The Curious Case of the D.C. District's Anonymity Orders

Just before Christmas 2011, a federal magistrate working under D.C. District Court issued a… curious ruling. The case is Hard Drive v. Does 1-1,495, another one of these mass-joinder copyright-infringement cases. I recommend hitting that link for the full story, but here's the basic sketch: The plaintiff – named, ahem, "Hard Drive Productions" – tries to sue 1,495 IP addresses allegedly linked to some BitTorrent activity. So, Hard Drive successfully moves for some expedited discovery, subpoenas the ISPs linked to the IP addresses in order to find out who they should sue, the ISPs notify (at least some of) the subscribers linked to those IPs, and (at least some of) the subscribers anonymously move to quash the subpoenas and keep their identities secret. So far, so good – that's how you'd expect it to work. Problem is, the D.C. District Court has a local rule disallowing anonymous filings. So, the judge comes up with a work-around: Put your names on your motions to quash, and we'll keep them under seal from the public and from Hard Drive (who gets copies of the motions with the identifying information redacted). Seems fair enough. The case gets passed to a magistrate for management. Then, the magistrate decides… "never mind." He issues an order telling all of the defendants that they can either (a) file their motions publicly (thus, revealing their identities and defeating the purpose of the motions), or (b) withdraw their motions (meaning their identities will be revealed). If that strikes you as a bit odd, you're not alone. There are indeed many troubling things happening in this case and this ruling, and I won't pretend to cover them all here. Today, I'm interested in one particular claim in the magistrate's order: "Individuals who subscribe to the [I]nternet through ISPs simply have no expectation of privacy in their subscriber information." This claim didn't just materialize out of thin air—the magistrate was kind enough to cite a few cases. So, come with me, and see if you can spot the point at which the context of the cases shifts dramatically. (Hint: there be child pornography cases ahead.) The Hard Drive Order We begin at the beginning (or, depending on how your species percieves time, perhaps we begin at the end). To support the "no expectation of privacy" claim, the magistrate cites three cases: U.S. v. Christie, 624 F.3d 558 (3rd Cir. 2010); Guest v. Leis, 255 F.3d 325 (6th Cir. 2001); and the mouthful Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 736 F. Supp. 2d 212 (D.D.C. 2010). (For an added bit of fun, note this January 23, 2012 order from the same magistrate judge in a different mass-copyright case, West Coast Productions v. Does 1-1,434, which made the same reverse-a-previous-order-to-keep-identities-protected ruling, citing the same three cases as the Hard Drive order.) Out of this set of three, Achte/Neunte clearly stands out: its name has the look and feel of one of these mass-defendant file sharing cases, and it's from the relevant jurisdiction. So, it seems like a good place to begin. But First, Some Context Before we get to Achte/Neunte, Leis, and Christie, it's worth pointing out one thing: the Hard Drive order isn't exactly a bolt from the blue. Indeed, there's a whole string of D.D.C. decisions, denying anonymous defendants' motions to quash in huge, colorfully-named copyright caes over the past couple of years. And each of them – West Coast Productiongs v. Does 1-5,829, Call of the Wild Movie v. Does 1-1,062, Donkeyball Movie v. Does 1-171, and Maverick Entertainment Group v. Does 1-4,350 – cites to and builds the ones that came before, all tracing back to Achte/Neunte. Some (like Maverick and Donkeyball) are terse, two-or-three-page orders; others, like Call of the Wild, ponder the issue a bit more. But they all endorse the same statement: ISP subscribers don't have any expectation of privacy in their information. That doesn't make the Hard Drive order any better or less befuddling, but it at least tells us that Achte/Neunte is very much a live piece of precedent. So Anyway: Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577 Man, I love typing that. So, what is this thing? A six-page D.D.C. order in another mass-copyright case dealing with another anonymous attempt to quash subpoenas. And at the bottom of page 5, we get the context for our grail-statement: "[C]ourts have held that Internet subscribers do not have an expectation of privacy in their subscriber information as they already have conveyed such information to their Internet Service Providers." In support, the Achte/Neunte order cites three cases: U.S. v. Hambrick, U.S. v. Kennedy, and Guest v. Leis, which as you'll recall is one of the three citations in the Hard Drive order. So, what are these cases? Guest v. Leis, 255 F.3d 325 (6th Cir. 2001): a lawsuit stemming from an online-obscenity bust, alleging Fourth Amendment violations. During the investigation that led to the bust, the government had gotten its hands on th