digital Millennium Copyright Act.
This spring, the association announced it would field a blitz of subpoenas to gather names of suspected download pirates, but the action opens up a slew of legal issues for service providers — not the least of which centers on Internet-user privacy.
That is a central point for Charter Communications Inc., which has refused to hand over the information requested in the 75 RIAA subpoenas it has received — and has already filed objections in the Washington, D.C., federal circuit court, according to Linda Reisner, vice president and senior counsel for Charter.
The MSO argues that the subpoenas violate customer-privacy rights under the 1986 Electronic Communications Privacy Act, which protects consumers' electronic-communications activities. Charter's Internet policies hold that if a subpoena for Internet user information is filed by someone other than a law-enforcement agency — and does not involve national security or imminent-danger criteria under the 2001 USA Patriot Act — it must be backed up by a court order.
"We're not just going to produce this information without trying to protect our customers' privacy rights," Reisner said. "That is again our attempt to follow the Electronic Privacy Act in a situation where the exceptions under the Patriot Act don't apply."
Charter is also making its arguments on procedural grounds. The RIAA originally issued its subpoenas in the Washington, D.C., court, and Charter has no systems in that jurisdiction. Just last week, the RIAA responded by re-serving the subpoenas to Charter's registered agent in Maryland, where the MSO does have some cable systems.
"I again will be objecting on procedural grounds, because although we have some systems in Maryland, none of the subpoenas relates to any Maryland customers," Reisner noted.
Charter also is arguing the flood of subpoenas is too great a burden. Reisner noted she already has had to bring in outside legal help to research the subpoena requests, just in case the MSO's objections are overturned by the federal court.
"It's time-consuming, both in the legal department and in operations to gather the information and respond to the requests," Reisner said. "As a result of that, if we have to staff up more to respond to all of these requests, that ultimately hurts our customers because our prices will go up.
"I am gathering the information in case I am required by the court to produce it, but I am not sharing the information," she added. "And I do intend to give notice to a customer before I produce it."
Other operators are choosing to comply — for now. Comcast Corp. has received notice of subpoenas aimed at its broadband users, but it is not releasing the number issued so far, according to spokeswoman Sarah Eder. The MSO has issued a statement explaining its policy:
"At Comcast, our customers' privacy comes first. However, we will comply with a subpoena in situations in which we are legally bound and when the request meets specific legal criteria," the statement reads. "Comcast will continue to evaluate its position and obligations with regard to future requests."
Time Warner's complying
Time Warner Cable has received a little more than 100 subpoenas for the names of suspected download pirates, and it has complied with the requests, according to spokesman Mark Harrad.
But it is taking the added step of notifying the affected customers that their names and addresses have been turned over to the RIAA.
"Our strategy is focused on the primacy of privacy," Harrad said. "We want to assure our customers' privacy, so we thought if we received a subpoena, rather than just respond to it — which is all you have to do by law — we would take the initial step of alerting the customer and allowing the customer some time."
Cox Communications Inc. has received eight RIAA subpoenas, according to Jennifer Hightower, assistant general counsel. The MSO is not providing any other information besides the affected customers' names and addresses, and it is now working on a policy to handle subsequent subpoena requests, she added.
Although the formal policy is still under development, Cox's general philosophy that sides with its cable-modem customers and gives them the benefit of the doubt, according to Steve Gorman, executive director of marketing for residential data services.
"I think to the extent to which information is being requested, if it seems unreasonable or it does not provide us with enough facts, if you will, to make an informed decision, then we will not be providing information," he said. "To the extent which it has to do with law enforcement, that's a different avenue.
"We will continue to err on the side of the customer as the guiding principle — we will continue to litmus-test our decision-making with that process."
While some cable operators choose to protest the RIAA subpoenas, it may be more to maintain an image with customers and Capitol Hill lawmakers, said Bruce Leichtman, president of Leichtman Research Group Inc. If that is the strategy, losing may not be such a bad thing.
"Then you've got the out. Then you can say, 'Wait a minute. We've got no choice here,' " Leichtman said. "And I don't think it is only with their subscribers — I think it is with politicians.
"When you've got [Arizona U.S. Sen. John] McCain going crazy about 7% rate increases, it's just such a political hot button. If that is taken off the plate, it makes it so much easier for the operator."