So far, we've seen lots of Congressional Representatives falling over each other to attack Ed Snowden and Glenn Greenwald over the NSA surveillance efforts. A few have raised concerns, but if you want to see an elected official say what's on many of our minds, listen to Rep. Alan Grayson's speech about the NSA scooping up all phone records. He points out that the NSA is only supposed to be collecting foreign data, highlights how extreme it is that they're collecting all phone records and says that he's shocked this is happening.

Let's be clear about this. This appears to be an order, providing that our telephone companies turn over call records for every single telephone call, regardless of whether it's international or not. Now, if someone had come to me nine days ago and said, 'Congressman Grayson, do you think that the Defense Department is taking records of any telephone call that you make or I make?' I would say 'no, I have no reason to believe that. It would shock me if it were true.' Well it is true and it DOES SHOCK ME. Why should we have our personal telephone records, the records of who we call, when speak to them, how long we're talking... why should we have that turned over to the Defense Department?

What possible rationale could there be for that?

Well, I'll tell you what I think their rationale would be: "because somehow that makes us safer." Well, let me say to the NSA and the Defense Department: there is no threat to America when I speak to my mother.

It goes on, in much greater detail about why this is such a problem. He points out that the order "clearly violates the 4th Amendment," which is the first time I've seen a politician finally admit that. He highlights that there's no probable cause and no particularity, as required by the 4th Amendment. And, for those who immediately, like rote, spout out Smith v. Maryland and the third party doctrine, Grayson responds to that as well, calling those who make that argument a "farce," noting the differences in that case, which involved seizing a single record once, not all records all the time.

Towards the end of his speech, he notes that the intelligence agencies have a long history of abusing surveillance:

You know, this is not the first time we've had this problem. This is not the first time that the government has entered into surveillance on people without probable cause. Many of us remember that there was FBI surveillance of Dr. Martin Luther King, including wiretapping and bugging his personal conversations. I thought -- perhaps naively -- that we'd moved beyond that. And, in some sense, we have moved beyond that. Because now, they're doing it to everyone.

One could well say that we are reaching the point where Uncle Sam is Big Brother.

...though its proponents depict this is American as apple spy (sic?), this program is an anti-American program. We are not North Koreans. We don't live in Nazi Germany. We are Americans and we are human beings. And we deserve to have our privacy respected. I have no way to call my mother except to employ the services of Verizon or AT&T or some other phone company... that doesn't mean that it's okay with me for the government -- and specifically the Department of Defense -- to be getting information of every phone call I make to her. It's not okay with me.... and I know for most of the people listening today, it's not okay with you either.

As he concludes: "this has gone way too far."

As more and more details come out about PRISM, it appears that the attention and blame really belongs on the government, rather than the tech companies (for the most part). While it was known that an unnamed company had fought back against FISA Court orders back in 2008, the name of the company was not known. However, now the NY Times is reporting that Yahoo! fought back against being told to provide info on users, until the court ruled against them -- and the ruling (as an unnamed company and with details heavily redacted) was then released to put other companies on notice that they, too, had to comply. The rubber stamp FISA Court insisted that there was nothing wrong with the requests, saying that Yahoo's concerns were "overblown."

“Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse,” the court said, adding that the government’s “efforts to protect national security should not be frustrated by the courts.”

As the article points out, Google and Twitter have also fought back against various attempts by the federal government to reach deep into their databases -- and, in both cases, have lost those lawsuits.

Of course, it appears that some companies, like Microsoft and the telcos are much more comfortable with providing info to the government.

It really seems like the focus of concern should very much be on the government's requests here, as well as the secret FISA court and its rubber stamp, given that companies that have tried to fight back against the government keep losing.

Bloomberg came out with quite a bombshell last night, discussing how lots of tech companies apparently work with the NSA and other government agencies, not to pass data on users over to the government, but to share exploit information, sometimes before it's public or patched -- in some cases so it can be useful for the US government to use proactively. Last month, we had written about how the feds were certainly collecting hacks and vulnerabilities for offensive purposes, but it wasn't clear at the time that some of these exploits were coming directly from the companies themselves.

The report names one major participant: Microsoft:

Microsoft Corp. (MSFT), the world’s largest software company, provides intelligence agencies with information about bugs in its popular software before it publicly releases a fix, according to two people familiar with the process. That information can be used to protect government computers and to access the computers of terrorists or military foes.

