TECHNOLOGY POLICY, INTERNET PRIVACY, AND THE FEDERAL RULES OF CIVIL PROCEDURE

Abstract

Technology policy, while perhaps not as high-profile as the war in Iraq or health care, was an important issue in the 2008 presidential campaign. Though technology policy is a broad field that encompasses everything from broadband proliferation to patent reform, the major presidential candidates addressed the necessary balance the government must strike between privacy and other national interests. This was particularly true of candidates who served in the U.S. Senate. In that body, a bill, S. 2248, which proposed retroactive immunity for telecommunications companies who opened up their networks to intelligence agencies in violation of federal privacy law, was introduced during the height of the primary campaign season. Senator John McCain, commenting on that bill, stated that he was "a strong supporter of protecting the privacy of Americans" and, even if retroactive immunity was justified in that particular case, "Congress should include provisions that ensure that Americans' private records will not be dealt with like that again. Similarly, Senator Barack Obama announced that, as president, he would "strengthen privacy protections for the digital age and . . . harness the power of technology to hold government and business accountable for violations of personal privacy." But while the candidates discussed the tension between privacy rights and the war on terror, they said little about how a similar tension between privacy and other governmental objectives should be resolved in the context of civil litigation. This issue has become especially important in recent years, as plaintiffs are increasingly using the civil subpoena process to force anonymous Internet speakers to unveil their identities. Yet neither the Federal Rules of Civil Procedure nor comparable legislation address the issue of when Internet intermediaries must be compelled to provide private information about Internet users to litigants.