San Francisco - The Electronic Frontier Foundation (EFF)
and Center for Democracy and Technology (CDT) urged a
California court Friday to overturn a dangerous ruling that
would require an Internet search engine to create and store
logs of its users' activities as part of electronic
discovery obligations in a civil lawsuit.
The ruling came in a copyright infringement lawsuit filed
by motion picture studios against TorrentSpy, a popular
search engine that indexes materials made publicly
available via the Bit Torrent file sharing protocol.
TorrentSpy has never logged its visitors' Internet Protocol
(IP) addresses. Notwithstanding this explicit privacy
policy, a federal magistrate judge has now ordered
TorrentSpy to activate logging and turn the logged data
over to the studios.
"This unprecedented ruling has implications well beyond the
file sharing context," said EFF Staff Attorney Corynne
McSherry. "Giving litigants the power to rewrite their
opponent's privacy policies poses a risk to all Internet
The magistrate judge incorrectly reasoned that, because the
IP addresses exist in the Random Access Memory (RAM) of
TorrentSpy's webservers, they are "electronically stored
information" that must be collected and turned over to the
studios under the rules of federal discovery.
This decision could reach every function carried out by a
digital device. Every keystroke at a computer keyboard, for
example, is temporarily held in RAM, even if it is
immediately deleted and never saved. Similarly, digital
telephone systems make recordings of every conversation,
moment by moment, in RAM.
"In the analog world, a court would never think to force a
company to record telephone calls, transcribe employee
conversations, or log other ephemeral information," said
EFF Senior Staff Attorney Fred von Lohmann. "There is no
reason why the rules should be different simply because a
company uses digital technologies."
The decision also threatens to radically increase the
burdens that companies face in federal lawsuits,
potentially forcing them to create and store an avalanche
of data, including computer server logs, digital telephone
conversations, and drafts of documents never saved or sent.
The magistrate judge in the case has stayed her order while
TorrentSpy appeals the ruling. The case is Columbia
Pictures Industries v. Bunnell, No. 06-01093 FMC, pending
in the U.S. District Court for the Central District of
California before Judge Florence-Marie Cooper.
For the full amicus brief: