Lisa Rein has written a very good article for O’Reilly, reviewing the ways in which the RIAA’s latest attack on P2P users (and due process!) are legal and how they’re legally questionable.
A recent decision by the 9th Circuit Court of Appeals finds that a party using “patently unlawful” subpoenas to obtain access to another party’s stored electronic communications could be liable for violations of electronic privacy and computer fraud statutes. This could have serious implications for the RIAA’s mass subpoena campaign in that, if such subpoenas were also determined to be “patently unlawful,” for whatever reason, the organization could be held liable under electronic privacy and computer fraud statutes for accessing user data under false pretenses. (Read a summary of the decision.)
Does this mean, if the RIAA’s subpoenas are determined “invalid,” that they are illegally snooping? It’s extremely possible. However, the DMCA subpoena law is new and there aren’t many decisions on it, so the RIAA could try to hide behind the “newness” of the law to avoid liability for misusing it.