The Great Change: Turning Cathy into a Lawyer

Interesting; I followed you from your post to Concurring Opinions. For shame that neither Kerr nor Reynolds cited you.

I see that Kerr did link from a May 2006 blog post to this DOJ paper, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations:

Importantly, the provider exception of § 2511(2)(a)(i) does not permit providers to conduct unlimited monitoring. See United States v. Auler, 539 F.2d 642, 646 (7th Cir. 1976) ("This authority of the telephone company to intercept and disclose wire communications is not unlimited."). Instead, the exception permits providers and their agents to conduct reasonable monitoring that balances the providers' needs to protect their rights and property with their subscribers' right to privacy in their communications. See United States v. Harvey, 540 F.2d 1345, 1350 (8th Cir. 1976) ("The federal courts . . . have construed the statute to impose a standard of reasonableness upon the investigating communication carrier."). Providers investigating unauthorized use of their systems have broad authority to monitor and then disclose evidence of unauthorized use under § 2511(2)(a)(i), but should attempt to tailor their monitoring and disclosure so as to minimize the interception and disclosure of private communications unrelated to the investigation. See, e.g., United States v. Freeman, 524 F.2d 337, 340 (7th Cir. 1975) (concluding that phone company investigating use of illegal "blue boxes," which were devices designed to steal long-distance service, acted permissibly under § 2511(2)(a)(i) when it intercepted the first two minutes of every conversation obtained by a "blue box," but did not intercept legitimately authorized communications). In particular, there must be a "substantial nexus" between the monitoring and the threat to the provider's rights or property. United States v. McLaren, 957 F. Supp. 215, 219 (M.D. Fla. 1997). Further, although providers legitimately may protect their rights or property by gathering evidence of wrongdoing for criminal prosecution, see United States v. Harvey, 540 F.2d 1345, 1352 (8th Cir. 1976), they cannot use the rights or property exception to gather evidence of crime unrelated to their rights or property. See Bubis v. United States, 384 F.2d 643, 648 (9th Cir. 1967) (interpreting Title III's predecessor statute, 47 U.S.C. § 605, and holding impermissible provider monitoring to convict blue box user of interstate transmission of wagering information).

It's my basic sense that AudibleMagic, after MGM v. Grokster, presumes that such a "substanial nexus" exists between P2P and illegal filesharing.