Excerpt taken from the L.A. Times.
SACRAMENTO â€” The music and movie industries are lobbying state legislators for permission to deceive when pursuing suspected pirates.
The California Senate is considering a bill that would strengthen state privacy laws by banning the use of false statements and other misleading practices to get personal information. The tactic, known as pretexting, created a firestorm of criticism when detectives hired by Hewlett-Packard Co. used it last year to obtain phone records of board members, journalists and critics.
But the Recording Industry Assn. of America and the Motion Picture Assn. of America say they sometimes need to use subterfuge as they pursue bootleggers in flea markets and on the Internet.
In recent letters to state Sen. Ellen Corbett (D-San Leandro), the trade groups said the proposed legislation was written too broadly and could undermine anti-piracy efforts. They said investigators sometimes pose as someone else to obtain bootlegged CDs or movies and to break into online piracy rings.
“Basically, we want criminals to feel comfortable that who they’re dealing with is probably some other criminal and let us in on what’s going on,” said Brad Buckles, the RIAA’s executive vice president for anti-piracy. “We’re not talking about trying to go in and get customer information. In no case have we ever tried to do that.”
The RIAA proposed changes to the piracy bill that raised alarms among consumer advocates. The trade group asked that any owner of a copyright, patent, trademark or trade secret be able to use “pretexting or other investigative techniques to obtain personal information about a customer or employee” when seeking to enforce intellectual property rights.
“I don’t see why the recording industry shouldn’t have to follow the same laws that everyone else follows,” said Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, a digital rights group in San Francisco. “It appears they want to make the loophole so big that nobody else has to follow the law, either.”
Hollywood succeeded in killing a similar bill last year. Other opponents of the bill included the California Chamber of Commerce and the Direct Marketing Assn.
While applauding the bill’s intentions, the movie and music industries said the measure would limit their methods for gathering evidence to share with law enforcement.
“This legislation could be construed to prevent MPAA’s anti-piracy department and contract investigators, who gather evidence to bring legal actions against criminals who counterfeit and steal motion pictures and other works, from employing certain long-employed techniques to obtain information,” the movie association wrote in a letter obtained by The Times.
The association also said those techniques “could include posing or portraying an individual personality as part of an ongoing investigation.”
Buckles said the recording association had never, nor would it ever, assume someone’s identity to access that person’s phone or bank records. Rather, he said, the group was seeking assurances that its investigators would not run afoul of state privacy laws when they hide their industry connection from traffickers of pirated or counterfeit music.
The industry’s proposed amendment is unlikely to get anywhere when it comes up for an initial hearing in the California Senate’s Judiciary Committee on Tuesday.
Sen. Corbett, the bill’s author, chairs the committee and is unlikely to accept what’s known in legislative parlance as a “hostile amendment.” An attorney and consumer protection advocate, Corbett should receive solid backing from the two other Democratic attorneys on the five-member Judiciary Committee: Sen. Sheila Kuehl (D-Santa Monica) and Sen. Darrell Steinberg (D-Sacramento).
Kuehl, a former child actor who played Zelda in the popular 1960s sitcom “The Many Loves of Dobie Gillis,” said she shared concerns over piracy. But she said she wasn’t sure that the amendment was the best way to deal with the problem.
“I think it’s going to be a very hard go for the RIAA on this because the underlying principal is so visceral to everybody,” she said. “I don’t want people calling up and pretending to be me to get my personal information. They’ll have a hard time convincing people that piracy is so different that they ought to be allowed to engage in these otherwise illegal acts.”
Chris Hoofnagle, a privacy attorney at UC Berkeley’s Samuelson Law, Technology & Public Policy Clinic, said there was no rational reason to exempt one industry from pretexting laws, especially when information can be legally obtained through subpoenas and other means.
“The whole point of these pretexting bills is to rein in private law enforcement that is not accountable to the public or to normal rules,” Hoofnagle said. “There isn’t much sense in allowing an entire industry to play with a different rule book.”