A decision by Teksavvy not to fight a motion puts subscribers’ privacy at risk

A Canadian reader alerted me that there’s a hearing scheduled in a Canadian court tomorrow (Monday) that will likely be of interest to this blog’s readers.

Copyright lawyer Harold Knopf provided the background on the case, in which Voltage Pictures’ filed a motion to compel an ISP, Teksavvy, to disclose the names and addresses of 2,000 subscribers who are currently identified only by IP address. The lawsuit is based on P2P filesharing via BitTorrent, and Voltage’s claim states that once it has obtained the Doe defendants’ names and addresses, it will seek a financial accounting of how much they profited by distribution of their works. Because most people are seeding but not actually obtaining direct financial remuneration, I’m not clear where Voltage is going with this, unless they intend to argue that someone who seeds X movies Y times owes them $$$ based on a per movie cost?

Disturbingly, to privacy advocates, subscribers, and Howard, the ISP decided not to fight the motion.  Knopf  wrote:

Although Teksavvy has indicated that it “will not provide personal information to a 3rd party when copyright infringement is alleged unless ordered to do so by a court”, it has, however, decided in the end not to oppose the motion seeking such an order. It has decided not to cross-examine on Voltage’s affidavit material and not to file any written material.

Teksavvy explained their decision not to oppose in a blog post, but their explanation disappointed those who hoped for a more vigorous defense of subscriber privacy. The firm did fight for more time to notify consumers so that they could move to quash, which is something that Twitter has often done here in the U.S. But despite a defense by subscriber David Ellis, most opinion seems to be running against the ISP’s decision.

As Knopf also noted last month, CIPPIC requested permission from the court to intervene in the case.

In an update today in anticipation of tomorrow’s hearing, Knopf responds to Ellis’s defense. His first statement really says  all that needs to be said:

There isn’t much difference between not opposing and supporting a motion. Whatever the difference is, it really doesn’t normally matter for practical purposes. A motion that is not opposed will usually be granted.

But perhaps Howard’s strongest statement is contained in a blog post he wrote Friday, where he wrote, in part:

Generally speaking, the real issue now is under what circumstances, if any, an ISP is expected or maybe even required to take reasonable steps to safeguard its customers’ privacy. If an ISP can successfully and inexpensively oppose an inadequately documented attempt to breach its customers’ privacy, then why should it be able to walk away and leave its customers on their own and just tell them they can hire their own lawyers? It’s the ISP’s duty under the PIPEDA federal privacy legislation to protect its customers’ privacy. That presumably does not mean simply telling them that their privacy is about to breached, that they are on their own and are free to get a second mortgage and hire their own lawyer.

So has Teksavvy done enough to protect its subscribers’ privacy? We’ve certainly seen U.S. ISP’s simply notify users without fighting motions or subpoenas, but does Canada’s PIPEDA impose more stringent obligations on Canadian ISPs?