Wednesday, February 15, 2012

The Strange Case of SOCA and Conspiracy to Defraud

Pangloss is intrigued and slightly amazed to discover that a well known download site called "Rnbxclusive" was taken down yesterday by authority of SOCA, the UK's Serious and Organised Crime Agency and its front page replaced with this:

 On being questioned by various, including the highly handy David Meyer of ZDNet, SOCA have confirmed (a) that this message is genuine  and did come from them (b) that the site has been "taken down" under the common law offence of conspiracy to defraud.

The web is awash with complaints that this is the UK's version of SOPA and that  the domain name was taken down extra territorially (registered to GoDaddy, in the US, not within SOCA jurisdiction) and without due process. This may well be true.But this rather unexpected approach to the war on file sharing raises for me a number of other, perhaps even more awkward questions.

First and foremost, where was the fraud? Copyright infringement, even criminal copyright infringement , is simply not the same thing as fraud (just as rape is not the same as murder - not all crimes imply each other :-)  Fraud at common law requires in general  intent to deceive and the making of false representations to the public.  (It is explicit that conspiracy to defraud was used so we are not referring here to the Fraud Act 2006) .Was Rnbxclusive saying or implying its downloads were legal? That would be fraud.  But in that case, the downloaders would be the victims - the deceived - and certainly not part of the conspiracy. So it is hard to square this version of events with the claim that visitors to the site might be liable to ten years in jail. Nor to explain the capture of their personal data (their IP address etc) without consent . Such processing of personal data can be legitimised without consent if the intent is to detect and prosecute crime - one of the major DP exceptions - but is that a legitimate and proportional response when the data captured is that of the victims? In any case the wording of the notice hardly  makes it sound as if visitors to the site were being regarded as victims rather than perpetrators of crimes.

One of the problems about these fraud theories is we cannot tell, as the site and the evidence has been removed. Here we see some of the advantages of transparency and due process in producing public credibility. Without evidence, it is hard not to think that a charge of conspiracy to defraud was used to  give access to higher penalties and perhaps more importantly to legitimise the involvement of SOCA at all.

SOCA's remit on its website is to deal with "serious organised crime that affects the UK and our citizens. This includes Class A drugs, people smuggling and human trafficking, major gun crime, fraud, computer crime and money laundering." Delve further down and SOCA does have a remit to deal with "intellectual property crime".   But even a quick skim of this page produces the impression (which Pangloss already anecdotally had) that SOCA's job is to deal with physical counterfeiting - knock off Guccis et al - and with their equivalent version in digital land - knock off games and software. SOCA's role historically has not been to be involved in small scale domestic filesharing. If they are moving into this, there should surely be some kind of public debate or even notice about financial priorities and  overlap with the myriad other bodies, both private and public, involved in the "war on piracy".

Which brings me to my final point which is why are we spending public resources on this when the issue is one where the music industry has just been given the route to police its own patch effectively? Newzbin, much written of in this parish, now clearly gives rightsholders the right to seek blocking orders , in court, with full publicity and due process. Surely SOCA should have rung the BPI (or whoever) and said "look, here's some lovely evidence for you?"  There are some serious questions to be asked here about public/private overlap (or complicity), resource allocation and due process and publicity.

ps ah - useful and to some extent reassuring info here from Glyn Moody  , which seems to say this action was based not on common or garden filesharing but on the owners of the site having obtained pre release music tracks by fraud (possibly actual hacking ?) , which is the (alleged one should say) offense for which one person has been arrested. That does make more sense and would fall within SOCA's remit much more firmly.

pps This still leaves the question though of whether visitors to the site who download items without knowledge of how the site had obtained them (it seems now, (some ), by fraud/possible hacking) could be treated as conspirators in the fraud charge. I an not an English criminal lawyer but I somewhat doubt it. The police quote here uses the word "knowingly" which is what you would normally expect for mens rea. If it is to be presumed anyone who downloads from any site on the Internet  should be aware of the possibility of fraudulent obtaining of that item, without checking out the rights of the site to license the item - an almost impossible task for the average punter -   then we really have made infringing copyright by private` downloading a crime punishable by 10 years in jail.  Not what SOCA intended I suspect..