WASHINGTON - The Electronic Frontier Foundation (EFF) filed a brief this week in support of one of its previous court opponents, DirecTV, arguing that a federal appeals court should throw out a lawsuit against the company for accessing a public website.
DirecTV is being sued by Michael Snow, the publisher of an anti-DirecTV website that contained warnings to DirecTV employees that they were not authorized to enter. In its friend-of-the-court brief to the Eleventh Circuit Court of Appeals, EFF argues that the federal Stored Communications Act, on which Snow's suit relies, only protects websites that are configured to be private.
"If you want to keep your website private, then you should protect it with a password," said EFF Staff Attorney Kevin Bankston. "The law doesn't allow web publishers to sue when people they don't like visit their site. Otherwise, any company could publish terms of service forbidding competitors, consumer watchdogs, journalists, or even government officials from scrutinizing a public website." Under Snow's theory, not only could such unauthorized visitors be sued, they could also be prosecuted and sent to prison.
Snow is asking the appeals court to overturn the district court's dismissal of his case. EFF agrees with DirecTV that the case should have been dismissed, but argues that the lower court's reasoning for dismissal was flawed.
"The district court made the right decision but based on the wrong reasons, threatening the legal protections for private web communications," Bankston said. "The appeals court needs to clarify that although public websites aren't protected by federal privacy laws, sites that are actually configured to be private are fully covered."
EFF has opposed DirecTV in the past for its legal campaign against "smart cards," and co-sponsors a website, www.directvdefense.org, designed to help those who have been sued by DirecTV. However, as Bankston said, "When it comes to protecting the rights of Internet users, EFF doesn't hold a grudge. We may oppose DirecTV in other cases, but here, it's plainly on the correct side."
The US Internet Industry Association, whose membership includes many web hosts that offer private web services, joined EFF on the brief.
For the full text of the brief, see: http://www.eff.org/legal/cases/Snow_v_DirecTV/EFF_amicus.pdf