ISP snooping law would make piracy lawsuits AFACT of life

The world’s movie and music studios – along with a large number of unethical scammers preying on consumers’ fear of litigation – have made a nice little business out of collecting records about the swapping of illegal movies and music. However many of these lawsuits are
lodged as placeholders against ‘John Does’ for one simple reason: the studios can’t tie infringing IP addresses to the people that were allegedly using them.

Indeed many ISPs may not even record this information down to the level necessary to establish legal fact: the likes of iPrimus iiNet and Internode would manage millions of emails phone calls and Web sessions every day; it’s hardly likely that they’re recording the information for posterity. Even where they do have records ISPs have to respect overriding privacy principles (and legislation) ahead of the interests of copyright holders no matter how vociferous or determined they might be.

Now we have word that the government is looking to a European telecommunications usage-logging policy as inspiration for Australian legislation that could see ISPs forced to record the source username assigned IP address Internet service used duration and more information of everything you do online. They would also if the European model is followed be required to register the contact details of anybody you email or call – even over VoIP services – including the recipient’s address.

Major news outlets wasted no time attacking the news – via the Web #ozlog hashtag and more – as an invasion of privacy but none seem to have made the link yet to what would seem to be the most obvious use for this legislation: giving the film and music studios an easy-to-use tool that would allow them to fill in the blanks on tens of thousands of lawsuits – and hold the entire Internet-using world to ransom.

Government plans to force ISPs to record all Internet usage details would deliver Australians’ personal usage details straight to lawsuit-hungry studios
(Public Domain: Giotto di Bondone: Kiss of Judas; Padova. No. 31 Scenes from the Life of Christ: 15. The Arrest of Christ
(Kiss of Judas). (1304-06))

Frustrated by obstruction against their efforts to sue the entire world en masse studios would find this data to be an absolute cornucopia of ammunition in potential damages lawsuits. It would also open the door to a totally new wave of consumer fraud intimidation and extortion as opportunistic crims demand one-off payments to make putative litigation disappear.

Comments from the office of Attorney-General Robert McLelland would suggest this proposition isn’t so far-fetched: “This is not about web browser history” a spokesperson said over the weekend. “It’s purely about being able to identify and verify identities online”.

Slow and steady scope creep has changed the terms of engagement in the recording industry’s ongoing battle against online file-sharers: back in 2003 for example the John Doe approach was struck down by a US federal appeals court; this April the tactic was explicitly allowed.

The Australian Government also seems to be steadily rolling over for the interests of the recording industry. In May the McLelland suddenly decided Australia would sign the Council of Europe Convention on Cybercrime after disregarding it for years. Then there was the revelation that a number of ministers from some of the world’s largest countries had been hashing out substantially-revised Anti-Counterfeiting Trade Agreement (ACTA) negotiations with decidedly pro-industry copyright law reform policies. The noose not to put too fine a point on it is tightening.

The prospect of ISPs being forced to collect and provide specific information on users would seem to be critical in the industry’s case against file sharing – and it appears the government is increasingly ready to hand over its citizens’ heads on plates. This shift in the wind even has implications for the high-profile AFACT-iiNet lawsuit which iiNet won in a dramatic decision reaffirming the concept of user privacy and freedom from ISP intervention back in February. With the new policy in place iiNet could very well be painted as obstructing due process of law.

With user-specific data mandatorily collected and available by court order a newly-empowered AFACT – which is currently fighting its February court loss – could steamroll over ISPs that have become the last bastion of privacy protection for users whose every online activity would be laid open for perusal and legal cherrypicking. iiNet may have won the battle against AFACT but the A-G’s proposed legislation could very well hand the industry the war.