A recent IPKat blog on the latest judgment of Sabam v Scarlet made me realise how complex the matter is and how easy to give misleading and inaccurate analysis can be. The case on which the European Court of Justice will give its assessment discusses whether it is legally and technically possible to require an Internet Service Provider (“ISP”) to filter and monitor internet users by checking what files they share via peer-to-peer, in particular files which are somehow identified as being unauthorised.
In deciding whether ISPs should be obliged to have filters, the Court needs to weigh a series of elements, including the protection of data and freedom of rights. The problem with filters is that the ISP may have to collect and analyse IP addresses which, especially if static, may enable the website operator to see the IP address users’ personal data. This could identify him/her, and thus, if disclosed, breach the data protection requirements of the Data Protection Act. Therefore, this is a clear legal impediment to ISPs even if they wanted to monitor users’ internet traffic.
Blocking of websites is even more problematic, for example if you go to www.anonymizer.com and download the software, the ISP “sees” nothing. Likewise, if you go to Google DNS and route your connections via their DNS server, the ISP sees nothing. Therefore, the difficulties that an ISP has in relation to “filtering” are also of a technical nature, rather than just legal and ethical (copyright protection v rights to privacy).
Joe McNamee, Advocate to European Digital Rights, rightly summarized the issue
“the bottom line is that, if you are happy to ban encryption and happy for Internet access providers to check the contents of all of your communications (whenever the technology is available to do this) and happy to pay for the capital outlay to achieve this… then filtering may be possible (expensively) some day in the not too distant future. Otherwise, you’re opposed to filtering – unless you’re happy with filtering that doesn’t actually work. That’s really all there is to the issue. Things only get complicated when you start explaining why this is the case”.
This debate comes at an interesting time when Google (and US) are battling China’s ongoing monitoring and censoring regime, exposing the topic to the complexities of legal/technical/political and moral issues. Interesting!
Post written by Francesca Re Manning, consultant to CAS-IP