A French agency that reports to the French Ministry of Culture dubbed “Hadopi” has been scouring the internet for months, harvesting the IP addresses of French citizens who have downloaded copyrighted materials .  By law, the ISP must hand over the email address of the customer hadopi has determined is guilty of downloading music or movies.

The anti-piracy law was passed after years of heavy lobbying by the SCPP, a French organization that appears to be similar to the RIAA and MPAA in the United States.  The SCPP claims that listening to music that was freely downloaded off the internet costs France’s music industry $978 million per year.

But it is much more complicated to calculate the true cost of free music to the French music industry.  It costs the music industry exactly $0 to put the music on the internet.  Each user that downloads the music costs the industry exactly $0.  Each time a French citizen listens to the music they downloaded for free, it costs the French music industry exactly $0.  So, $0 times the number of songs downloaded and listened to equals $0.  Huh, maybe that was not so complicated.

hadopi

Look Honey! The government is shutting off our internet for a year because we did not know how to secure our internet connection! Thanks Hadopi!

Of course the SCPP does not mean that piracy actually costs the music industry any money.  That is just clever way to say that the music industry has failed to capitalize on an opportunity, and blame those who have failed to increase their wealth.  It is actually the consumer’s fault for not buying their product when it is available for free.  What they are saying is that the music industry could make $978 million more per year if there were tough laws in place to prevent free distribution of music.

And pass tough laws is exactly what France did.  The law specifies that no matter who actually downloaded music or movies, the owner of the connection is responsible.  Three strikes and you can be barred from accessing the internet for a year.  And what of those who are not tech savvy enough to secure their internet connections?  Well thankfully, hadopi is writing instructions to help people protect themselves from those who would use their internet connection.  Very kind of them.  Maybe hadopi should have written instructions for the music industry detailing how the they can increase profits without trampling the civil rights of millions of French citizens.

4th amendment under fire

4th amendment under fire

The nullified ruling required that the government retrieve only specific information as specified in the search warrant, rather than simply imaging the hard drive and sifting through all the data contained.  If the government agent cannot do this effectively, the hard drive would be sent to an independent third party contractor that would sift through the data on the drive to locate the data pertinent to the search warrant.  The contractor would then send the relevant data and only the relevant data to the government agent.

The new ruling still maintains that information not included in the warrant must be excluded from the search and data found that is outside of the scope of the warrant cannot be used, but the ruling omits the detailed guidance as to how to collect the data.  The judges in their opinion urged “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.”

The ruling is clearly problematic for the fourth amendment of the constitution which reads

“The right of the people to be secure in their persons, houses, papers, and effects, against        unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon          probable cause, supported by Oath or affirmation, and particularly describing the place to be              searched, and the persons or things to be seized.”

The bill of rights was written to restrict the government in its actions against the American people.  It was designed to protect the citizens from the extraordinary power of the government.  Nowhere in the fourth amendment is there mention of balancing prosecutorial interests with the rights of the people.  It is clearly written to protect the citizenry from unreasonable search.  Scanning an entire hard drive, when searching for a bank transaction amounts to unreasonable search.

The Obama administration(insert link to kagan.pdf) argues that the Plain View Doctrine applies to computer seizures so any data recovered in a search would be admissible.  As Solicitor General, Elena Kagan asked the 9th circuit court of appeals to reconsider its ruling that protected data and set forth guidelines for data collection as the fourth amendment gets in the way of a speedy prosecution.

The ruling stems from a 2004 case when federal prosecutors were probing a steroid ring and obtained a warrant to seize the results of urine samples of 10 Major League Baseball players from a drug testing

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