Nigel Carson, a computer forensics investigator and a key witness in the 2004 Kazaa case, was called to the witness box today by iiNet's legal team to answer questions on whether an IP address was enough to identify a movie pirate.
Carson, currently an investigator for forensics firm, Ferrier Hodgson, and a key witness for the Australian Federation Against Copyright Theft (AFACT), was asked the question by iiNet's general counsel Richard Cobden.
The "IP address is the starting point of investigation," Carson told the Federal Court. In the 2004 Kazaa case, he had made the claim that it was possible to locate the physical computer and user of the machine by tracing the IP address.
AFACT had relied on public IP addresses (those issued by an ISP) and BitTorrent client identifiers in order to "bombard" iiNet with infringement notices. AFACT expected the ISP to pass the notifications on to its customers.
Cobden established with Carson that a typical household may have multiple users, be issued dynamic IP addresses, and, where wireless routers are concerned, access to the internet by unknown external parties — all of which would make it difficult to pin an act of piracy on an individual.
Carson today agreed that following the acquisition of an IP address, in order to identify the person behind computer activity, an investigator would typically be required to use provisions available to the NSW Police or the Australian Federal Police, such as a court order or warrant.
A key plank of iiNet's argument for not forwarding AFACT's notifications so far has been that privacy provisions in the Telecommunications Act prevent it from matching publicly available IP addresses to specific account holders. It has maintained a warrant would be required.
"The next phase of investigation, in general terms," Cobden said to Carson, "would involve interviewing the account holder, or persons living at the premises, and conducting a forensic analysis to determine whether certain material was available." Carson agreed.
Cobden also attacked Carson's claim that in the instance of a cable-based modem, the IP address would rarely change. "So a cable user can't disconnect?" asked Cobden. Carson conceded that a modem could be "powered down", which may result in the router being issued a new IP address by the ISP.
The case continues with iiNet's managing director Michael Malone set to take the witness stand this Thursday.
AFACT also this morning said it would subpoena correspondence between ISPs and the Internet Industry Association (IIA), which the federation hopes will establish that the IIA is not a disinterested party.