Copyright, Done Right: Warrantless Factory Searches Aren’t the Right Way to Stop DVD Piracy

California police will now be able to conduct warrantless searches of optical disc (DVD, CD, BluRay) factories to look for piracy and seize pirated discs, under a bill just signed by California Governor Jerry Brown (full text). Even those who think copyright law has gone much too far, or cherish fair use, shouldn’t defend such blatant, commercial piracy, which does nothing but deny creators the market for their artistic products. One need only look at China to see how such infringement can destroy creative industries.

The bill’s sponsors justify this law as necessary to enforce existing laws that require manufacturers to label discs so their origin and validity can be established. That seems like a reasonable requirement and one worth enforcing.  But like the Electronic Frontier Foundation, I’m highly skeptical the courts will uphold the constitutionality of this law. And I worry about the consequences of upholding warrantless searches. The debate centers on whether optical disc manufacturing qualifies as a “closely regulated industry” under New York v. Burger, 482 U.S. 691, 701. (1987). The sponsors argued:

In determining whether a particular industry is closely regulated, the Court looks to a history of regulation in the industry as well as the hazardous nature of the industry. Examples of closely regulated industries that fall under this exception include auto dismantling yards and the mining industry. Here, the optical disc manufactures are subject to the provisions of chapter 11.5 of the Business and Professions Code, as well as 653h and 653w of the Penal Code [California’s anti-copyrighting laws]. These manufacturers are also subject to federal copyright restrictions. These provisions may be enough for a court to determine that this industry is closely regulated, and therefore, potentially subject to administrative searches.

That’s a pretty weak argument—and one that could sweep in a wide variety of other industries, including media. That analysis goes on to allege that the searches and seizures authorized by the bill would be reasonable, which EFF also disputes on all points. As a subsequent California Senate committee counsel’s official legal analysis noted, “It is unclear whether this bill, which allows law enforcement to search private property without a warrant, would stand up to a constitutional challenge.” That official analysis, which covers both sides of the argument goes on to note (p. 7) the First Amendment problems raised by deeming any media business, including those that only manufacture physical media, as “closely regulated.”

The bill’s sponsors make a second argument that would set an even more dangerous precedent:

Additionally, California courts have held that an industry need not be closely regulated if the industry is newer and involves a “high risk of illegal conduct or of serious danger to the public.” Currier v. City of Pasadena, 48 Cal. App. 3d 810, 814 (Ct. App. 1975). Here, because of the high number of pirated optical discs, the searches could fall under this exception to a warrant requirement.

In other words, piracy is a big enough problem, in terms of total number of discs pirated, not necessarily prevalence of manufacturers engaging in piracy, that the Fourth Amendment just doesn’t apply. The rationale is essentially what the Fourth Amendment was designed to thwart: On the eve of the American Revolution, the British decided that widespread circumvention of the Stamp Act, etc., and the widespread distribution of seditious, anti-British literature presented what they probably would have referred to as a “high risk of illegal conduct or of serious danger to the public.” They engaged in widespread warrantless searches. We fought a war against them—and won. Our victory was perfected in passage of the Fourth Amendment, which itself was inspired by similar protections in George Mason’s Virginia Declarations of Rights. So many creative legal ideas developed in California, I’m pretty skeptical the U.S. Supreme Court will accept this justification for widespread warrantless searches.

This sort of pernicious thinking extends well beyond copyright. TechFreedom has joined fifty-two other organizations and companies, as well as a number of leading law professors, in the Digital Due Process Coalition, a philosophically diverse array of groups that all agree on the need to stop warrantless searches of remotely held data. The principles apply just as much in the digital era as in 1776. Law enforcement should have to meet the Fourth Amendment’s requirements for searches and seizures.

As someone really sympathizes with the artists whose livelihoods are destroyed by wholesale copying of optical discs, I also fear this draconian action will cost copyright holders the moral high ground in the piracy debate. Among the strongest points generally made by what EFF and other copyright skeptics derisively (and unhelpfully) refer to as “Big Media” is that blatant copyright infringement undermines respect for the rule of law. They’re exactly right. But no one will take that argument seriously unless copyright holders themselves obey the law—the highest law of the land—the Constitution.

As always, the challenge remains: how do we enforce copyright laws to serve the Constitutional’s goal of promoting the “Progress of Science and useful Arts?” I’ve yet to hear why law enforcement can’t thwart disc piracy within the bounds of warrant requirement that governs the rest of their activity. One might argue, for example, that law enforcement should have to meet a lower standard of proof (than “probable cause”), given the diminished expectation of privacy in commercial optical disc manufacturing. I’d be worried about the implications of that argument, too, but it would be a better one.

But again, the problem cited by the bill’s sponsors seems to be enforcement of existing labeling laws. So if that’s the problem, bypassing the warrant requirement seems to make it only somewhat easier and cheaper for law enforcement to inspect factories. So why not make sure law enforcement has the resources it needs to follow constitutional procedures? That’s a much better solution that creating the apparatus of surveillance that will be used for many other nefarious purposes—if not here in the U.S., then in the many other countries around the world with governments eager to find the pretense of legitimacy for their snooping, or another tool of “soft power” to exert over the private sector. I’d challenge EFF and other copyright skeptics to offer alternative proposals for stopping blatant piracy while respecting the Fourth Amendment.

Sen. Joe Lieberman was able to strong-arm Amazon and other companies to cut off hosting service to Wikileaks not because of any legal authority, but because of the many forms of soft power the U.S. government held over Amazon. Warrantless searches create the worst sort of soft power, because they allow governments to conduct a “fishing expedition” through a company’s records and facilities. Look hard enough and you’ll eventually find something to charge them with—or just plant the evidence. That might not happen in California, but it happens all the time around the world.