Somewhat to my surprise, “three strikes and out” turns out not to be Lord Mandelson’s latest contribution to the postal dispute.
Considering all the state roles which encumber Lord Mandelson, Baron of Foy in the County of Herefordshire and of Hartlepool in the County of Durham (at the last count: First Secretary of State; Secretary of State for Business, Innovation and Skills; President of the Board of Trade; Lord President of the Council), I suppose he can hardly be blamed for taking his “disconnection of downloaders” policy out of the oven while it was still only half baked.
Still, it does seem unusually hapless, for reasons including those set out in Lilian Edwards’ excellent post here.
As Lilian suggests, the proposed law seems to place an enforcement burden on a householder, to compensate for ISPs’ inability to narrow down exactly who might be responsible for a given download.
It looks to me as though the proposals will need to include the creation of a new offence, viz. “Failure of the subscriber to control the behaviour of any individual who gains access to the subscriber’s domestic internet connection”. That should give rise to some fascinating case law.
Then there are the other, slightly more esoteric technical options – such as infecting a home PC with malware capable of downloading material and then forwarding it to the attacker’s destination of choice via a peer-to-peer connection; or an insider attack at the ISP – associating illegal download activity with the domestic account of someone who had nothing to do with it…
These may be less probable attacks, but they are certainly feasible – and the higher the stakes, the greater the incentive for an attacker to consider ways of landing some unsuspecting, legitimate subscriber with the disconnection notice. After all, what tools does the average householder have at their disposal with which to disprove such an accusation from the ISP? Again, I look forward to the first court cases on those ones.
I appreciate, of course, that this is ‘just’ another of those classic instances where there’s a fundamental fracture between the policy-makers’ understanding and what is realistically feasible in terms of the technology. That said – if Lord Mandelson claims the mandate to set out a strategy for a Digital Britain, I think we’re entitled to expect that the strategy should be well-founded on a robust understanding of the technology involved.