Broadband

The EU has introduced an amendment to a telecoms law which campaigners and IT lawyers fear could bring in the controversial “three strikes and you’re out” approach to file sharers.

British ISPs have been united in their opposition to the approach heralded by copyright holders, in particular the BPI which represents record labels, which would see people considered to have downloaded content without permission warned, then suspended before being finally cut off if the file sharing continued.

The wording of the amendment to the Telecom Packet was wrapped in legalese but it essentially promotes ISPs and copyright holding bodies and authorities “cooperating” and potentially sharing data on web users to protect legal services. The amendment’s most controversial paragraph lays out: “National regulatory authorities and other relevant authorities shall also as far as appropriate promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the protection and promotion of lawful content in electronic communication networks and services”.

Whilst the wording might sound more ‘legalese’ than draconian, campaigners are concerned about the scope that could be attached to protecting and promoting legal content. They fear the amendment could to provide a basis for rights holders to force ISPs to take action against their subscribers and possibly even decrypt information to see whether it contains unauthorised files. It is not so much the amendment’s current wording but the possible future interpretation of it which has led to disquiet.

British MEP Malcolm Harbour claims that there is no dark intent behind the amendment which was attached to a telecom bill after a EU vote in April went against the ‘three strikes and you’re out’ notion.

He claims the law is about protecting consumers rights and, it would be fair to say, that is a fair summation of the Telecom Packet law which seeks to set up rules governing the deployment and overseeing of ‘next generation’ networks. However, it is the amendment on file sharing which has been added to it which campaigners are concerned about.

The concern of bodies such as the Foundation for a Free Information Infrastructure (FFII) is that it vague wording was added to a seemingly unrelated bill to give those supporting “three strikes and you’re out” another chance to pave the way for file sharers to be acted against by ISPs on behalf of rights holders.

They are not alone. Susan Hall, ICT and media partner at law firm Cobbetts has been disappointed at the way the amendments have been approved and points out there are already laws against illegal downloading.

“Having already been defeated once this time the amendments have been slipped in the back door and ISPs will have to deal with the outcome,” she said.

“The amendment will cause several problems. Firstly, many broadband users routinely transfer large files which are encrypted. Many of these are acting quite legitimately and in order to determine whether or not such large files are or are not the produce of illicit file sharing the ISP will have to carry out an unprecedented degree of analysis of its customers’ traffic.

“Furthermore, computers are frequently shared, within offices and homes, and inadvertently, where wrong-doers “piggy back” on an inadequately secured Wi-Fi connection. All this raises the spectre of people losing internet access - for reasons which are no fault of their own.

“Given the business and social importance of loss of internet access, this seems wholly disproportionate to the scope of the offence - there are civil and criminal sanctions available to rights’ holders who can prove illegal downloading.”

Tags: EU