Redmond, Washington-based Microsoft (MSFT) and other software or Internet security companies have been aware that this type of early alert allowed the U.S. to exploit vulnerabilities in software sold to foreign governments, according to two U.S. officials. Microsoft doesn’t ask and can’t be told how the government uses such tip-offs, said the officials, who asked not to be identified because the matter is confidential.

That's fairly incredible. You'd expect Microsoft and other tech companies to be focused on fixing the bugs first, not letting the NSA exploit the vulnerabilities on foreign computers.

The same report, once again, implicates the big telcos for their cushy relationship with the intelligence community -- in which the telcos willingly and voluntarily hand over massive amounts of user data. There's no oversight here, because the telcos apparently have no problem dismantling the privacy of their users.

Some U.S. telecommunications companies willingly provide intelligence agencies with access to facilities and data offshore that would require a judge’s order if it were done in the U.S., one of the four people said.

In these cases, no oversight is necessary under the Foreign Intelligence Surveillance Act, and companies are providing the information voluntarily.

The article later notes that the big telcos -- AT&T, Verizon, Sprint, Level3 and CenturyLink -- have all agreed to participate in a program called Einstein 3, which analyzes metadata on emails, but that all of the companies asked for and received assurances that participating wouldn't make them liable for violating wiretapping laws.

Before they agreed to install the system on their networks, some of the five major Internet companies -- AT&T Inc. (T), Verizon Communications Inc (VZ)., Sprint Nextel Corp. (S), Level 3 Communications Inc (LVLT). and CenturyLink Inc (CTL). -- asked for guarantees that they wouldn’t be held liable under U.S. wiretap laws. Those companies that asked received a letter signed by the U.S. attorney general indicating such exposure didn’t meet the legal definition of a wiretap and granting them immunity from civil lawsuits, the person said.

Suddenly the "blanket immunity" clauses in CISPA make a lot of sense. The whole point of CISPA, it appears, is to further protect these companies when this kind of information comes out.

During a cybersecurity hearing yesterday in the Senate, NSA boss General Keith Alexander was asked a bunch of questions about the NSA surveillance scandal. At one point, he claimed that he didn't have an exact number of cases in which the dragnet of information collected had stopped terrorist activity, but that it was "dozens" and that he would provide more info in a classified session (held today). However, Senators Ron Wyden and Mark Udall -- both on the Senate Intelligence Committee, and both paying close attention to these issues -- have put out a statement today saying that they've seen no evidence of this and they'd like General Alexander to clarify.

"We have not yet seen any evidence showing that the NSA's dragnet collection of Americans' phone records has produced any uniquely valuable intelligence. Gen. Alexander's testimony yesterday suggested that the NSA’s bulk phone records collection program helped thwart 'dozens' of terrorist attacks, but all of the plots that he mentioned appear to have been identified using other collection methods. The public deserves a clear explanation," Udall and Wyden said. "We look forward to reviewing the analysis that the general has promised to provide showing how the intelligence community arrived at these numbers. In our view, a key measure of the effectiveness of the bulk collection program will be whether it provided any intelligence that couldn’t be obtained through other methods."

There's a big distinction in there that many defenders of the program -- both politicians and press -- keep glossing over. The question is not whether the data itself was ever used in terrorist investigations, but whether or not this particular dragnet program was necessary to obtain that information. Law enforcement has had legal means of getting specific information for decades without having to resort to collecting all information to sift through later.

As the various details have come out about the NSA leaks, many people are focused on PRISM, but it's pretty clear that the really big revelation so far was in how the telcos -- Verizon and AT&T being the big ones -- have continued to cooperate closely with the government, more or less handing over all their data to the NSA. That had already been alleged years ago, by AT&T technician Mark Klein, but many in the public and the press had ignored that until the leaks last week revealed the FISA Court's order to Verizon, demanding all records. Declan McCullagh, over at News.com, is pointing out a key point: while the tech companies have loudly denied handing over tons of data to the feds, notice that AT&T and Verizon have remained silent.

The Internet companies have asked Attorney General Eric Holder to lift secrecy restrictions on 702 orders so they can clear their name, in part by disclosing how many records they have turned over in response to legal process. Google sent an open letter to Holder yesterday, and Facebook and Microsoft have also asked the Justice Department for permission to divulge summary statistics. Holder has not responded.

