April 24, 2003
1. I can’t honestly say whether the first part of the opinion, dealing with Article III questions, is right or wrong. From what little I know about the subject, these issues are incredibly muddy, particularly when it comes to delineating “inferior offices” (see Article II Section 2 and how Justice Rehnquist construes the independent counsel in upholding Congress’ right to create it in Morrison v. Olson) and “ministerial” duties (I recall this coming up in a federal-state distinction in Printz v. US, which struck down part of the Brady Bill because it coopted state officials to administer a federal program).
Along with citing Morrison repeatedly, the judge cites Mistretta, which upheld the use of federal judges on the US. Sentencing Commission to establish sentencing lengths. Both those cases exhibit a functional rather than a formalistic approach to separation of powers. Judge Bates seems to be taking a similar tact, allowing flexibility in how Congress creates these statutes. Note how the judge slips in an Eldred reference to support this deference.
2. I think Frank summed up the First Amendment and overbreadth parts pretty well. Judge Bates does not buy that anyone’s privacy is really at stake. His reasoning seems to imply the person definitely was engaging in “unprotected conduct” (pg 27-28). When he begins to talk about safeguards in case the person was engaging in legal activity, he really overstates the requirements for copyright holders in 512.
Whether he’s right or wrong constitutionally speaking, I don’t know. On a practical level, we all know that the RIAA and MPAA are in the power positions here. It’s going to very difficult to check this subpoena power. They will be able to pervasively monitor and identify users of P2P systems.