"The New Surveillance"

Sonia K. Katyal

Abstract
A few years ago, it was fanciful to imagine a world where intellectual
property owners — such as record companies, software owners, and
publishers — were capable of invading the most sacred areas of the home
in order to track, deter, and control uses of their products. Yet,
today, strategies of copyright enforcement have rapidly multiplied, each
strategy more invasive than the last. This new surveillance exposes the
paradoxical nature of the Internet: It offers both the consumer and
creator a seemingly endless capacity for human expression — a virtual
marketplace of ideas — alongside an insurmountable array of capacities
for panoptic surveillance. As a result, the Internet both enables and
silences speech, often simultaneously.This paradox, in turn, leads to the tension between privacy and
intellectual property. Both areas of law face significant challenges
because of technology's ever-expanding pace of development. Yet courts
often exacerbate these challenges by sacrificing one area of law for the
other, by eroding principles of informational privacy for the sake of
unlimited control over intellectual property. Laws developed to address
the problem of online piracy — in particular, the DMCA — have been
unwittingly misplaced, inviting intellectual property owners to create
private systems of copyright monitoring that I refer to as piracy
surveillance. Piracy surveillance comprises extrajudicial methods of
copyright enforcement that detect, deter, and control acts of consumer
infringement.

In the past, legislators and scholars have focused their attention on
other, more visible methods of surveillance relating to employment,
marketing, and national security. Piracy surveillance, however,
represents an overlooked fourth area that is completely distinct from
these other types, yet incompletely theorized, technologically
unbounded, and, potentially, legally unrestrained. The goals of this
article are threefold: first, to trace the origins of piracy
surveillance through recent jurisprudence involving copyright; second,
to provide an analysis of the tradeoffs between public and private
enforcement of copyright; and third, to suggest some ways that the law
can restore a balance between the protection of copyright and civil
liberties in cyberspace.

This paper was selected as the winning entry for the 2004 Yale Law
School Cybercrime and Digital Law Enforcement Conference writing
competition, sponsored by the Yale Law School Information Society
Project and the Yale Journal of Law and Technology. Electronic copies of the full paper are available at the SSRN Electronic
Library:
here.