Pulling the plug is not the answer

Dr. Richard Tynan and I have a piece in Saturday’s Irish Examiner discussing the implications of Eircom’s “phased disconnection” scheme. Unfortunately it doesn’t seem to be on their website, so here’s the full text:

Pulling the plug is not the answer

Earlier this week Eircom announced that it has started “the phased disconnection of file-sharers” on its network – colloquially known as a “three strikes” policy.

The key players in this procedure are Eircom, the Irish Recorded Music Association (IRMA) and technology firm Dtecnet. Under the procedure IRMA will provide Eircom with the IP addresses of machines that Dtecnet claims to have found to be infringing the copyright of its members. This will then trigger a disconnection procedure by Eircom starting with a letter, moving on to temporary suspension of an account, and ending with the disconnection of the account for up to a year.

In Ireland, one must generally have engaged in some form of wrongdoing in order to be punished. It is clear that the disconnection of one’s internet access is quite a severe punishment in today’s digital society.

But one problem with the approach adopted by Eircom is that the wrongdoer and the person who is disconnected may not be the same person.

The evidence used to identify alleged filesharers is unreliable.

Recent studies in the US have shown that copyright holders often act on flimsy evidence – in one case, accusing three laser printers of illegal filesharing. Similarly there is substantial evidence of UK users being wrongfully targeted. This may in part be due to deliberate tactics to sow confusion.

For example, the operators of filesharing site ThePirateBay have confirmed that they insert random IP addresses into the information they provide as to who is sharing what file.

But whatever the reason it is likely that innocent Irish users will face wrongful accusations.

In addition, in the era of wireless technology it is very common for an internet connection to be shared by many members of a household. In fact, Eircom offers wireless routers as part of its broadband bundles. This means that cutting off internet access based on the actions of one user will have a detrimental effect on all the others using the same connection for education, entertainment or business purposes.

If a husband is accused of filesharing, should this have the effect of preventing his children from doing their homework, or his wife from working at home?

It is clear that in the household context, the alleged wrongdoer and the individuals punished are not the same and the impact can be wholly disproportionate.

There’s also a risk that users may be accused based on somebody else piggybacking on their wireless connection. In November 2009 it was revealed that Eircom had negligently supplied insecure wireless modems, affecting up to 250,000 users.

Consequently anyone within the signal range of these users can illegally share files without the account holder’s knowledge – and there is even an app for the iPhone to make this process easier.

Eircom state on their website that they will not disconnect business customers but the effects of these measures on a small business could be catastrophic where they have an ordinary household account (as many do).

Through no fault of their own, a small business might find their internet connectivity withdrawn because of the actions of another family member, a malicious neighbour or even because they happen to be unlucky enough to be assigned the same IP address as one ThePirateBay has randomly inserted into files sharing the latest U2 album. This is worrying in a situation where a person’s livelihood is at stake.

One criticism of the current approach is that it shifts the burden of preventing illegal file sharing onto the ISPs, driving up the cost of broadband for private users and businesses. While this is true, it in fact goes much further than that. This logic of this deal – particularly if it is extended to other ISPs – potentially places a burden onto small businesses such as hotels and coffee shops to police their users’ activity. This will come at a significant cost to these businesses who have limited resources in these hard times.

Quite apart from these criticisms, there are also significant problems of principle. Internet access is today a fundamental right and a necessity – especially as the government moves more public services online – but this system threatens to take away that right based on nothing more than a private agreement between IRMA and Eircom.

In other European countries proposals for similar laws have been the subject of public consultation and debated by national parliaments. Here, however, there has been no legislation and no Government or Oireachtas input of any sort. Indeed the full details of the deal between Eircom and IRMA have never been published. A recently passed European law requires that disconnection of internet users should be subject to “adequate procedural safeguards” and “effective judicial review” – this deal, however, doesn’t appear to provide for either.

Instead, it allows users to be disconnected with no right of appeal to any independent body.

In summary, the Eircom / IRMA deal and the “graduated response” procedure is a worrying development for Irish internet users – one which has been undemocratic in its adoption and is likely to be unreliable in its application.

TJ McIntyre is a Lecturer in the School of Law, UCD and chairman of Digital Rights Ireland

Dr. Richard Tynan is a Postdoctoral Research Fellow in the School of Computer Science and Informatics, UCD