A good week for civil liberties — mostly

Three opinions came out last week that made a nice little Chanukah gift for civil liberties buffs. Two related to Ashcroft’s attempts to circumvent the Constitution in the name fo security, one cuts short the RIAA’s efforts to gut the Constitution in the name of copyright. But the opinions still leave a lot of room for concern.

This week proved a good one for civil liberties in the courts, but a closer look shows much to remain worried about.

In Gherebi v. Bush, the Ninth Circuit held that the administration cannot hold foreign nationals indefinitely without any access to courts or other forms of review. In Padila v. Rumsfeld, the Second Circuit held that a U.S. citizen could not be held indefinitely and without council as an enemy combatant. Finally, in RIAA v. Verizon, thge D.C. Circuit reversed the decision of the district court that the Digital Millenium Copyright Act (DMCA) provides a right of subpeona to a copyright holder to demand an ISP provide an identity based on an IP address gathered from a peer-to-peer (P2P)file-swapping cite.

On the surface, this looks like pretty good reason to chear. And in many ways it is. But look carefully at these opinions. All are decided on the basis of statutory, rather than constitutional grounds. In Gherebi, the court concluded that there is a right to some form of review, although detention may yet prove lawful. In Padila, the court was careful to find that the limitation on the power to declare a U.S. citizen an enemy combatant arose from the statutory scheme enacted by Congress.

Most chilling, perhaps, is the language employed by the D.C. Circuit. After finding that the statutory structure of the DMCA did not support subpeonas against ISPs when ISPs were mere passive conduits to users, the D.C. Circuit added that it was not “unsympathetic” to the RIAA and that “the stakes are large for the music, motion picture, and software industries and their role in fostering technological innovation in our culture.” Nevertheless, the court found that it lies with Congress, not the court, to provide relief for the RIAA.

I am not criticizing the courts, mind. It is well established that courts should avoid constitutional questions wherever possible and should defer tot he legislative judgments of Congress. Indeed, I am not a huge fan of so-called “activist” courts striking down legislation on social grounds. Democracy is about placing responsibility in the hands of legislatures to balance the many social interests at play. Courts should overturn a law as unconstitutional only where it genuinely conflicts with an overriding constitutional principle, not merely because the law leads to an unjust result.

What I am warning agianst is the sort fo complacency that settled in after the Supreme Court struck down the Communications Decency Act in 1997. Civil libertarians spent years recovering from that victory, because the average techie and Internet user assumed that the First Amendment would save us from random acts of Congress.

As a result, the industry had a field day getting legislation passed. The most notable is the DMCA, passed in 1998, but also included are the Anti-Cybersquating and Consumer Protection Act, the Copyright Term Extension Act, the No Electronic Theft Act, and the Children’s Internet Protection Act (which mandates filters in libraries). All of these went through Congress and the rank and file community of cyber-civil libertarians never bestirred themselves to say word one.

Well here’s a wake up call. One hundred people writing haiku of the DeCSS code is cute, but pointless. If those same 100 people write their Congress critter and say that they emphatically that we DON’T want an amendment to DMCA to expand the subpeona power and over-rule RIAA v. Verizon, that will make a difference.

Because rest assured, the RIAA will try to get the law changed, and the D.C. Cir. has all but promised that a properly written statute will sustain Constitutional scrutiny. What stops the RIAA is not clever haikus or technological fixes, but voters who care. Because much as legislators love campaign contributions, they care more about what their consticuents think. Stuff flew through in 1998-99 because members of Congress concluded, rightly, that the rank and file did not care and they could do favors for the RIAA with little backlash.

The big question for 2004 is — is this still true? Will voters realize that the ultimate responsibility for civil liberties in the United States lies not with courts, or lawyers, or the ACLU or anyone else, but with each and every one of us who has the privilege to vote.

Stay tuned . . . .