A suspect package

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The ‘telecoms package’ is a potentially dangerous piece of legislation that will lead to many users losing internet access.

The ‘telecoms package’ is winging its way through the European Parliament under the watchful eye of French president Nicolas Sarkozy.

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Our representatives have voted in favour of a number of controversial amendments, which, despite supporters’ claims to the contrary, seem aimed at barring broadband access to anyone who persists in illegally downloading music or films – or is suspected of so doing.

Sarkozy insisted on a ‘three strikes and you’re out’ scheme for France in June and now, as European President, he is suggesting that European law follows suit. Virgin Media’s recent 800 warning letters to alleged file sharers prove that some internet service providers (ISPs) seem keen to jump before any legislative pressure is applied.

Though allegations about the intent behind the late changes to the package have been vehemently denied by their proponents, it is difficult to see any other reason for them. If the amendments were made for the reasons proponents claim, they are largely pointless. But if the reasons are those suggested by opponents, the amended package has the potential to be very dangerous.

Lawful use

The amendments talk about avoiding barriers to lawful use of the internet by its users. But what is ‘lawful use’?

The amendments to the package would put the pressure on my ISP to make a pre-emptive judgement as to whether my action was fair or unlawful – and the probability is that it would be highly unwilling to take my side.

Second, the amendments’ defenders have claimed that the requirements placed on ISPs, to co-operate with content providers and regulators with regard to informing users ‘as required’ about illegal uses of the internet, are simply a ‘public service’ function and have nothing to do with targeting suspected downloaders. This seems disingenuous: part of the internet’s nature – as a distributed system which could continue to function even in the case of nuclear war – means it is uniquely adapted for communications that various authorities regard as illegal, immoral or subversive. If an ISP were required to make public service pronouncements on the legal status of every doubtfully legal use of the internet it would soon slow traffic to a standstill. Interestingly, the only ‘illegal’ use mentioned in the amendment is intellectual property (IP) infringement.

The amendments’ defenders state that nowhere is IP enforcement mentioned in the package. This goes to the very heart of the objections to the amendments. There are already ample civil and criminal sanctions available to rights holders who can prove illegal downloading, but they do not include forbidding the convicted party access to the internet – a remedy rather akin to banning someone from driving following serious motoring offences.

A web of problems

This, however, is only the start of the issues that the amended telecoms package will throw up. Many broadband users routinely and quite legitimately transfer large encrypted files. To determine whether or not such large files are or are the product of illicit file sharing, the ISP will have to carry out an unprecedented degree of analysis of its customers’ traffic. Given the scale of such analysis, it is difficult to see how the rules will be enforceable.

Also, computers are often shared, both deliberately and inadvertently. Given the business and social importance of the loss of internet access, the punishment seems wholly disproportionate to the scope of the offence.

These amendments shift the focus away from the actions of the individual, and their legality or otherwise, and instead pressure the infrastructure providers to make the environment difficult for potential infringers. Unfortunately, this leads inevitably to blanket bans and ‘rule of thumb’ approaches. When in doubt, an ISP will just cut you off – why should they have the hassle?

The only people who will suffer under the package will be the users – and the internet will be a poorer place for it.

Susan Hall is a partner at Cobbetts

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