UK file-sharers to be “cut-off” — Sanctions
The thing which everybody is talking about—and actually the only thing which has really changed in the revised proposals—is what to do with persistent illicit file-sharers. Setting aside the issue of actually detecting persistent illicit file-sharers (I’ll get to that), there’s the matter of what you do to them.
The answer is: whatever Ofcom decides is appropriate.
The key difference between the old proposals and the new ones is that the old ones set a trigger mechanism whereby Ofcom would be bound to instruct ISPs to take certain kinds of action if it was deemed that other measures (i.e., warning letters) weren’t effective enough. Under the new proposals, the Lord Mandelson (or his successor) would have the power to not just consider Ofcom’s regular reports into the whole situation, but also take input from stakeholders (where “stakeholders” means “the content industry”) and instruct Ofcom to take action whenever he (or she) likes. The reason for this change in direction is that “stakeholders”—that word again—complained (sorry, “raised concerns”) that the old proposals wouldn’t be rapid enough to be effective and large chunks of the industry would presumably collapse.
The Digital Britain report stops short of advocating disconnection of Internet subscribers, for a variety of reasons: there’s a question over its legality, the problem of it being a blunt instrument, and the fact that, without actual legal proceedings, the level of proof required is likely to be far too low to justify disconnection.
Under the new plans, “temporary disconnection” is on the table, except that all of the reasons for not proposing it in the first place still remain.
Assuming conclusive proof was required, and obtained, before any action was taken, what happens if the person who the connection belongs to isn’t the person doing the downloading? If a legal case was brought, a court would impose a fine (even if it was to be paid out of a teenager’s paper-round earnings).
Gordon Brown’s vision for a connected, thriving, digital Britain, reflected in the Digital Britain Report, has at its heart the principal of Internet access being a universal service in the same way that a telephone line is now. BIS’s revised proposals seek to undermine this in an unprecedented way. This is no carrot and stick: it’s simply a vision—a promise—with an added stick.
As much as Internet access isn’t a universal service now, it is rapidly approaching that stage for many. Internet access is essential for work for a great many people, and not just at work. Aside from service issues, it’s impossible to justify simply taking that away, potentially because of the actions of somebody else.
The other mooted sanctions suffer from similar problems, although obviously to a lesser extent.
“Port and application blocking” is a notoriously crude method of preventing some application from operating; moreover, it can only ever work very temporarily, and invariably incurs a not insignificant amount of collateral damage (as anybody who has run into problems using perfectly legitimate new applications with an ISP who attempts to “traffic shape” peer-to-peer file-sharing). As more use is made of Internet connectivity, for example for delivery of video on demand and voice-over-IP services, the potential for this to be detrimental to legitimate services is increased.
Bandwidth-limiting, although having a more uniform approach (and so preferable from certain respects) will be more likely to have a detrimental effect upon perfectly legitimate services.
The trend here is straightforward: all of the suggested techniques for limiting illicit peer-to-peer file-sharing also limit access to legitimate applications, and will very likely impact others beyond the guilty party. All of this assuming that proof of illicit file-sharing was conclusive.
While BIS is keen to stress that the sanctions are merely options, and Ofcom, taking technical advice from various sources, will ultimately decide what is appropriate to impose, from a technical perspective the options are severely limited. It is simply not possible to reliably block illicit peer-to-peer traffic without blocking other applications (and any solution claiming to be able to do this will produce false-negatives as well as false-positives).
Therefore, it is reasonable to assume that—excepting the event of some technological breakthrough which defies current understanding—any sanctions will be along the lines of those described above. These are clearly unacceptable, and run counter to the stated aims of the Digital Britain report and the policy work surrounding it.