By contrast, AT&T never asked for permission to disclose NSA surveillance. Instead, Deputy Assistant Attorney General Carl Nichols said during a 2006 court hearing in San Francisco that a discussion of all the "facts" about NSA surveillance could only happen in a classified setting. The Bush administration asked that the case be tossed out on "state secrets" grounds.

Neither did Verizon, which has secretly turned over daily logs of all customers' phone calls to the NSA, according to a court order that the Guardian published last week. When USA Today disclosed in 2006 that NSA was vacuuming up phone logs, Verizon didn't deny it. Instead, a spokesman told the newspaper only that "we do not comment on national security matters."

Now, perhaps it's reasonable to question whether or not the statements from the internet companies are completely accurate, but they've been increasingly specific in their denials. On the flip side, the telcos haven't issued any denials at all, and, given the evidence that Klein presented seven years ago, you can see why they might not have grounds to issue a denial. The remaining silence, however, speaks volumes.

There have already been a few lawsuits filed about the various NSA surveillance revelations of the last week, but one to watch closely is the lawsuit filed yesterday by the ACLU on its own behalf. The ACLU frequently represents others, but in this case, it notes that it's a Verizon customer, so the mass sucking up of all phone call records on Verizon directly impacts the ACLU.

"This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens," said Jameel Jaffer, ACLU deputy legal director. "It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy."

The ACLU is a customer of Verizon Business Network Services, which was the recipient of a secret FISA Court order published by The Guardian last week. The order required the company to "turn over on 'an ongoing daily basis' phone call details" such as who calls are placed to and from, and when those calls are made. The lawsuit argues that the government's blanket seizure of and ability to search the ACLU's phone records compromises sensitive information about its work, undermining the organization's ability to engage in legitimate communications with clients, journalists, advocacy partners, and others.

As we had just pointed out, the ACLU lost its case before the Supreme Court on this very subject (the Constitutionality of the FISA Amendments Act) just a few months ago, because the Supreme Court argued that the plaintiffs in that case (Amnesty International) only had speculation that its lawyers had their records monitored. But here, the ACLU rightly points out, it now has the evidence that the ACLU's calls were sucked up in this dragnet.

In other words, this time, there should be no issue of "standing" to deal with.

Of course, the feds will respond the way they normally do in such cases: claiming national security and sovereign immunity. That's what let the feds off the hook on the only other case where evidence of actual monitoring had been leaked, and where the "standing" issue wasn't in dispute. In that case, an appeals court ruled, basically, that the government never actually has to have the Constitutionality of such laws determined in court, because it can claim sovereign immunity to kill off any such lawsuits. If that seems like a crazy result, you'd be correct. That ruling was in the 9th Circuit. This new case is being filed in the Southern District of NY, which is in the Second Circuit. Hopefully, the court rules the other way, setting up a Supreme Court case to resolve the circuit split. Unfortunately, the Supreme Court isn't known for being particularly great at protecting civil liberties lately, so even that may be risky. But, at least there's a chance.

Whenever overreaching surveillance comes to light, whether it's a national security agency or local law enforcement operating the dragnet, there's always one person who will toss out one of these two worn out, used up, dripping-in-paternal-condescension phrases in defense of the privacy abusers.

1. If you've got nothing to hide, what are you worried about?
2. Because terrorism/crime/drugs/child porn.

Sen. Lindsey Graham, usually a critic of the current administration, tends to fall back in line with his allegiances to George W. Bush's overreaching policies during events like these. If it has anything to do with terrorism, Graham is there to back up the abusers, no matter which party has control of the White House. (You may recall Graham's recent support of the FBI's decision to not inform Boston bombing suspect Dzhokhar Tsarnaev of his Miranda rights.)

Graham made an appearance on Fox & Friends the morning after news of the NSA's massive data haul broke. He starts out by invoking the most holy of political rhetorical devices: fighting terrorism.

“I’m glad the NSA is trying to find out what the terrorists are up to overseas and in our country,” Graham said Thursday morning on “Fox & Friends."

He followed it up with his particular spin on the "nothing to hide; nothing to fear" argument defuser.

