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Should ISPs Be Fined...

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Ashley Highfield | 13:04 UK time, Thursday, 19 June 2008

...if they knowingly carry illegal content?

This issue has been around for as long as the net has (see this from 12 years ago).

And it's a really tricky one, and one risks upsetting all interested parties here, not least the ISPs, the music rights holders, and the Open Rights Group (ORG).

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.

Charman 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".

Image from Richard Carter on Flickr.

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.


  • Comment number 1.

    "the Post Office has no idea what is being carried, and has no technology to do so"

    -- Ever heard of a little thing called X-Ray? The technology is available, and is used every time you fly somewhere. Sure, it won't tell you if a CD's contents are illegally copied or not, but it will help you at least broadly categorise the contents of a package. That doesn't make it right or acceptable to use it every time you post something however, and the same is true of the Internet.

  • Comment number 2.

    Interesting article. Bill Thompson wrote a related piece recently on the BBC website about this very topic:

    Virgin territory for ISPs

    I'm not sure I agree with him here though:

    "Like almost every technically-competent internet user of my acquaintance I've used BitTorrent to get my hands on a copy of a TV show that I missed, taking advantage of the kindness of strangers who bothered to record and upload the shows for fans because the companies that make and broadcast them choose not to.

    However I also go out and buy the DVD box sets as soon as I can. "

    And I don't feel like a criminal, because I don't see why downloading a copy of a show that someone else has recorded should be seen as a breach of copyright while recording it myself onto a DVD is not."

    I'm not so sure. Isn't that like saying "I'll watch BBC products on the television, download BBC programmes on my PC iPlayer and check the BBC weather report on my mobile. But I won't bother with buying a TV licence, I might just get that when I can....."

    I'm sure the BBC wouldn't be too happy about that and quite right too. BBC staff have mortgages to pay and children to feed.

    I worked for a small software company in the late nineties who had to survive on shoestring budgets and royalties based on sales of the software products we wrote. Every copied CD/DVD meant less royalties for the company and staff. The company went bust in 2001, and illegal copying made a contribution to that, so I saw the effect that illegal copying or downloading can have.

    So what I am saying broadly is I agree with Andy Burnam, what is illegal offline should also be illegal online. That includes child porn, fraud and illegal downloading. The age of the 'free' internet has passed, we just have to learn to live with that.

  • Comment number 3.

    Declaring that a certain port/protocol (bittorrent, IRC, FTP) contains more illegal content than others is dubious at best, as they can all be (and are) used for legal purposes.

    There is no way to judge the legality of binary data flowing through an ISP; So no, ISPs can’t knowingly carry illegal content.

    Leave copyright *infringement* for the courts to deal with, at least we would have more transparency in that process.

  • Comment number 4.

    I completely agree with johndrinkwater. The only answer to the question posed by Ashley is a resounding "No".
    silverfoxuk says that "what is illegal offline should also be illegal online"; forgive me if I'm missing the point, but that is already the case, there is no "should" about it. And statements like that when talking about who polices content is the sort of water muddying that the BPI and others like them thrive on.
    Whatever the Politicians, BPI and others may believe ISPs can do, there is just no way ISPs can reliably police the unencrypted content flowing through them, let alone encrypted content.

  • Comment number 5.

    I think your missing a key factor. Although ISPs can identify types of traffic it is much harder to identify what that traffic is.

    For example an ISP could tell that BitTorrent was being used (looking for magic bytes or the format of messages etc.) but they could not tell whether the content is legal.

    All then can see is data moving between two peers and what that data is. Even if they know what that portion of data is it is still very hard to know if it's legal or illegal without all of the file. And even with the entire file it is still almost impossible unless you have an entire list of all copyrighted content and an insane amount of CPU to do the comparison (bitwise comparison is entirely useless for media data).

    Unless you are suggesting all of a certain protocol is illegal then the ISPs really do not know if illegal content is moving through their network.

    One of the key problems with filtering is if it takes to long then you slow down all traffic. The CPU, Disk and Memory requirements of tracking all traffic and comparing it against bad lists is not practical. Even if it was it may not even be legal (see RIPA). And would be rendered useless if the links where encrypted.

    Why don't we concentrate on getting rid of spam first, is much more of a problem.

  • Comment number 6.

    Be careful with that Post Office analogy...

    Eg. . . . . A delivery firm today announcing new on-demand high speed delivery service for large high volume parcel shipments. Entry pricing to consumers comparable to the cost of a first class stamp. Reasonably priced premium service options expected to be pitched at those needing to have delivered, large quantities of CDs and rented-DVDs for personal use. . . . . . Recording industry cautiously welcomes potential for building large-scale distribution while raising concerns over possible abuses of copyright through illegal distribution. . . . . . Spokesman for Deliveries-Are-Us said today "It is not our place to specify how users should use our new premium service option. We do however expect high demand from consumers requiring rapid access to music and movies, packaged and delivered from legitimate sources. We reserve the right to re-route certain size/shape packages down slower delivery routes in order to protect the integrity of our service, but we cannot be held responsible for looking inside those packages." . . . . . . A report out today revealed that 80% of CDs and DVDs were being obtained free of charge from non-legitimate sources. Heavy demand from users has contributed to the commercial success of firms such as Deliveries-are-Us, and nationwide roll-out of similar premium services are expected in the near future promising a new era of mail and parcel distribution encouraging economic growth and prosperity for the people of this county. . . . .

    Follow the money!

    Follow the money!!!

  • Comment number 7.

    I always find this topic interesting and slightly amusing. I work for an ISP who don’t provide any connectivity (at least not since dialup became pretty much obsolete), just your basic web services – most of our business is in design.

    However, we do have a huge volume of mail traffic that we handle on behalf of many clients. Similar, and more specific suggestions have been made that we should be monitoring email traffic for illegal materials.

    What has been said in previous posts is true, it is impossible to be truly confident of what content is legal or illegal using automated processes. The ones that come close are so processor intensive that it raises operational costs considerably. We have enough difficulty in dealing with the unbelievably amount of SPAM out there – approximately 98% of all the emails that hit our servers don’t make it through. To do it manually is simply out of the question so how an ISP can be accused of “knowingly carrying illegal content” is beyond me.

    More than that, although I’m not a fan of the post office comparison – there are certain ethical and security decisions. I don’t want someone rummaging through my mail looking for a photocopy of something that was done without proper permission. How can I trust that that person won’t open my bank statements and steal information useful for assuming my identity?

    Much of this traffic is protected via SSL and other secure encrypted systems – but if responsibility has to be assumed by ISPs then they will have to block this kind of traffic just in case it’s some P2P client using an encrypted system.

    Personally, I think it’s stupid to try and blame the ISPs. It’s so hard to do anything without being watched these days. Even if you’re doing something that isn’t illegal, it’s nice to know that you have some anonymity - something that would be taken away if ISPs were forced to start monitoring everything.


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