Assessing America’s ’6 Strike’ Regime

There’s been rumblings for a while for the US to have it’s own 3 strike law, but many thought that it wouldn’t happen given the implications. Much to the dismay of many, it appears that ISPs and the entertainment industry in the US have agreed to a 6 strike regime.

It has happened. US ISPs have agreed to a “six strike plan”. According to the plan, the first strike would essentially be an e-mail notification which would include tools to secure your Wi-Fi connection. The second strike would be an additional notification. The third strike would have a “read receipt” to ensure you got the message. The fourth strike is another notification with a “read receipt” just like the third strike. The fifth strike is temporary suspension of your internet connection. You have to contact your ISP to discuss reconnection and that might include “copyright education”. The final strike, the sixth strike, would be mandatory “mitigation measures” which might be a heavily throttled connection to name one possibility.

Apparently, there’s no disconnection, but ISPs must have a disconnection policy in place. There is an appeals process which has a $35 filing fee. If the ruling is unsatisfactory, then the ruling must be challenged in a court of law.

In essence, this whole thing completely bypasses government and, more or less, the court system to ensure a guilt upon proven innocent regime. To my knowledge, serious crimes work under an innocent until proven guilty method. So, in a way, you get more leniency in parts of the system if you murdered someone.

The EFF has posted on the issue as well. EFF notes that the “copyright education” would most likely be a trip to a site which is filled with big media propaganda. As an example, one page repeats several myths perpetuated by the industry like the following:

content theft costs the U.S. economy more than 373,000 jobs, $16 billion in lost earnings, and $3 billion in lost federal, state and local government tax revenue.

Let’s get straight to the point. These claims are unsubstantiated, unreliable, and thoroughly debunked and have been for years. These numbers are completely made up. Even if they weren’t based on the overwhelmingly dismissed methodology of one download means one lost sale, it’s just as flawed.

Why Such an Agreement is Bad News

This agreement raises a number of concerns. One big one is how is it possible to avoid false accusations in the first place? To take a very concrete example, Ireland has a three strikes system in place. The system, last month, ran into controversy over false accusations. An investigation was launched into how 300 people wrongly received first strike notices. There was a suggestion that it was caused by, oddly enough, daylight savings time. This really spoke to the differences on drawing up a plan such as a three strikes plan and implementing it.

Still, how flawed can the methodology be to tie an actual person to an IP address? One study suggested that even a printer can be falsely accused of copyright infringement. It’s not that people in the IT world are incompetent in developing a system to find someone who downloaded a movie, it’s more the fact that no system is exactly feasible period given things like proxies, IP address spoofing and a very long list of other methods people can employ to obfuscate their IP address.

Worse than a system that is inevitably fraught with technical problems is the fact that this risks the national security of the United States. This was revealed by non other than the NSA when they “yelled” at France for implementing a three strikes law. Sure, you can say a lot of bad things about the NSA, but they were very correct in being highly concerned over the implications of things like a three strikes law, or, in this case, a six strike agreement.

If something like the US’s new 6 strike agreement were to be widely successful with hundreds of thousands of notices being handed out to people, this will prompt resistance. It’s not a matter of if, but when. There will be increasingly sophisticated methods to hide ones tracks to share files. There will be a very large number of people who will be very interested in developing such techniques to continue to share files undetected. This will generate interest from those who have more shady reasons to hide their traffic and they will inevitably ride on the coat-tails of those who have more ideological reasons to develop privacy enforcing technology. This would only serve to undermine the intelligence communities efforts to monitor those who wish to do harm to the country because it will be harder to monitor communications. Indirectly speaking, implementing an agreement like this serves to help terrorists. This would, no doubt, explains a lot about why the government didn’t decide to enact a three strikes law in the first place – because they knew it would harm national security.

In addition to all of this is the fact that things like a “three strikes law” is a violation of human rights. This was revealed by none other than United Nations Special Rapporteur, Frank La Rue who rightfully points out that there is a good reason to be “alarmed” at countries that choose to disconnect its users in such a manner. From our report when the paper was released:

“While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely,” it reads. “The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.”

Even though there is plenty of those who would point out that the US’s “6 strike agreement” doesn’t necessarily force disconnection, there’s didn’t seem to be much that would not curtail someones right to free speech. Even throttling would raise concerns that free speech is being hampered. Last time I checked, freedom of speech is part of the US constitution as well.

Every inkling of knowledge I personally have of the US and it’s laws says that this agreement shouldn’t survive in a number of ways, but I also happen to know that capitalism entities tends to be above the law at times. It’s not like every major corporation even pay taxes anymore in the US anyway to name one example. So, I really can’t say if this will become the norm or not in the US. Still, it’s a very scary prospect because there will be a very large push by these industries to make other countries implement such laws. I say the implications of this remains to be seen, but it certainly doesn’t look good at this point.

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