After the RIAA broke their “promise” not to sue additional people for allegedly illegal file sharing, details are coming out regarding some “restrictions” being placed on one particular lawsuit, in which the RIAA has decided to play Homeland Security and is seeking to search the contents of a defendant’s hard drive for evidence of dirty deeds. Bending like a wet noodle to the RIAA’s demands, a judge has issued a “protective order” (PDF file) permitting the search, but with limitations and restrictions on who can see the contents, and exactly what contents supposedly can be seen.
As if the idea of a private lobbying group who only thinks it’s a law enforcement agency prying into your hard drive isn’t chilling enough, the restrictions (in digest form) are a bit absurd.
In a nutshell, the RIAA gets to pick a forensics expert, and the defendant gets to cart their computer to the the RIAA’s lawyers’ offices. There, the expert makes a “mirror image” of the hard drive, where they will look for evidence of file sharing, or evidence that the drive has been wiped. Because, you know, if you wipe your hard drive of any data whatsoever, that automatically makes you guilty of file sharing, right?
There are certain restrictions to this order meant to “protect” the defendant. For instance, the forensics expert must sign a confidentiality agreement, must agree not to look at a bunch of “non-relevant” videos, documents and web page files or history, and the plaintiffs themselves are prohibited from accessing the hard disk or mirror image. But really, c’mon! Once you have a mirror image of your hard drive out there, what control really does the defendant have over that data once it leaves their sight?
There are other questions, too. For instance: what constitutes a “non-relevant” file? If a “forensic expert” wants to determine if a certain file is “relevant,” wouldn’t they have to examine it?
I work with confidential work documents all the time. If I delete them from my computer, I do so securely merely because I don’t want to take the chance my machine could get hacked, stolen, whatever, and confidential data belonging to others exposed. But that doesn’t mean I’m file sharing, nor does it mean I’m even eliminating potential incriminating “evidence.” It would seem, however, that the recording industry would immediately assume the worst.
It’s easy for someone who’s not under the microscope to sit back and say “I don’t care. I’m doing nothing illegal.” But it isn’t necessarily about that. There are perfectly legitimate actions – securely erasing files, legally ripping your CD collection to MP3s for personal use only, even using bittorrent software and legally torrenting certain files – which, when taken out of context, can be made to falsely imply impropriety.
Besides, let’s be practical here. Everyone, and I mean, everyone has something on their computer they’d rather not have other people see. Maybe it isn’t something juicy like, naughty pics or videos, but it could be those embarrassing flirty letters to someone in the office, e-mails to family members about that nasty medical problem, or even just your bank passwords. If someone rifles through your stuff, do you ever really feel comfortable again?
The RIAA is clearly going on a fishing expedition. And the courts, sadly, are sitting back and letting them.