As a customer of Verizon, the subject of the court order, Graham said he and others had nothing to worry about.

“I’m a Verizon customer. I don’t mind Verizon turning over records to the government if the government is going to make sure that they try to match up a known terrorist phone with somebody in the United States. I don’t think you’re talking to the terrorists. I know you’re not. I know I’m not. So we don’t have anything to worry about.”

A member of the government informing the public that he has no problem with the public handing over things to the government. How refreshing!

There's a big "if" in his second sentence and that part worries people nearly as much as the general idea of national security/investigative agencies hoovering up all the data they can get ahold of.

"If the government is going to make sure that they try..." We, the people, have received no assurances to that effect. Sure, those involved directly and those defending these court orders are all stating publicly that the data is perfectly safe in their hands and won't be abused in the slightest (and quite possibly isn't actually happening at all), but the last dozen years or so have produced much more evidence to the contrary.

As far as he knows, Graham isn't talking to terrorists. But there's really no reason for anyone to believe the NSA and FBI are only interested in terrorists. The NSA may be trying to root out and punish whistleblowers. The FBI may be looking for any phone that's come within 500 feet of a mosque.

As for telling us that we have nothing to fear and, therefore, nothing to hide? Here's the problem with that argument. First off, if I'm not talking to terrorists, why is my data being grabbed along with potential suspects? This is still an anti-terrorism thing, right?

[Sidebar: I don't think I could really say I definitely don't communicate with terrorists. I don't have any friends or acquaintances who display an inordinate fascination with terrorism. On the other hand, if they were terrorists, I would imagine that part of their life is pretty well compartmentalized and that there's more to their life than terrorism 24/7. So... unlike Graham, I'm not going to say I don't talk to terrorists. Ultimately, this shouldn't matter, but Graham seems to think it does.]

Second: I am getting pretty sick and tired of talking heads trying to mollify us by informing us that we have nothing to fear because we have nothing to hide, especially since this phrase is only put into play after the government's encroachment has effectively removed the "hide" option. It's not so much that we have "nothing to hide." It's that we don't have a choice. The government exposes us and then pats us on the head and tells us it will all be alright -- because we're innocent. (And yet somehow still subject to the same treatment as the guilty...)

Third, I'm glad you're glad that we're fighting terrorism by using everyone's data, Lindsey. Since the President has informed us that Congress holds the keys to this whole debacle (in a roundabout way), maybe you could stop assuring us that everything's OK (as long as you're not a terrorist and/or talking to one!) and that we should all aspire to be good little nothing-to-hide citizens, and start rolling back this ongoing, ever-expanding encroachment on our rights and liberty. Maybe start by asking why, if you don't "talk to terrorists," is your data being gathered in the name of fighting terrorists?

This shouldn't be a surprise to anyone, but the NSA's spying on Verizon call logs were not, of course, limited to just Verizon. The WSJ has confirmed that AT&T and Sprint are both under similar orders. That article also says that a number of internet firms and credit card companies are participating as well.

And, of course, as the story gets bigger and bigger, we're now getting quotes from ex-government officials saying that even they are surprised at how comprehensive the surveillance appears to be.

“It looks from what I’ve seen to be larger than anything I thought we were doing,” says Paul Rosenzweig, author of a recent book, Cyber Warfare.

Rosenzweig should know. As a former acting assistant secretary at the Department of Homeland Security, he was one of those people given the kind of Top Secret / Sensitive Compartmented Information clearances needed to work on any project as sensitive as this. But, he says, “I wasn’t read in on this.”

I heard the same basic thing from another ex-government official, who didn't want to be named, who had some knowledge of these kinds of programs back at the beginning in the 2008/2009 timeframe -- saying that if what's being said is true, the program has greatly expanded from where it originated.

What's always been suspected has now been proven true: the NSA is indiscriminately harvesting the phone records of millions of Americans. Various whistleblowers have pointed out that the NSA's hunger for data has driven it to collect anything and everything it can, without having to submit to limitations placed on other agencies. Domestic surveillance is a full-time job for the NSA, and this order obtained by the Guardian spells it all out in unredacted black and white.

The order... requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing...

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

This order was granted by the secret FISA court, allowing the FBI to collect this data until July 19th, with another copy going to the NSA. This sort of thing isn't necessarily new or unusual (large scale data collection like this began during the Bush presidency, as Greenwald points out), but this particular request's scope is rather breathtaking.

