3 Strikes And You're Out talk from LSE conference

Ray Corrigan, one of the finest IT law bloggers on the block, has, incredibly helpfully, while I frolicked for the long Easter weekend, written up an account of my talk on the dubious legality of the posited "3 strikes and you're out" legislation which, if passed, would mandate disconnection of repeat filesharers in the UK from the Internet.

See http://b2fxxx.blogspot.com/2008/03/3-strikes-copyright.html (thanks Ray.)

There is also a third ground of possible illegality of any proposed "notice and disconnection" regime, , other than its transgression of due process and lack of propartionality with respect to human rights. I did not have time to get to this at the conference so Ray has not mentioned it - namely that in order to prevent an "it wasnae me" defense (as we say in Glasgow), legislation might also require the mandating of secured wi-fi for every user who maintains a wireless router. Without such a rule, every uploader could theoreticaly claim it was not them but a wi-fi piggy-backer who committed the "offence".

Currently, users are usually advised to make their wi-fi network secure, and most ISP T & Cs theoretically demand it, but many prominent security experts, notably including Bruce Schneier, deliberately keep their networks open (while maintaining high quality virus checking ware and firewalls for the security of their own data). they do son mainly on the grounds that the mobile Internet ought to be a public resource for those in transit or in public areas, like toilets or water fountains. Breach of a term imposing secure wi-fi only by an ISP may currently be a breach of contract which might conceivably lead the particular ISP in question to , legitimately, disconnect the user; but it would not, as "3 strikes" would, mean that user is then sent to Internet Coventry by every ISP in the country.

Cutting off the choice of providing public wi-fi to the user on pain of banishment from the Internet, raises obvious issues itself of infringement of freedom of expression and association. Avaiability of unsecured wi-fi in public areas, say, in parks or on streets or at emergencies, is also arguably , as Schneier and co believe, a public good. Given that, it should be asked whether a proper balance is being maintained if we legislate to ban an asset of general public interest, in order to protect the legitimate property interests of one narrow commercial sector. It also raises the question of whether a wi-fi operator might be a "mere conduit" under the E-Commerce Directive, Art 12, and if so whether, in effect, strict liability for other people's misdeeds can be imposed on such operators without infringing EC law.

This point is dealt with in my powerpoint which I believe will be soon up on the relevant website along with other slides from the day. Will add URL shortly.

I think the best point raised during the day which I had not really considered at all before, was how long a general ban or disconnection after notice would last. (I think this came from Michelle Childs, but I am not totally sure.) Does a foolish upload or two by a teenager in your house mean that dad and/or mum is banned from the Internet forever? Even when we talk of true criminal sanctions (and copyright is at root a civil matter), jail terms (bar "life means life" for murder) have to be of defined length. Do we want a world where ISPs are ordered by the content industry to patrol indefinite lifetime bans from the Internet? Would legislation include provisions for appeals after a certain time and has anyone thought through the due process ramifications? The more you think about it, the more damningly flawed the whole idea is.

In France, at least, the whole process is going to be under the supervision of an independent tribunal given directions by a judge. If we do end up going down this route in legislation, the French system should be the minimum starting point for transparency and due process. I hope instead however that the UK government and BERR will, after due consideration, decide this approach, with all its capacity for disproportionate human right infringement and errors in proof and process, is not a suitable way to police filesharing, when so many other routes exist.