Although AOL Time Warner has refused to say much about its position on this case, the company hasn't, really, been officially silent. Rather, it has held two diametrically opposite views that, taken together, signify a deeply split identity. On one side are many of the company's media subsidiaries -- its record labels and movie studios -- which are part of the RIAA. On the other side is the company's online division, AOL, which is part of the U.S. Internet Service Provider Association, an ISP trade group that filed a legal brief in support of Verizon, and therefore against the RIAA in this case. Through two trade groups, then, AOL has technically told the court that it's on both sides of this issue. Talk about a tough merger!

When asked any questions regarding the specifics of the RIAA-Verizon case, Graham, the AOL spokesperson, repeatedly declined to comment, explaining that the case was a "legal matter that did not affect AOL directly." But he said that the mystery over AOL's stance on this case didn't indicate anything about its privacy policy. "We have a strict privacy policy in place at AOL that prohibits us from providing personal information about our members, unless there are specific circumstances under which the information was requested," Graham said.

Those are cases in which the company is served with a criminal or a civil subpoena. In the case of a criminal subpoena, one obtained by law enforcement in the course of a criminal investigation, AOL will "absolutely" turn over a user's identity, Graham said. In the case of a civil subpoena, "there is careful legal scrutiny, and we have a right to review or contest it, which is what happens in many cases. We check to see whether the subpoena has any merit whatsoever, or whether the subpoena asks information that we do not have and do not keep." If a member's identity is requested through a civil subpoena, Graham said, AOL would first get in touch with the user and let the person know of "their right to contest it. And we'd give them a certain period of time in which they can answer us."

The process set by AOL to comply with ordinary civil subpoenas would seem to be protective of a user's identity; but the scheme wouldn't work with the sort of DMCA 512h subpoenas that AOL's media siblings are seeking. If AOL received a 512h subpoena, it would not have the opportunity to check whether such a request had any merit. And the subpoenas -- which Bates said were designed to be "expeditiously" processed -- would not give the company and users a few days to think over the request.

This will be made all the clearer if ISPs are served with hundreds or thousands of such subpoenas at one time, a scenario some people fear. Dave McClure, the president of the U.S. Internet Industry Association, an ISP industry group that does not include AOL, says: "If an ISP receives 60 boxes containing 10,000 IP addresses for which the RIAA wants you to cut off their access and give up their information, the ISP has no way of knowing whether these people were guilty of infringement or not."

Does AOL recognize, or share, these fears? That's impossible to tell. If you ask people in the ISP industry what they believe AOL's position on this case to be, many say that they couldn't guess but that they suspect the company's silence so far means it has taken a back seat to Time Warner. Others in the industry will tell you of rumors, whispers -- unconfirmed, and denied by the company -- that AOL Time Warner has told lawmakers it's pleased with the Bates decision.

One person conjectured that the RIAA met with AOL before serving other ISPs with 512h subpoenas, but the RIAA's Oppenheim said that the story was absolutely false. "That's just one of those myths you hear," he said.

What if, deep in its corporate heart, AOL Time Warner really, truly, has no position on this case, if only for the reason that neither side presents a very good option?

If AOL Time Warner sides with Verizon -- and therefore its own online subscribers and their privacy rights -- it faces a clear cost: the wrath of its media divisions and of others in that business, companies who believe that file trading will be the death of them. And what benefit would it get from protecting consumers' privacy? Perhaps not a whole lot; the subscribers would likely be oblivious to the whole matter anyway. (The sort of people who care about how their ISP interprets obscure sections of the DMCA aren't likely to be on AOL in the first place.)

How would AOL TW do if it took the RIAA's side? If 512h subpoenas become a frequently used tool of media companies, and if RIAA applies them fairly across ISPs, AOL would probably face a hurricane of such requests. It might very well have to kick off many of its own users for the sin of file trading -- which would be terrible for its image, and help depress already stagnant subscriber growth rates.

Perhaps, in the end, silence is AOL's only rational option, at least until its internal politics are solved.

"AOL's problem is they're just a two-headed monster," Mark Cooper, of the Consumer Federation of America, likes to say.

The important question now is, which monster is bigger?

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