ISP code a US-style privacy sell-out

Some may welcome it as a conciliatory and positive step towards resolving disputes between ISPs and copyright holders, but the industry's new code of practice also turns Australia away from the privacy protections of its European heritage, and towards an American-style regime where privacy is less sacred than commercial interests.
Written by David Braue, Contributor

In an era of increasing pervasiveness of American content, it can come as no surprise that the distinctly Australian argot of 15 years ago is rapidly disappearing. "Ketchup" is now as acceptable as "sauce", "napkin" is preferred over "serviette", "apartments" are rented instead of "flats" and the popularity of the movie Kick-Ass has put paid to the UK-Aussie tradition of using an "r-s-e" ending instead. If this keeps up, we'll soon be putting tires on our cars, and our kids will be kissing mommy goodnight after donning pajamas for bed; many already are.

I mention this because it is increasingly clear this week that a similar trend is driving our telecommunications environment. Australian linguistics may have tended towards our British and continental ancestry in the past, but, judging by the terms of the new Communications Alliance code of practice, it appears that we are looking to the US, and not Europe, for guidance on how ISPs should function in the future.


We pledge allegiance to the copyright holders of America: Australia's ISP industry is veering away from the pro-privacy sensibilities of our European roots. (Screenshot by David Braue/ZDNet Australia)

Launched just days before Hollywood lobby group AFACT starts yet another attempt to get the courts to accept its arguments against iiNet, the code of practice is both curiously timed and curiously structured. Here, after all, are guidelines that formalise the long-muddy practice of enforcing copyright downloading by Australian customers; it will not disconnect customers, as is possible under New Zealand's hated three-strikes law, but it will position ISPs as moles for the (largely American) content industry, by having them as intermediaries that have to notify AFACT and its ilk when a consumer appears to be an unrepentant downloader.

It may be nice to see the industry formalise some steps to avoid a repeat of the iiNet fiasco, but the current policy leaves many questions unanswered.

For example, it allows customers to appeal notices if they believe they have been issued in error — but how exactly is this to be done? Are customers now expected to log all their online activity as a pre-emptive strike against potential copyright action? In a he-said, she-said case, whose view would prevail? And will this encourage heavy illegal downloaders to leave open Wi-Fi access to their home networks so they can, if caught, claim that they had been the victim of a drive-by pirate?

Then there's the whole idea of deciding which activities may infringe copyright. This is such a broad term that it's silly to expect ISPs — that are already working all hands on deck to keep our internet services ticking over and provide service to customers — to become instant authorities on what is and is not copyright infringement. They will simply be taking AFACT's word for it.

It may be nice to see the industry formalise some steps ... but the current policy leaves many questions unanswered. Are customers now expected to log all their online activity as a pre-emptive strike against potential copyright action?

Even the notification process is riddled with problems. Notifications, for example, will include the name of the copyrighted work involved, and the time it was alleged to have been downloaded. But this puts a lot of faith in the integrity of pirates' naming systems; it's easy for determined pirates to get around by simply changing the actual download links of the files they offer.

Consider: if a knowingly infringing consumer clicks on a link called "Breaking Dawn.avi", but actually downloads a screener of Midnight in Paris, has the copyright of Breaking Dawn been violated? How would the law handle this? Presumably, an infringement notice alleging the download of Breaking Dawn would be factually incorrect; can the ISP be reasonably expected to filter all BitTorrent traffic, cache and watch it, as well to ensure the integrity of any later breach notifications?

There are some nice concessions: rather than simply peppering ISPs with infringement notices, rights holders will need to be accredited to ensure their detection processes are acceptable. They'll initially be limited to 100 infringement notices per calendar month, per ISP, saving ISPs the administrative burden of processing a flood of notices. And there is an acknowledged right for ISPs to be compensated for the time and manpower burden that they'll incur in administrating the process; this is at least an improvement over internet-filtering methodologies that seek to make censorship an intrinsic part of Australian internet access.

The scheme is a supremely American policy — recognising commercial interests of all involved, but giving the content industry carte blanche to monitor Australian internet users' activities and unilaterally pursue action against alleged infringers. It puts the ISP industry in lockstep with rights holders who are, it seems, more than happy to continue their half-assed commitment to local content rights, while holding ISPs to the most interventionist code of practice since Stephen Conroy began talking about an internet filter.

If there were ever any question about the idea of net neutrality taking hold in Australia, this code of practice quashes it once and for all. Net access in Australia will, it is clear, be subject to the mandate of special interests rather than any governmental edict, such as the one over which Verizon has so furiously challenged US President Barack Obama and his pro-neutrality Federal Communications Commission (FCC).

In America, personal privacy is less a fundamental right than a vague and malleable concept; as Facebook has shown over and over again, personal data is only protected until some private enterprise figures out the right business plan to use that data to make squillions. Then it's full steam ahead, and damn the consequences; in the US, private industry regularly holds the government over a barrel with the threat of massive litigation. Sound familiar?

That we are sliding towards the American policy will surprise nobody: it's the latest in a long series of concessions to American interests that increasingly see Australia as an Asia-Pacific territory of the US in cultural, political and economic terms.

The extent of this industry policy is even more troubling, because it comes on the same day that we learn that Europe has gone down exactly the opposite path...Copyright holders in EU countries have no right to force ISPs to block users from downloading illegal content.

This is even more troubling, because the policy comes on the same day that we learn that Europe has gone down exactly the opposite path.

Yes, no less than the European Union Court of Justice has declared that copyright holders in EU countries have no right to force ISPs to block users from downloading illegal content. In this case, a royalty agency had asked Belgian ISP Scarlet to filter and block attempts to download copyrighted works; the court said that this would be a gross violation of personal privacy protections, including the right to protection of their personal data, and their "right to receive or impart information". The decision "ensures that ISPs will not be burdened by monitoring obligations", Cleary Gottlieb Steen & Hamilton partner Thomas Graf told Reuters.

This is a significant decision, because it implies that internet users don't give up their right to privacy simply because they are using a telecommunications service that can be intercepted. This principle has long been upheld on other media through anti-wiretapping laws that are in effect in Australia and elsewhere.

Internet access, however, is a different matter; anonymity can apparently not be guaranteed, and ISPs have also just handed privacy protections to the content industry on a silver platter — consigning Australian internet users to online life in a Panopticon of surveillance and intimidation.

The decision may be welcomed as a pragmatic and responsible approach to the issue by some, but its announcement this week — and the participation of iiNet — suggest that the battle waged against iiNet has made the expansion-focused ISP weary of the fight, and wary of martyrdom simply to preserve its users' rights to privacy. However the High Court case turns out this week, AFACT — and the legion of American rights holders behind it — have already won.

What do you think? Is the new code of practice a step in the right direction? Or should ISPs keep fighting to protect users' privacy? And is this policy workable?

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