As if they didn’t have enough problems with online piracy, the major record labels say they’ve seen a surge in high-quality counterfeit CDs in California in recent years. That’s why they’re backing a bill by state Sen. Alex Padilla (D-Pacoima) that would allow police to search disc manufacturing plants without a warrant, making it easier to find the ones behind the bogus products. The labels’ eagerness to crack down on pirates is understandable, and Padilla has crafted a narrow measure that tries to stay within the parameters set by the Supreme Court. Nevertheless, exempting disc manufacturers from the 4th Amendment’s protection against unreasonable searches would set a dangerous precedent.
Padilla’s bill, SB 550, would allow police to conduct surprise inspections of disc manufacturers without a warrant, or even any suspicion of illegal activity, to see if they were complying with a state requirement that they put unique identifying marks onto discs. That’s the same approach taken in 15 other countries with numerous disc makers.
The Supreme Court has allowed warrantless “administrative” searches of liquor stores, gun dealers and other closely regulated businesses, which in the court’s view do not have the same expectation of privacy as the average company. But the manufacturers covered by Padilla’s bill don’t fit into that category. CDs and DVDs may be protected by copyright law, but that doesn’t mean the companies that press them are accustomed to more government scrutiny than, say, printers or auto parts manufacturers. Yet those companies are just as capable of churning out counterfeits.
The labels’ trade group, the Recording Industry Assn. of America, argues that there’s no easy way to identify the sources of unmarked discs without being able to conduct inspections of any and all disc manufacturers. As true as that may be, it’s a poor rationale for suspending the 4th Amendment, which was intended to protect the rights of suspects even if that required the government to work harder to bring criminal cases. And if lawmakers are willing to lift those protections for the sake of the music and movie industries, why not book publishers, battery makers or luxury goods manufacturers, all of which have problems with counterfeiting? Where will they stop?
If disc counterfeiting is as pervasive and damaging to the California economy as the industry says it is, then it should be a higher priority for law enforcement. That doesn’t mean police should be given the constitutional shortcut presented by the Padilla bill, however. Instead of treating all manufacturers as suspects, police should do the sort of detective work that they do to solve other crimes against property. Find a reason to suspect a specific manufacturer, then get a warrant.