May 3, 2004 | By Donna Wentworth

The New "Piracy Surveillance" - Whither Due Process?

Fordham law professor Sonia Katyal has an article up @ the SSRN Electronic Library that brings to mind a question I asked some months ago over @ Copyfight: Why do we tolerate in the name of copyright protection what we only unwillingly tolerate in the name of combating terrorism -- e.g., law that strips us of our right to privacy and due process?

The paper, entitled "The New Surveillance," describes in detail how the courts aid and abet new, extra-judicial regimes of private/corporate surveillance on the Internet -- and proposes, among other things, "greater judicial supervision of the DMCA" as an appropriate fix.

Writes Prof. Katyal:

By making one's online activities, identities, and preferences transparently visible, peer-to-peer frameworks... create a culture of panopticism by other individuals.
[...]
As Part III shows, piracy surveillance carries the potential to transform the nature of copyright law from a liability-based regime into a regime that governs the creation and use of all cultural products in cyberspace, both illegitimate and legitimate.
[...]
The DMCA, and copyright law generally, must be reinterpreted in the wake of Verizon to square with principles of privacy, personal automomy, and fair use, that flow directly from our constitutional tradition.

The paper won the recent writing competition for Yale's Digital Cops conference; I can see why.

For further reflections, see Cardozo law professor Susan Crawford's excellent blog notes from Katyal's presentation @ Yale.


Deeplinks Topics

Stay in Touch

NSA Spying

EFF is leading the fight against the NSA's illegal mass surveillance program. Learn more about what the program is, how it works, and what you can do.

Follow EFF

.@zeynep Agreed. While key mgnt choices are complex & security critical, it may be unfair to call them backdoors. https://www.eff.org/deeplinks...

Jan 23 @ 6:52pm

EFF is on @CREDOMobile's January ballot! Your votes help us get more of the $150K+ donation pool. https://www.credodonations.co...

Jan 23 @ 5:22pm

Trump's nominee for Attorney General, Sen. Jeff Sessions, wants the government to be able to "overcome" encryption: https://www.eff.org/deeplinks...

Jan 23 @ 4:47pm
JavaScript license information