ZDNet Australia previously reported on Excite@Home’s plans to take down Optus@Home broadband accounts of customers found to be downloading copyright or pirated material. The ISP says it has the right to randomly monitor its users' activities, because this intent was set out in its Acceptable Use Policy (AUP), which customers had agreed to in their contracts.
According to Electronic Frontiers Australia (EFA) executive director Irene Graham, the Acceptable Use Policy "theoretically" pardons Optus@Home's actions, however “it doesn’t excuse the fact that it is an invasion of privacy”.
Describing Optus@Home’s terms and conditions as an “unacceptable Acceptable Use Policy”, Graham told ZDNet Australia that although users have the choice to switch providers, there is a fear that other carriers will follow suit.
“They are claiming users have a choice and don’t have to agree to their Internet activity being monitored, however, if other ISPs follow on users will not have a choice at all,” Graham said.
According to Graham, the Australian Telecommunications Act states that it is illegal for ISPs to snoop on customers email, however, the question remains does the act prohibit ISPs from surveying traffic?
“It’s [Optus's actions] certainly questionable, irrespective of the Telecommunications Act,” she said.
Graham said if Optus believes individuals are downloading material, there is nothing to stop them from reporting the incident to the police. “The merits of randomly monitoring content in order to catch an individual is an over reaction given that Optus is not liable, which I don’t believe they are.”
Under the Australian Broadcasting Services Act, ISPs are not to be held liable for traffic passing through the Internet that they are not aware of, according to Graham.
Although the Act focuses mostly on the downloading of child pornography, Graham believes it would also apply to the downloading of copyright and pirated material.
“If the illegal material is not brought to their attention, the ISP is not liable. Optus is proactively trying to find out what users are doing, which is certainly an invasion of privacy,” she said.
Monitoring the activities of ISPs
Telstra denied it is surveying its users activities, however, a spokesperson for the telco said that customers are obliged by its policy to obey the law.
“We maintain the position of not actively monitoring individual content,” the spokesperson said.
As for the future, Telstra said there were no plans to follow Optus’s lead at this stage.
Australian ISP OzEmail also claims it does not monitor the activities of its users, however, it remained tight-lipped about whether it was planning to do so in the future.
Despite the ISP’s silence on its future plans, the spokesperson said it is conscious of the consumer’s need for privacy.
Dingo Blue told ZDNet Australia in an email that it is not the general rule of the ISP to actively monitor individual usage, however, there are exceptions to the rule.