On August 16, 2007, Doe No. 28 in the RIAA’s action captioned Virgin Records America, Inc. et al. v. Does 1-33 filed a motion to squash the subpoena issued to the University of Tennessee on the grounds that, one, it was unreasonable on its face and, two, it violates his rights under the Family Educational Rights and Privacy Act (“FERPA”). The memorandum in support of this motion can be read Pike & Fisher’s website, Internet Law & Regulation. This was a case of first impression, i.e., this is the first time a court has issued a ruling based on this type of facts.
The Subpoena is Unreasonable on its Face
Does No. 28′s primary argument in support of the proposition that the subpoena is unreasonable on its face was that plaintiffs could identify the name of the alleged infringer of the copyrighted sound recordings by being provided with the name and current campus address of Doe No. 28 and, therefore, does not need his permanent address, telephone numbers, e-mail address, and MAC Address, all of which would subject Doe No. 28 and his parents to unreasonable phone calls and mail.
Plaintiffs countered that this information was necessary in order to uniquely identify Doe No. 28 to the exclusion of other defendants.
The court based its decision in this regard on Rule 45 of the Federal Rules of Civil Procedure, which state that a subpoena may be modified if it poses an “undue burden” on the defendant. The Court held that providing plaintiffs with the requested information was not unduly burdensome since college students are transient by nature and move frequently during their tenure at college, thus making it difficult for plaintiffs to locate Doe No. 28 if only a name and campus address is provided.
The Subpoena violates the Family Educational Rights & Privacy Act
In examining this issue, the Court looked at both FERPA and at the University of Tennessee’s FERPA policy, which is posted online here. The Court found the following:
FERPA broadly defines “educational records” as “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution.” United States v. Miami University, 294 F.3d 797, 812 (6th Cir. 2002) (citing 20 U.S.C. § 1232g(a)(4)(A)). Directory information is defined in the statute as “the student’s name, address, telephone listing, date and place of birth…” 20 U.S.C. § 1232g(a)(5)(A). According to the University’s FERPA policy, directory information is “information not generally considered harmful or an invasion of privacy if disclosed. The University of Tennessee considers the following information to be ‘Directory Information’: Name, semester and permanent address, e-mail address, telephone listing, date and place of birth.” Office of the University Registrar, What You Should Know About FERPA. Furthermore, the University’s policy states that it is “not allowed to share information (other than ‘Directory Information’) without a student’s written consent” and that a student may limit release of directory information by submitting a request for directory exclusion to the University’s registrar.
After summarizing its analysis of FERPA and UT’s policy, the Court surmised that “most of the information [sought by the subpoena] falls within the category of Directory Information under FERPA,” with the exception of the MAC address, which identifies the device used by Doe No. 28 to connect to the Internet, and therefore is not protect by FERPA. With regard to the MAC address, the Court found that it was neither and “educational” record nor “personally identifiable information,” and therefore was not protected by the act.
One note of interest in the Court’s order was the revelation that Doe No. 28 had failed to argue that he had issued a “limiting request” as allowed in the University of Tennessee’s FERPA policy. The Court also made a particular note that the University’s policy did not mention MAC addresses. This seems to hint that the Court may have issued a slightly different opinion if these factors had been present, leading to the conclusion that students may want to write letters to their respective schools specifically requesting that no “directory information” be provided to third parties and asking that their schools not release MAC addresses as part of directory information and/or include such information in their FERPA policies.
The Court’s full opinion is available online at the Knoxville News Sentinel.