Guilt by IP address - an absurd & dangerous notion
I got a letter from the government the other day, well not quite, it was from Thames Valley Police and it was several years ago, but I've got Chuck D's opening line from the Public Enemy classic Black Steel in the Hour of Chaos echoing round my head this morning.
The letter in question advised me I was the owner of a car which had been spotted on CCTV doing something foolish and almost certainly contrary to at least one quoted section of the Road Traffic Act.
Here's the point - it was beyond doubt I was the registered owner of the car, yet the opening gambit from the police was rather civil considering that bad driving on British roads costs far more lives than unlawful file-sharing of copyrighted content on the internet.
But I don't want to get too far into the game of sound bites, quoting dubious statistics or comparing apples with illegal iPod content. I'll leave that to the BPI and the rest of the pro-music lobby who subscribe to Draco's principles of law.
The question from the police was simple. I'm the owner, but was I driving the car at the time of the alleged offence? Yes I was, but to close a story no further action was taken due to lack of evidence.
A car and its number plate are closely analogous to an internet connection and its IP address. And this analogy holds rather well when considering that both a car and an internet connection can be used antisocially, unlawfully and also as a tool for other crimes committed outside of a vehicle (or in the real world).
And they're both extremely useful - almost essential - tools of modern life.
There are many reasons why owners of a vehicle may not be guilty of such alleged offences:
- Car loaned to a friend
- Vehicle stolen
- Number plate cloned
- Misidentification from human error or ANPR glitch
- No actual offence committed, device malfunction or human error based on limited CCTV angle?
Police forces around the country acknowledge the above points, that's why they are careful before issuing fixed penalty notices to car owners. That's also why only a small subset of offences may be punished by fixed penalty, and even then fines are moderate compared to what some law firms are demanding from file-sharers for a single alleged offence.
Continuing this theme, there's a right to go to court instead of paying a fixed penalty for traffic offences. In court the police have to prove the offence was committed and that you were driving the vehicle at the time of the alleged offence (with the exception of company-owned vehicles, when I believe company directors must keep proper records of who was driving a vehicle at any given time).
With the Digital Economy Act 2010 and its attempt to tackle file-sharing there is no recognition that internet connection owners (akin to car owners) may not be in charge of their connection at the time of an offence.
Examples in parliament were given by Don Foster (3rd reading) and Alun Michael, John Whittingdale, Peter Luff amongst others at the 2nd reading of a wide range of organisations this could affect, from free WiFi at cafés to schools, businesses, libraries and university halls of residence.
But this list should include ordinary households. Exactly as in the case of car owners there are legitimate defences for all connection owners:
- Car loaned to a friend - I let someone else use my internet
- Vehicle stolen - my computer has been hacked and is being used by criminals, or my WiFi bandwidth is being stolen
- Number plate cloned - For some types of computer crime it is possible to use a false IP address
- Misidentification from human error or ANPR glitch - ISPs aren't infallible. IP addresses are often allocated dynamically by need. You may not even have the same IP address now as you did 30 seconds ago.
- No actual offence committed, device malfunction or human error based on limited CCTV angle? - A copyright owner claims you have been unlawfully sharing their work. Enough said.
One of the largest travesties of the Digital Economy Act is that unless you're prepared to pay, you won't even have a chance to clear yourself in court.
I used the word clear rather than defend because, unlike road traffic offences, there's no presumption of innocence in the Digital Economy Act; you could have your internet disconnected on a mere allegation.
This Act sets a dangerous precedent: the connection owner becomes legally liable without evidence of his or her involvement. This in my opinion is a very serious breach of our human right to be treated fairly by the law.
Police forces and the legal system have just about got to grips with the use of electronic devices for detecting and prosecuting road traffic offences. But there's still a few grey areas, such as fallibility of electronics, human error and identification of the driver of the vehicle.
Consequently there are some safeguards, police forces are prepared to produce additional evidence, photographs through the wind shield of the driver, even credit card receipts showing the alleged driver to be in the vicinity around the time of the alleged offence.
Proving guilt in an internet copyright infringement case is many times more technically complex than proving a driver broke the speed limit, yet the Digital Economy Act starts from an opposite perspective with respect to safeguards preventing miscarriages of justice.
The connection owner is liable unless he or she can prove otherwise. It could indeed be difficult to prove an offence has even been committed, but that doesn't matter because the wording of the Act mentions only "allegations."
This whole act is a shambles. It will lead to stress and misery for ordinary innocent internet users. It sets a dangerous and absurd precedent that could be carried into further laws in our haste to catch terrorists and other nasty people. It is ironic that acts like this do little if anything to catch the real serious criminals. As the masses turn to encryption the real criminals will find it even easier to hide amongst their midst.
This dangerous act must be repealed without haste.
Release Notes:
- Thanks to @majectic_whine yes I didn't mean Chuck Norris, now corrected.