Consumer groups protest forced spying

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By Tom Spring

(IDG) -- Privacy rights groups and consumer electronics firms are banding together to oppose a California federal court order that mandates tracking ReplayTV users' TV viewing habits to determine whether they violate copyright laws.

The Electronic Privacy Information Center calls the request "mind-boggling" and is drafting the amicus brief in support of SonicBlue's appeal.

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"It is unprecedented that a judge would force a company to spy on its customers and hand over results to plaintiffs," says Megan Gray, senior counsel at EPIC. The organization expects to submit its position to the court early next week.

"George Orwell must be spinning in his grave," the Consumer Electronics Association says in a statement condemning the Central District Court of California for its decision.

Who's Watching What?

The court action came during the pretrial discovery process in four separate lawsuits filed against SonicBlue by entertainment studios and networks. Their target: the $699 TV recording device ReplayTV 4000, introduced last September. The newest model in the ReplayTV line lets viewers record shows without commercials and transmit copies of recordings over a home network or the Internet. About 10,000 SonicBlue customers have the device.

The federal judge ordered SonicBlue to monitor its customers' ReplayTV usage to see whether it meets the criteria of fair use permitted in the 1984 "Betamax" defense. In that instance, the U.S. Supreme Court ruled against banning VCRs, arguing that the devices were used primarily in ways that did not infringe on copyright.

But constitutional law experts say SonicBlue may have damaged its own case in regard to tracking its customers. SonicBlue's privacy policy allows it to track ReplayTV customers' viewing habits, and its users agree to the policy whether they realize it or not.

In fact, SonicBlue did monitor its customers' usage anonymously in the past, but it ceased doing so about a year ago. SonicBlue representatives acknowledge that the company changed its practice after competitor TiVo came under fire for noting its customers' usage.

Ironically, the company also modified its software so that similar monitoring is not possible with the ReplayTV 4000 model. Consequently, it must revise and update the software in each unit to comply with the judge's order, says Andy Wolfe, SonicBlue's senior vice president and chief technology officer. The company calls the court's demand "draconian."

Notorious Past

Still, the monitoring clause in SonicBlue's current privacy policy may give courts leverage to insist upon its use, despite the company's legal appeal and its support from other organizations, say legal experts.

"You can't complain about something that you yourself are doing," says Edward Steinman, a professor of law at Santa Clara University. Whether SonicBlue has halted its viewer tracking practices is a moot point, he says.

Privacy groups say the primary issue is not a matter of the number of people affected, or even of past practices, but of the precedent such an order would set.

SonicBlue's data about viewing habits cannot even be aggregated, but must identify customers by unique numbers, says Magistrate Judge Charles Eick of the Central District Court of California. He ordered SonicBlue to impose a tracking system by no later than June 24.

Plaintiffs in the suit include Viacom, the NBC television network, ABC/Walt Disney, and AOL Time Warner. (AOL Time Warner is the parent company of CNN.com.) They contend that they need the data to determine the extent of theft of copyrighted content enabled by ReplayTV. A central bone of contention is the device's SendShow feature, which enables a user to transmit a stored program between two ReplayTV 4000 units -- even over the Internet.

At the moment, however, such an endeavor would require extremely patient pirates. A PC World evaluation found that transmitting a 30-minute broadcast show recorded by ReplayTV 4000 took more than 36 hours on a DSL line.

Another Battle

SonicBlue's case is just the latest in the ongoing battle between the principle of consumer fair use and copyright. Entertainment industry copyright-holders claim they'll be devastated by piracy as copying and electronic transmission of digital material becomes simpler and faster. They're waging war on several fronts, from the courthouse to legislative chambers. Congress has ordered the technology and entertainment industries to try to find a solution.

Why should SonicBlue risk alienating its customers by reverting to user-monitoring tactics, argues Fred von Lohmann, senior intellectual property attorney with the Electronic Frontier Foundation. The EFF, an online civil rights organization, opposes the order and speaks out against related legislation.

"The fact that plaintiffs are using a court order to go into people's homes and collect data for them is unheard of," von Lohmann says. "This is a company that has not been found guilty of doing anything wrong."

SonicBlue's Wolfe says the company simply neglected to update its privacy policy to remove the clause permitting monitoring of subscriber usage. "Tracking users is not something we are interested in doing anymore," he said.

Nevertheless, that past practice may put its supporters in an awkward spot. For example, the Consumer Electronics Association, a strident supporter of consumer privacy, was unaware of SonicBlue's past practices and its existing policy, says Jenny Miller, a CEA spokesperson.

"I'm wondering whether SonicBlue is really the best one to question this ruling," notes law professor Steinman.