The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

This order has no target. It just wants everything. Every Verizon subscriber is included in the NSA's data dragnet. And while there's a lack of individual specificity in the data Verizon is ordered to produce, there are several ways the information collected can be manipulated and abused.

The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access...

While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively...

Privacy advocates have long warned that allowing the government to collect and store unlimited "metadata" is a highly invasive form of surveillance of citizens' communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication.

A year ago, the NSA claimed it couldn't say how many Americans it had spied on illegally because doing so with violate the privacy of those it spied on. Now, we can make an estimate: 98.2 million Verizon customers as of Dec. 2012. And that's just Verizon. There's no reason to believe other carriers haven't received (and submitted to) similar orders and past events indicate the NSA has been spreading its net wide for several years. And, of course, thanks to a whistleblower literally showing up at the front door of the EFF, we know that AT&T has basically helped set up direct access for the NSA on its network in the past as well.

The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity."

With this document exposed, the NSA can no longer pretend (if it's even bothering to at this point) its data collection efforts are targeted. It long ago turned away from its original mandate -- foreign surveillance only -- and now appears to be harvesting vast amounts of data on US citizens simply because no one's going to stop it.

You may recall Judge Beryl Howell, the former RIAA lobbyist who helped author the DMCA, and also went against a very large number of other judges dealing with copyright trolling lawsuits by ruling that it was perfectly fine to lump over 1,000 John Doe defendants into a single lawsuit and then get discovery on them for the purpose of shaking them down for payment. While so many other courts have ruled that such lumping together is an abuse of the legal system in misjoining unrelated parties, Howell not only stuck to her guns, but then proceeded to blame ISPs for copyright trolls, suggesting that if they just did more to crack down on infringing, trolls wouldn't be a problem.

What you may not remember is that the key case in which Howell did this happens to be a case involving... you guessed it... AF Holdings and its "law firm" Prenda Law. Oh, and the "copyright assignment" that AF Holdings is using for this case was one of those supposedly signed by... Alan Cooper. While Judge Howell may be well served to pay attention to Judge Otis Wright in California and his actual investigation into Prenda/AF Holdings/Alan Cooper, the case is out of her hands for now, as the various ISPs who have the info in this particular case have appealed Howell's ruling and the EFF, ACLU, Public Citizen and Public Knowledge have stepped in as well with additional arguments in an amicus brief.

Both briefs are well worth reading, though you might be surprised that the amicus brief is probably the more reserved of the two. The ISPs who took part include: Bright House, Cox, Verizon, AT&T and Comcast -- with most of them (Verizon and Comcast being the exceptions) not even providing service in the jurisdiction of the district court: Washington DC. Comcast joining in is interesting, given that they own NBC, but we'll leave that aside for now. To put it mildly, the ISPs think the appeals court should put an end to these kinds of cases, noting that a majority of other courts have refused to allow joinder on so many defendants, and have blocked the discovery process. It points out, of course, that these cases are almost never taken to court, but are usually just used to reveal names and then offer settlement demands. Specifically, they feel that Howell made a pretty big legal mistake, in that a showing of "good cause" is required for discovery, and Howell ignored that.

The district court’s conclusion that rules governing personal jurisdiction and venue provide no impediment to pre-Rule 26 discovery of the ISPs is legal error. A showing of “good cause,” which is required for discovery ostensibly intended to identify defendants, requires an evaluation of whether the information sought from the ISPs would be used to name and serve defendants in the forum. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352-53 & n.17 (1978) (where “the purpose of a discovery request is to gather information for use in proceedings other than the pending suit, discovery properly is denied”). The Copyright Act and the District of Columbia’s long-arm statute limit the court’s reach to defendants who reside in the district. And the uncontroverted evidence before the district court showed that few, if any, of the targeted Internet subscribers reside in the District of Columbia—as publicly available geolocation software used by Plaintiff’s counsel in other cases confirms. The district court’s decision to defer any consideration of personal jurisdiction or venue until after the subscribers’ personal information had been disclosed to Plaintiff requires reversal.

