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UK Agency Could Order ISPs to Reveal Customer Info

Over-regulating won't achieve anti-piracy goals, American attorney says

UK Agency Could Order ISPs to Reveal Customer Info

LONDON -- A new UK Digital Rights Agency may be authorized to force Internet service providers to provide information on customers accused of copyright infringement.

That data could include the names, addresses and other personal information of those suspected of illegal downloading or uploading, and the agency may be able to ask ISPs to notify them, cut off their Web access and anonymously collect info on repeat infringers. Copyright holders could be furnished with all that information via court order.

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The proposal was published last week by the UK Intellectual Property Office. British communications ministers Stephen Carter and David Lammy stated the government would prefer solutions from within the entertainment business, but was dead-set on ending illegal peer-to-peer file-sharing, reports Computer Weekly.

The proposal is linked to a section in a Digital Britain report. Responses will be accepted by the government up until March 30.

AVN Online contacted Detroit-based adult industry attorney Corey Silverstein, a former website network owner who counts hosting companies among his clients. After digesting the entire British proposal, he offered his perspective.

"The first and most obvious question is, Should American-based ISPs be concerned? The simple answer is in the near future, no, but perhaps down the road, possibly in the coming years similar legislation could be proposed in the United States," Silverstein said. "It's important to keep in mind a few important things. First, this particular legislation is in the very early stages in the UK. There are a number of time-consuming steps before the proposed legislation becomes binding law."

"Should such legislation become law, it is not enforceable in countries outside of the UK," he continued. "While I am not an expert in UK law, the legislative intent is clear; and that intent is to curb and/or altogether stop P2P networks with copyright infringement being the basis. ISPs and Internet users in the UK alike should be very concerned about the potential of this proposed legislation."

Silverstein said the problem with the ideas and proposals such as those presented in the potential legislation is that much like Britain often creates laws parallel to those of the United States, these proposed laws will likely catch the attention of some lawmaker in the United States who may attempt to create similar legislation. 

"The idea of ISPs being forced to notify alleged infringers and block access to customers is terrifying," he said. "First, the idea of ISPs being turned into a judge, jury and executioner is alarming on its face. Potentially you could have ISPs blocking access just to avoid being dragged into a copyright infringement lawsuit and having to defend against injunction after injunction."

"On the flip side, what happens to the ISP's customer when it is shut down unjustly? Now you have the potential for a customer suing its ISP for damages as a result of the ISP blocking access to its sites," he added. "ISPs would be forced to have every client sign complex agreements containing waivers and indemnification clauses and be forced to attempt to predict every possible contingency. Which leads me to my next concern about ISPs becoming data collection centers: If ISPs are forced to collect 'anonymized information,' surely the next step will be laws geared at how ISPs are supposed to collect, save and safeguard that data."

Silverstein also asks that age-old question, Who watches the watchers? Who is going to monitor the activities of the ISPs to ensure that the data is not abused? Also, what happens if the ISP falls prey to thousands of hackers seeking to steal or damage potentially highly sensitive data?

"While British MPs Stephen Carter and David Lammy surely have legitimate interests, that being protecting intellectual property and materials with legitimate copyrights, their proposals are extreme and will lead to more problems with all ISPs and their customers, as they will both be forced into complying legislation that puts them both at risk,"

Silverstein said. "More disturbing is the suggestion that the legislation could go even further if the industry doesn't change. While it is difficult to imagine how much further they could go, it's clear that while the intent seemingly has a legitimate purpose, they don't appear to be even remotely concerned with the potential consequences to ISPs and their customers."

The British government's goal also is to "make the UK the world's favored destination for creative companies to grow and to invest," but Silversteain doesn't see how over-regulating and the potential running ISPs and customers alike out of the UK and to countries with less stringent laws will achieve their goal. 

"The idea of creating an agency to in essence act as the police of these laws and yet suggest that customers and ISPs alike could go to this agency ‘to resolve disputes quickly and economically, and where consumers will find a champion where needed' -- are you kidding me?" Silverstein said.

"The agency on its face is being created to police these proposed laws and ensure that ISPs are acting within their guidelines, so why would they ever go to the agency trying to penalize them for any sort of dispute resolution? The best comparison would be having a prosecutor also act as a defense attorney."

Also offering insight was the Free Speech Coalition's executive director, Diane Duke.

While the FSC whole-heartedly supports all efforts to stop copyright violations, it remains cautionary when legislation is too broad or too extreme, and continues to advocate solutions from within creative industries.

"Piracy of copyrighted content has reached epidemic levels and governments worldwide are cracking down on the end-users who download pirated content," Duke told AVN Online. "We are concerned about the proposed limitations on the anonymity of Internet users, and question both the efficacy and wisdom of attempting to limit access to persons to the Web."

"It is admirable that the UK is publically stating that they want the industry to come up with the solution and are willing to back off of the legislation if they do," Duke added. "The industry is the best entity to find and implement solutions for copyright infringement. I hope that they heed the UK's government warning and do."






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Diane Duke
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