Should ISPs Be Fined...
...if they knowingly carry illegal content?
But it's also a critical issue that is not to be ducked.
I am at heart a proponent of net neutrality: for example, I believe that ISPs should deliver traffic over their pipes for the same price, irrespective of the value of the content. The user wants to be able to choose their ISP confident that all (legal) content will be treated in the same way.
But ISPs increasingly do have the ability to easily determine the type of content going over their lines (to "traffic shape" or "packet sniff"), so should they in any way be responsible? If they can, should they stop illegal traffic? The music industry thinks they should as part of a wider "value recognition right".
The Open Rights Group thinks they shouldn't. In a press release
last week (n.b. correction 3 p.m. - this press release is in fact from 2006), > two years ago the then executive director Suw Charman countered said: " This proposal [of a grouping of music industry bodies] is ill-conceived and grasping. Suggesting that ISPs and telcos should be responsible for the content transferred by their users illustrates how poorly the music industry understand the net."
This is also increasingly a political issue, with Labour and Conservative apparently taking a broadly similar line. Last week at the Broadband Convergence Thinktank, the culture secretary Andy Burnham took the line that "[w]hat is unacceptable offline should not be acceptable online, whether it was fraud, child porn, or theft of intellectual property." [From Andy Burnham: Is The Culture Secretary Right To Call For Tighter Policing Of Qeb Content? at the Guardian's Organgrinder.] As far as I can make out, this merely reiterates a view espoused by Conservative party leader David Cameron a year ago where he said :
ISPs can block access and indeed close down offending file-sharing sites. They have already established the Internet Watch Foundation to monitor child abuse and incitement to racial hatred on the internet.They should be doing the same when it comes to digital piracy.
Perhaps if the ISPs do not install packet-sniffing content, i.e. remain truly net neutral, they cannot and should not be forced to monitor content.
Perhaps the ISPs risk bringing this on themselves.
If the ISPs do install sophisticated software, with the intention of filtering content and implementing variable charging, then perhaps they should at that point also become more responsible for making a reasonable effort to stop illegal traffic.
says the said that proposals to make ISPs responsible for content sent down their pipes are: "like charging the Post Office a fee in case some of the packages it delivers have illegally copied CDs in them, and making them responsible for the contents of every parcel they deliver."
That got me wondering whether the Post Office does have any obligations to stop or report illegal content. In fact, it's almost the opposite: the Post Office has specific immunity from prosecution for carrying illegal content under Article 96 of the Postal Act 2000 (a fun couple of hours spent last night trawling through this act). And I can't find any obligation on the Post Office to not carry content that they might know to be illegal. In fact, it seems the only time the Post Office can go sniffing for content is when ordered to by the secretary of state in the interest of national security or to "facilitate the attainment of any object which the Secretary of State considers it necessary".
But this is perhaps the point: the Post Office has no idea what is being carried, and has no technology to do so. If the ISPs implement such technology to try and shape traffic, are they opening Pandora's Box to a world where they are then also required to report users' illegal content down and uploading?
Ashley Highfield is Director, BBC Future Media & Technology
N.B. Editors note. This blog post was originally published yesterday and contained a factual error which has now been corrected (changes can be viewed above). Our apologies.