Tuesday, March 11, 2008
Limits to Depending on Europe
In this post I posited that U.S. consumers might benefit from Europe's generally more protective attitude towards individual privacy. However a court case from last year dealing with obligations to turn over material in litigation demonstrated that there are limits to relying on European privacy laws. The case was Columbia Pictures v. Bunnell, and it was part of the ongoing battle that record companies have been fighting against peer to peer networks. In this case, Bunnell decided to put his server in the Netherlands, hoping that that country's relatively strong privacy laws would benefit his customers if the MPAA ever came calling. It turns out that that strategy doesn't work when you're sued in the U.S. As the court emphasized in ordering Bunnell to produce records of his customer's requests, "it is well settled that foreign blocking statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce (let alone preserve) evidence even though the act of production may violate that statute" (emphasis added). The bottom line: if you care about privacy, you need to fight for it at home (wherever that may be), because depending on foreign standards to protect you won't work if you're before a local judge who sees privacy as simply an obstacle to the proper function of the law.