The court’s decision to permit discovery of the ISPs before deciding whether the 1,000-plus “Does” are misjoined provides an additional basis for reversal. Plaintiff, by routinely declining to name and serve defendants after obtaining the subscribers’ personal information, virtually ensures that Rule 20’s requirements for joinder will go unaddressed if not evaluated at the outset. And as a growing majority of courts have concluded, deferring a ruling on joinder deprives the courts of filing fees and encourages a proliferation of improperly coercive lawsuits. Given the groundswell of published opinions that disagree with the lower court and have severed or dismissed non-resident “Does” or all Does except for “Doe No. 1,” deferring a ruling on joinder in a suit that seeks nationwide subscriber information also encourages forum shopping—as the record here shows persuasively.

The ISPs also, quite reasonably, point out that if mass joinder and discovery is allowed in this case, the trolls will descend on the DC Circuit courts in a mass forum shopping situation:

The record reflects that Plaintiff’s counsel’s cases have migrated across the country, with the venues selected, not by the locus of the parties or situs of harm, but based on counsel’s perceptions of which forum is most likely to authorize the greatest discovery, at the lowest cost, with the least judicial oversight.

The specter of intra-district, judge-specific shopping in Plaintiff’s counsel’s cases further underscores the problem with the lower court’s approach. The ISPs raised below Plaintiff’s counsel’s practice of filing complaints and dismissing them vel non based on the judicial assignment—only to re-file in another court. When presented with the same facts, Judge Wilkins quoted with approval Judge Huvelle’s finding: “Plaintiff’s actions a[re] akin to ‘judge shopping.’… This Court could not agree more.” ...

The ISPs respectfully submit that the district courts in this Circuit should not be the destination for 1,000-plus Doe cases that are brought primarily to compile mailing lists—not to adjudicate actual cases or controversies.

The ISPs also go through, in detail, the accusations against Team Prenda, and the claims of Alan Cooper. As it notes:

AF Holdings and its counsel owe a duty of candor to the Court, and a duty of fairness to appellants.... The serious issues concerning attorney misconduct and potentially forged documents were not identified for the court below; they necessarily affect the “good cause” analysis and provide an alternative basis for reversal to address the evidence now being considered in the pending disciplinary proceedings in the Central District of California.

The EFF/ACLU/PK/PC filing is more focused on the specific errors in Howell's ruling, concerning the "good faith" standard for discovery and the mass joinder of over 1,000 people. They also point out the jurisdiction problems of the defendants who are clearly outside the jurisdiction of a DC court -- and the fact that these cases rarely end up in actual lawsuits means that the question of proper venue will not be "cured" later. Finally, the brief argues that Howell ignored key First Amendment issues concerning revealing anonymous internet users, and the higher standard for them to be revealed. This argument wasn't made by the ISPs, so we'll focus on that one here. It points to the key Dendrite standard we've discussed many times before concerning the revealing of anonymous users. This does not mean that you cannot identify those accused of copyright infringement, but rather that you can't go on a random fishing expedition to get names, as many copyright trolls have done.

Specifically, in a series of cases beginning with Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756, 760-61, 342 N.J. Super. 134 (App. Div. 2001), courts have adopted a balancing standard to assess requests for early discovery to identify anonymous online speakers that protects the right to speak anonymously while at the same time ensuring that plaintiffs who have valid claims are able to pursue them. Without such a standard, abusive plaintiffs could too easily use extrajudicial means against defendants from whom they could not, in the end, obtain judicial redress. See Levy, Litigating Civil Subpoenas to Identify Anonymous Internet Speakers, 37 Litigation No. 3 (Spring 2011).

The use of BitTorrent to select and share movies is expressive and, therefore, protected by the First Amendment. Call of the Wild Movie, 770 F. Supp. 2d at 350 (“[F]ile-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity.”).

Although the expressive aspect of the conduct alleged here – the posting of copyrighted movies to BitTorrent – is somewhat minimal, that does not mean that discovery to identify the anonymous user without adequate initial evidence that individual Doe Defendants committed the alleged infringement. The weakness of AF Holdings’ assertions of personal jurisdiction and proper joinder means that First Amendment concerns weigh more strongly here in favor of quashing the subpoenas. Certainly it was not appropriate for the district court to ignore the question altogether.

It will be interesting not only to see how the appeals court deals with it... but also Prenda's argument, since they seem to be getting more and more wacky lately.