[rdl]

I disagree with the entire 'very little cause required to compel disclosure of metadata'; essentially, the third-party doctrine should only apply if users are consciously giving their data to a third party for the purpose of redistribution, and not purely incidentally to a service.

If they can argue something like a copyright banner in a ROM is "a mere instrumentality", there's no reason the defense side shouldn't be able to argue giving calling information to a cell provider, or mail headers to a mail server, aren't essentially the same instrumentalities.

(I've talked to lawyers who agree, but they all also agree this ship has sailed for many decades.)

That said, yes, he's both technically and legally incompetent. It's sad, and has made bad law for everyone else.

[gamblor956]

Not even remotely similar. A copyright banner isn't even a mere instrumentality because copyright law already protects the ROM; the banner is redundant. (see http://www.copyright.gov/circs/circ03.pdf. Notice was required by the 1976 Copyright act but after the US adopted the Berne Convention notice became optional.)

On the other hand, mail headers and other such meta are frequently necessary to provide the service. The very act of using email requires giving one or more headers to one or more third-party email providers; the very act of making a phone call requires giving phone number information to one or more phone service providers.

[rdl]

I was referring to https://en.wikipedia.org/wiki/Sega_v._Accolade

[gamblor956]

I'm not sure how that case is relevant to your point. In that case, Sega used a TMSS file as a hardware check to make sure games were properly licensed. Acclaim copied this file and included it in their games after reverse-engineering some demo games. This was eventually found to be fair-use since it was required to run their games but there was no technical reasons for the use of the TMSS file.

That's different from the point you were trying to make. The provision of email addresses and phone numbers are inherently necessary for an email provider or telephone service provider to provide those services. They aren't just incidental data--they're a fundamental part of the service transactions at issue.

[bradleyjg]

I agree that Smith v. Maryland, 442 U.S. 735 (1979) and its progeny are not great, and it's possible, though unlikely, that the Supreme Court will eventually revisit the issue. But Levison's actions in no way helped make that any more likely. On the contrary he completely failed to preserve the issue. His mistakes were in large part due to the repeated efforts to act as his own attorney. I'm sympathetic regarding the high cost of legal representation but he could have at least tried to reach out to one of the fairly well funded public groups that do work in this area early on.