Could one judge's decision in a copyright case broadly rewrite US laws governing legal discovery? The EFF and the Center for Democracy & Technology are both warning that a recent legal decision could eliminate privacy on the Internet and impose massive record-keeping burdens on any company that uses computers.

Two weeks ago, a judge ruled that BitTorrent search engine Torrentspy was required to enable server logs and turn the information over to the MPAA as part of the discovery process (the MPAA is suing Torrentspy for contributing to copyright infringement). That ruling was based on the theory that the information in question is already stored in RAM and therefore already exists; Torrentspy would not actually need to log any new data, just record what was already passing through its servers. The legal implications of this argument are staggering, and two technology groups have just pointed them out to the court in a new amicus brief.

In the filing, the EFF and CDT say that the judge's decision "would mark a radical expansion of the scope of federal electronic discovery obligations... Virtually every business in the United States relies on digital technologies for all kinds of communications. And virtually every function carried out by those technologies depends on and results in the temporary creation of RAM data that is not ordinarily retained." If the ruling stands, companies might be forced to archive any potentially-useful information that appears in a PC's RAM or face the prospect of penalties if they are sued and cannot produce the data.

Beyond creating a massive new data retention requirement (imagine how this could affect an organization with 20,000 workstations and a host of servers), the ruling could threaten online privacy. Many organizations purposely do not retain information such as the IP addresses of visitors, even though this information is available to them and passes through RAM. If the current order stands, not logging this information could become legally hazardous if such groups are ever involved in lawsuits.

The controversy centers on Federal Rule of Civil Procedure 34, which talks about producing "electronically stored" information. The EFF and CDT argue that "as a factual matter, because information held only in RAM is not stored, but rather exists only temporarily until overwritten, RAM data does not fall within the scope of Rule 34." That is, RAM was never intended to count as "stored" information under the rule.

The EFF's Fred von Lohmann attempts to illustrate how absurd the new requirement could be by making a comparison to the analog world. "A court would never think to force a company to record telephone calls, transcribe employee conversations, or log other ephemeral information," he said in a statement. "There is no reason why the rules should be different simply because a company uses digital technologies."

The EFF and CDT are fighting to have the judge's discovery ruling in the case overturned.