Filtering For Copyrighted Content and Liability Under the Wiretap Act:
The New York Times "Bits" Blog reports:
  At a small panel discussion about digital piracy here at NBC's booth on the Consumer Electronics Show floor, representatives from NBC, Microsoft, several digital filtering companies and telecom giant AT&T said the time was right to start filtering for copyrighted content at the network level.
  Such filtering for pirated material already occurs on sites like YouTube and Microsoft's Soapbox, and on some university networks.
  Network-level filtering means your Internet service provider -- Comcast, AT&T, EarthLink, or whoever you send that monthly check to -- could soon start sniffing your digital packets, looking for material that infringes on someone's copyright.
  "What we are already doing to address piracy hasn't been working. There's no secret there," said James Cicconi, senior vice president, external & legal affairs for AT&T.
  Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.
  "We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this," he said. "We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there."
  I hope that "open discussion" includes a frank discussion of legal liability under the federal Wiretap Act.

  The Wiretap Act makes it a federal crime and a civil wrong permitting the recovery of punitive damages and attorney's fees for intercepting the contents of a person's communications over an interstate communications network. Although there are no cases directly on this, network-level scanning of traffic for copyrighted content is likely to be deemed an "intercept" of the contents of communications. And while there are exceptions for interceptions by parties to communications (18 U.S.C. 2511(2)(d)) and for monitoring narrowly tailored to protect the network provider (18 U.S.C. 2511(2)(a)(i)), it's hard to see how those exceptions would apply to network-level monitoring for copyrighted information.

  To avoid liability, these providers probably would need to amend their Terms of Service so that users would explicitly consent to allowing their ISPs to monitor them for copyright violations. Assuming customers didn't revolt against this, that would permit monitoring under the consent exception, at least when a user who actually signed the contract was being monitored. But even the explicit okay in the Terms of Service wouldn't allow all monitoring. The consent would only cover those who signed the contract and the parties to communications with them, and would not automatically extend to those who used the network but had not consented (such as family members of those who agreed to the ISP contract). And of course the ISPs wouldn't know who was being the keyboard, so they would never know if the monitoring was lawful.

  I suppose ISPs could then argue that the monitoring was not an "intentional" intercept, as required by the statute, 18 U.S.C. 2511. But that raises a difficult question of how the mens rea requirements of liability interact with the consent exception — in particular, whether an intentional interception that is not intentional as to the lack of consent counts as intentional. I don't know of any cases on this, but off the top of my head it seems like a 50/50 issue. And then there's the issue of liability under state wiretap laws that go beyond the federal wiretap act, and especially those that require all party consent to monitoring.

  Would ISPs risk massive liability under the Wiretap Act to try to combat copyright infringement? I can't imagine why they would do that, but I suppose that's a question to ask them and their lawyers.

  Thanks to Instapundit for the link.