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.