Why is DirecTV threatening innocent people?

Over the past several years, satellite TV giant DirecTV has sent letters to an estimated 170,000 individuals nationwide, accusing them of purchasing "illegal signal theft equipment" and "pirate access devices" and threatening to haul them into court for stealing DirecTV. The letter tells the unlucky recipients that the prospect of a pricey legal battle will go away if they pay up, to the tune of $3,500 in most cases. While some of these devices, including bootloaders, unloopers, and blockers, are often pre-configured to pirate DirecTV's signal, DirecTV often lacks any proof that the recipients of the letters actually used them to intercepted DirecTV’s signal. Instead, all DirecTV knows is that they may have merely possessed smart card technology.

DirecTV’s campaign began with a series of raids on Internet Web sites and mail-order sellers that marketed certain of these devices for use in pirating DirecTV. Armed with Digital Millennium Copyright Act , DirecTV paid visits to vendors like Whiteviper, took over their Web sites, and went home with their customer records.

Next, groups of DirecTV enforcers with euphemistic names such as the "End User Development Group" started sending threat letters and staffing the call center. The word to recipients, whether guilty or not, was pay now, or pay a lot more later in court -- possibly up to $100,000. While DirecTV has now agreed to investigate legitimate claims of innocence, it is still sending out demand letters at an unprecedented rate.

DirecTV has also been making good on its threats to sue, even against people who expressly explained to DirecTV the legitimate uses they were pursuing, such as scientific research or home-brewed security systems. Undeterred, the company has brought nearly 24,000 lawsuits in federal district courts across the country.

In its letters, DirecTV often makes a legal leap that we think is unjustified and dangerous: that purchasing technology with a possible illegal use (intercepting DirecTV’s signal) means you must be breaking the law by actually intercepting the signal. This "guilty until proven innocent" campaign has presented a tough call for all the non-pirates targeted by DirecTV: Pay thousands of dollars to stop DirecTV’s threats or face a long and expensive legal battle to prove you are innocent. This choice is made even more difficult by the fact that only DirecTV gets its attorneys fees when it wins in court - innocent defendants who win their cases get nothing.

There is no doubt that satellite signal theft is a crime. And while DIRECTV has a right to pursue its claims against those using these devices to intercept their its signal, when innocent people end up paying for crimes they didn't commit, something is wrong.

Who's winning?

By most reports, DirecTV has talked plenty of people into settling, including some who never stole a second of signal. But so far, this Goliath hasn't had more than a handful of wins against innocent end users in court. It may be wise for people who’ve been breaking the law to settle out of court, but for the innocent purchasers, the call is a much closer and tougher one to make.

The law prohibits stealing signals, not purchasing smart card readers, and to prevail, DirecTV must have evidence of actual interception. (Get the full legal analysis here.) But there's no evidence against thousands of innocent users targeted by DirecTV. In many cases, DirecTV is simply assuming that piracy is happening without a single shred of proof.

In most of the substantive court decisions, lack of proof has spelled losses for DirecTV. A Michigan judge ruled that a purchase invoice didn't look like proof to him when the defendant didn't even own a DirectTV dish. (The judge subsequently granted a motion for reconsideration when DirecTV produced evidence that the defendant had purchased DirecTV equipment in the past, but the ruling on the purchase invoice still stands.) And an Ohio judge dismissed a slew of cases in which DirecTV lumped together 320 unrelated defendants in 44 complaints, scolding the deep-pocketed corporation for trying to defraud the public of proper filing fees.

Efforts to take DirecTV to task for threatening innocent people and filing frivolous lawsuits have so far failed. One California class action lawsuit against DirecTV for extortion lost in the first round (it's now on appeal) and others are also being filed. Defendants have had little luck with counterclaims even when they win a dismissal. And though the law would allow DirecTV to recover its attorney fees if it ever won a case, defendants don't recoup the money they spend on lawyers and court costs no matter how innocent they are.

How can I protect myself?

If you have purchased technology on DirecTV's suspect list for legitimate use, here are some ways to strengthen your defense. These measures probably won't keep DirecTV from sending you a threat letter, but if you become a target they could improve your chances of getting the company or a court to drop the case.

1. Document what you used the device for, if anything. DirecTV has stated that people with verifiable evidence that they used their devices for purposes other than signal piracy stand a very strong chance of having their cases dismissed. Vague claims of "legitimate use" without verifiable, documented support , however, are unlikely to succeed.

2. Do not make false statements about what you used your device for. Efforts to mislead DirecTV's investigators and attorney will likely only serve to harm your case and they hinder the efforts of other innocent victims to escape the cloud of litigation.

3. Do not start subscribing to DirecTV. A judge has held that when a defendant doesn't own the box and dish required to receive DirecTV signal, it's not reasonable to infer that he used a device to pirate.

4. If you were a DirecTV subscriber in the past, document why you stopped your subscription and how you disposed of your box and dish.

5. If you currently subscribe to DirecTV, don't change a thing. A company official has testified that a sudden termination or change in service spells likely guilt in DirecTV's eyes, and a judge may see this logic.

6. Do not patronize vendors who openly market their products for the purpose of signal theft or piracy. DirecTV continues to subpoena sales records from such sellers, and these will serve as the source for threat letters in the future.

What do I do if I get sued?

If you receive a threat letter, a threat letter with draft complaint, or a lawsuit (a live complaint) from DirecTV, do take it seriously -- but don't panic. You're in plenty of good company.

1. Contact an attorney, preferably one with some experience in these cases and admitted in the federal court district where you live. We've compiled a list of attorneys currently taking DirecTV cases.

2. Explore the resources on this site to find out more. Knowledge is power.

3. Be cautious if you talk to DirecTV yourself unless you plan to settle at the asking price. The people staffing the phone lines are very skeptical of pleas of innocence from individuals without legal representation. If you have documentation of a legal use or some other reason for your innocence, be prepared to provide copies of it to DirecTV or they will likely not accept your story.

4. If you'd like to network, get support, or gripe, visit the online forums discussing this campaign.

5. Do not ignore DirecTV's letters. Experience suggests the company will not go away, and you want to put time on your side. Missing a court date could land you an expensive default judgment.

What do I do if my client gets sued?

If you represent a defendant in the DirecTV end user campaign and are new to the game, here are a few hints.

1. Research the legal issues. DirecTV's claims and the statutes it cites are complicated, but lawyers from the Electronic Frontier Foundation and the Stanford Center for Internet and Society think that any valid legal claim by DirecTV must include evidence of interception. We've gathered the statutes and some analytic and strategic resources to shorten the time it takes to get up to speed.

2. Review the available case files to see what courts have done so far.

3. Consider networking with attorneys experienced in DirecTV defense through our list or other connections.

4. Help expand our resources by sending relevant news and comments, submitting your public documents for posting on the site, and participating in our forum.

How can we stop DirecTV?

The success of DirecTV's campaign rests on the premise that people won't fight back. Show them that they're wrong.

1. Join EFF to support the fight against corporate intimidation of innocent individuals and help us defend all our digital rights.

2. Tell DirecTV how you feel. If you're a DirecTV subscriber and haven't purchased targeted technology, cancel your subscription and tell the company you disapprove of its intimidation campaign. Spread the word and encourage your friends to do the same.