The proposals

What are the proposals?

You can read Lord Mandelson’s proposals in full here and the draft Digital Economy Bill here.

The propsoals are steeped in legalese but the essence of the systems is an automatic process to disconnect ‘offenders’ which will run something like this:

Step 4 will not be started until the Government has made a separate ‘order’. However, it can do this with no public consultation and very minimal Parliamentary scrutiny.

Step 6 and section 17 will not come into effect until the Government has made another separate ‘order’. It can do this with limited public consultation and minimal Parliamentary scrutiny.

What’s the fuss about filesharing?

Proposals are wrong in principle

1. Rightsholders are not part of the British judiciary!

The approach effectively allows rightholders to act as judge and jury.

It is not for rightsholders to make decisions about whether someone is guilty or not of infringing copyright. Nor is it for them to decide on sanctions as a punishment for suspected illegal acts. Only a court can make these judgements and hand down sanctions.

2. We are all innocent until proven guilty. Take a look at the Magna Carta!

Guilt should not be decided nor penalties imposed without sufficient proof that an individual has done something wrong. The fact that a broadband connection has been used for illegal filesharing does not prove that the account holder did anything illegal.

To assume that an account holder is guilty simply because his or her connection has been used for illegal filesharing is very dangerous since connections can easily be used by other people without the account holder’s knowledge.

The government’s proposed appeals mechanism is simply not sufficient to ensure fair justice. An appeal starts with a presumption of guilt.

Even if guilt is proven, only a court can determine what type of punishment is suitable in those particular circumstances. Some think that disconnection is never a suitable punishment since it restricts individuals’ freedom of expression and their Human Rights.

And it won’t work in practice

The innocent will suffer yet the most determined offenders will continue undeterred and undetected.

Millions of wireless (Wi-Fi) internet connections in the UK are easily hackable. A recent street survey carried out by TalkTalk showed that over 40%** of connections are unsecured or use a form of security that is easily hackable and so open to Wi-Fi hijacking.

If a connection is hijacked it can, without the account holder knowing, be used to download files illegally so incriminating the connection. Combine that with Lord Mandelson’s conveyor belt punishment system where account holders are presumed guilty and the innocent customers of these connections could be deprived of access to the internet even though they have done nothing wrong.

Some suggest that provided that provided account holders are warned if their connection of being used for illegal filesharing that they would then be ‘responsible’ for all traffic carried over it. This ignores the reality that some homes cannot upgrade to stronger and more up to date security without throwing away older equipment that does not support the better security (such as some games consoles) and that in truth even the best security can be breeched.

PC hijacking and zombie networks are other methods that can result in a connection being used without the account holder’s knowledge and so lead to innocent customers being accused and cut-off even though they have done nothing wrong.

This is not melodramatic theory – false accusations are happening today. Consumer organisations such as Which? have been contacted by dozens of people who have been wrongly accused of filesharing using a similar method to the one Lord Mandelson is suggesting.***

If Lord Mandelson proceeds with his plans, it will actually encourage the more determined filesharers to use Wi-Fi hijacking and PC hijacking more frequently and so increase the chances of innocent users being falsely accused and disconnected.

Alternatively, determined filesharers will shift to using alternative techniques such as encryption and proxy servers to avoid detections.

In any event, most internet connections have multiple users. Even if the guilty can be correctly identified, disconnecting them will leave other innocent users deprived of their internet connection?

Thousands of innocent people could get caught in Lord Mandelson’s filesharing flytrap, yet the main offenders will be undeterred and undetected.

More concerning is that these initial steps could be a slippery slope to policing and censorship of the Internet.

And they want you to pay for this new scheme

What’s more, Lord Mandelson thinks that ISPs (and, by extension, their broadband customers) should have to shoulder some of the financial burden which will run to millions of pounds.

This means that all broadband customers (most of whom do not illegally fileshare) will be forced to pay a ‘copyright enforcement tax’ to be put at risk of being falsely accused and disconnected.

Now that’s what we call rough justice.

So what’s the solution?

We agree that illegal filesharing needs to be tackled.

The Digital Britain report, published in June 2009, proposed a largely sensible and balanced approach with a package of measures such as warning letters, court based action against serious offenders and a public education campaign alongside the important incentive of better legal services. If this approach failed, said the report, then and only then, would tougher measures be considered.

Then came Lord Mandelson’s new plan in September 2009 – before the consultation on the June proposal had even completed – with a dramatic U-turn, jumping straight to the tougher and more draconian measures.

Just before the Bill was published it was leaked that the Government had another change of heart and added what was ‘section 17’ the carte blanche power to do almost anything else they want to reduce filesharing.

We are adamant that the measures proposed by Lord Mandelson are wrong in principle and won’t work in practice.

**survey of 1,083 Wi-Fi access points in Ealing conducted on 11^th October 2009, 41% were unsecured or used WEP security. There is nothing special about Ealing. It was a location chosen at random by TalkTalk to demonstrate the ease with which people can find unsecured Wi-Fi networks.

*** TalkTalk (and AOL) is the only major ISP whose customers have not have been accused in this way. This is because, knowing the flaws in the method, it has consistently resisted all requests to divulge customer details to rightsholders who asked for them even though it has been threatened with legal action. Now we have acquitted Tiscali they have stopped divulging their customers’ details too.