These are precedents that are not easily undone. While Viacom’s lawyers say they do not want the private user data to pursue suits against individual YouTube users, there is nothing to prevent them from doing so, and it is hard to imagine that they will not.

This is another example for Americans’ need to have their constitutional rights affirmed online, so that there is no inconsistency in their rights whether they are exercised by citizens in the public square or on the Internet.

This slow unraveling of Americans’ rights by the courts and government must be prevented by our Congress with a Digital Rights bill, making it clear that your rights cannot be compromised by our government, industry or by any individual.

Links:
AP: Court orders YouTube to give Viacom video logs 
NY Times: One Subpoena Is All It Takes to Reveal Your Online Life
FindLaw: Viacom v YouTube/Google

In the aftermath of this defeat, iMEGA has been asked to comment on the situation in Washington DC:

iMEGA stated our support for Rep. Barney Frank’s legislation (HR 2046 and HR 5767), but rather than just be another voice in the crowd on that issue, we’re focusing our resources on our litigation (iMEGA v. Gonzales, et al) instead of lobbying. To do otherwise weakens our effort in the Courts.

iMEGA’s members and supporters have always believed that the best way to defeat UIGEA was in Federal Court. In “Round One” of our fight, the Court recognized our standing (which most of the industry and their attorneys said we’d never get). Our case was dismissed, but the Judge never addressed our arguments - that’s why we’re headed to the Third Circuit Court of Appeals.

When we look at it, here’s how things stand right now in this fight:

1. iMEGA’s challenge has been accepted by the Appeals Court, and the Court has established our standing to bring suit on the behalf of our members and the i-gaming industry.

2. All i-gaming legislation in the US Congress has stalled, with no clear way forward.

On balance, we feel good about where we’re heading with our strategy.

Rep. Darrell Issa (R-CA): If you go into a place and there’s a crime actively being committed, let’s say there’s a bookie joint, and there’s tens of thousands of illegal transactions going on every minute. And you know that. And you have proof of that. You don’t question your ability to go in and to harvest the fruit of all the activities in there, is that correct?

Robert Mueller (FBI Director): That’s correct.

Links
CNet: Transcript of FBI Director on internet surveillance
CNet: FBI’s Net Surveillance proposal raises privacy, legal concerns

Good morning, Mr. Chairman.  Thank you for the opportunity to present this testimony.  My name is Edward Leyden and I am the president of the Interactive Media Entertainment & Gaming Association, which we generally refer to by the acronym, “iMEGA.”

iMEGA is a trade association representing entities and individuals invested in the continued growth of the Internet and of the interactive media. We view the Internet as an indispensable engine for economic prosperity and social justice. Furthermore, we adhere to the proposition that the inalienable rights that each of us holds under the Constitution to freedom of privacy, speech, expression, and conduct are not lessened in any way when we are using the Internet.

These “Digital Civil Rights” do, in our view, serve as the cornerstone for sustaining freedom and building wealth in a globalized economy.In pursuit of these guiding principles, iMEGA, on June 6, 2007, brought a case in the United States District Court for the District of New Jersey, iMEGA v. Gonzales, 3:07-cv-02625-MLC-TJB. This civil rights lawsuit challenges, among other things, the constitutionality of the Unlawful Internet Gambling Enforcement Act (UIGEA) and, by extension, the validity of any regulations promulgated pursuant to it.

On March 6, 2008, the presiding U.S. District Court judge issued a ruling establishing with crystal clarity iMEGA’s prudential and associational standing to be the champion of the interactive gaming industry against the UIGEA in the courts of this nation.  In view of the fact that questioning iMEGA’s standing was the primary basis for the Justice Department’s challenge to our lawsuit, this recognition by the federal courts is a genuine and important victory for our Association.

However, at the same time, the District Court declined to rule on the groundbreaking questions we presented and, instead, simply affirmed that Congress had the right to pass the law in a constitutional manner - a point that iMEGA never challenged.  As a result, the trial court is in essence standing aside and reserving these issues to be decided by a “higher authority,” the United States Court of Appeals for the Third Circuit and, potentially, the United States Supreme Court.

Of overwhelming relevance to the work of this subcommittee, today, is the fact that a federal court of competent and plenary jurisdiction has not only acknowledged the failings of the UIGEA but, in Footnote 12 on Page 27 of its decision, stated categorically that the “criminal penalties” provided for under the UIGEA do not apply to “financial businesses,” such as “financial transaction providers” –meaning banks, credit card companies and payment processors—which, according to the Court, are subject only to “regulatory enforcement.”  As a result,  the stated purpose of the UIGEA to “starve” the Internet gaming industry by criminally punishing the financial institutions that provide services to it has now been judicially invalidated.

Nevertheless, we continue to lodge the strongest possible objections to both the principles and details of the proposed UIGEA regulations.  Even in proposed form, these rules exert a harshly chilling effect on innovation surrounding the Internet.

What is more, by imposing unprecedented burdens on the intricate system of financial transactions and payment system instrumentalities–which has up until now been universally recognized as being inherently content-neutral–these proposed regulations run the grave risk of sharply stifling the growth of electronic commerce.

iMEGA recognizes that immense political and ideological pressures were brought to bear upon the responsible agencies during the process of drafting these proposed regulations. We are, nonetheless, profoundly troubled by the Agencies’ failure to define just what an “unlawful gambling transaction” is and to, instead, delegate this determination to be made on an ad hoc basis by an entity or person having a “customer relationship” with an Internet gaming concern.

Given the still harsh sanctions facing any market participant falling afoul of these proposed rules, the natural course of action for a financial intermediary–particularly a smaller entity without a corporate legal department or sophisticated outside counsel to guide it–will be to deem every transaction submitted by an Internet gaming concern to be an “unlawful” one.

Thus, as a direct and proximate consequence, the proposed regulations will have accomplished by de facto means a blanket prohibition on Internet gaming for which no political consensus exists-or has ever existed.  Far worse, however, is the deep chill that such action places upon technological innovation and the principles of financial transparency.

Against this backdrop of confusion and uncertainty, the suggestion by some for the creation of a governmental “black list” of companies or concerns deemed to have engaged in an undefined “unlawful gambling transaction” should trouble all who cling tightly to the principles of fundamental fairness and substantive due process.

Thank you again, Mr. Chairman, for this opportunity to testify. We stand ready to answer any questions you may have.

Link
Gambling 911 - iMEGA files notice to appeal & open letter to i-gaming industry