3 Strikes Rule

Where do we stand in this debate about disconnnecting individuals found engaged in illegal file sharing? TalkTalk takes a pragmatic view on this debate. The company regards education as the most appropriate strategy. More importantly the company suggests that:

We recognise the importance of persuading people currently engaging in illicit file-sharing to migrate to lawful services, are supportive of the emphasis in the Digital Britain Report for the need for new business models and want to work collaboratively with other players.

However, we are worried that this intrusive approach will prevent cooperative new business models from evolving as ISPs and content providers will be effectively set against each other, and there will be less incentive for rights holders to adapt. This will mean that the underlying problem will perpetuate for much longer and the development of internet services in the UK will be detrimentally affected.

TalkTalk raise an important point - and this is to do with the possibility of the 3-strikes rule being counter-productive. Why? What is the incentive in providing music enthusiasts with attractive options in terms of choice and value, when those found seeking free sources can be easily disconnected?
As a lawyer looking at the 3 strikes rule what concerns me is how have we as a society allowed a government to allow the music industry to act as judge and the ISP, to become unwilling executioners.
Here is the rub:

One of our internet security experts this morning visited The Highway, a residential road in Stanmore, Middlesex.

Within a couple of hours he had identified 23 wireless connections on the street – more than one-third of the total – which are vulnerable to Wi-Fi hijacking. These connections are either completely unsecured (6%) or use WEP technology (28%) which many users think is secure but is in fact easily hackable by anyone with a laptop computer.

To show how vulnerable people are to unauthorised filesharing, our expert downloaded legal music files from two connections, including Barry Manilow’s hit Mandy and the soundtrack from the 1992 film Peter’s Friends.

Of the 68 Wi-Fi connections on the road only one used the strongest available security (WPA2). The majority (65%) used WPA security which may become hackable in the future. Indeed a vulnerability has already been discovered.

Scarily, The Highway is actually comparatively well protected. Our expert conducted a Wi-Fi survey of central Ealing in West London on 11th October and found that 41% of 1,083 Wi-Fi networks were vulnerable to unauthorised use.

Connecting to a Wi-Fi network is just one way that illegal filesharers can use other people’s internet connections, leaving innocent people vulnerable to disconnection. PC hijacking is another.

The clear implication is that millions of people would be at risk of ‘superhighway robbery’ under Mandelson’s plans.

The risk of innocent people being disconnected is not hypothetical. Consumer organisations such as Which? have been contacted by hundreds of people who have been wrongly accused of filesharing using a similar method to the one Mandelson is suggesting.

This is why we think the Mandelson scheme is wrong-headed and naïve. The lack of presumption of innocence and the absence of judicial process combined with the prevalence of Wi-Fi hijacking will result in innocent people being disconnected.

And the plan won’t work in practice. It will actually encourage offenders to use Wi-Fi and PC hijacking more frequently and so increase the chances of innocent users being falsely accused and disconnected.

It is absurd to make people, in effect, legally responsible for the traffic on their internet connections and require them to prevent any unauthorised traffic.

There is precedence for miscarriages as one couple found out.

Additional background here.