February 18, 2008
UK ISPs and Piracy Monitoring

The latest in continuing controversy about the role of Internet service providers in monitoring or having any responsibility or culpability in the actions of its customers comes from the United Kingdom, where Mark Ward from the BBC reports on governmental pressure directed toward ISPs to reject net access to those who use their Internet service for pirating copyrighted content.

Ward writes about a new consultation document that has been circulated in the UK this week, advising the government that ISPs should be brought into "the fight against piracy." However, the Internet Service Providers Association (ISPA) has come out in staunch opposition to the suggestion, pointing out that "the 2002 E-Commerce Regulations defined net firms as 'mere conduits' and not responsible for the contents of the traffic flowing across their networks.

Part of this rests on the question of whether we look to ISPs as common carriers in the telephone company model, and subsequently whether the government would want to ever grant them any sort of editorial control over what their users are using their communication service for. The ISPs are smart to point out that, if they don't have the right to interfere with the free speech efforts of their users in general, why should they make an exception in this case? If they are common carriers, then why should the government require them to interject themselves in this case?

At this time last year, I ran a multi-part series here on the C3 blog entitled Access vs. Censorship, based on some work I did in the Harvard University Kennedy School of Government back in 2006. My intent was to look at how U.S. media policy oscillates between promising freedom of access to all, while also emphasizing the need for controlling free speech online. My intent was to look at how the conflicts between these two mentalities create conflicts and mixed messages and how the government should ultimately prioritize access over control, even as both must remain a concern. In particular relevance to the current situation, I wrote:

Ithiel de Sola Pool, in his 1983 book Technologies of Freedom, points out that much of the danger in public policy comes from the very different approaches taken toward communications policy from a print model (free regulation in general); the common carrier model (government assuring nondiscriminatory access for all); and the broadcasting model (government-licensed private owners as publishers). Policy toward new technologies, from cable and satellite television to the Internet to satellite radio, and so on, have raised questions on how to categorize these issues and explain some of the schizophrenic response and the juggling between issues of access and restriction. Pool writes, "It was in the 1920s, however, that communications policy in the United States seriously lost its way. Without adequate thought, a structure was introduced for radio which had neither the libertarian features of the common carrier system nor those of the free market."

With governmental resources always taxed, and the rate of technological change increasing exponentially for Americans, trying to maintain this dual focus on media policy is problematic. These two governmental duties must both be maintained, in the real sense that the government is ultimately responsible for ensuring a referee status to the free market to ensure as equal a footing as possible for the participants in capitalism and that government must help protect citizens from harming one another.

The issues I wrote about in February 2007 seem just as relevant in February 2008, and while the focus was U.S.-specific, this struggle rings true with many other governmental Internet policies as well.

For more on these issues, see my previous writing here on the C3 blog on net neutrality (see here and here, for instance).

Also, see this story from February 2007 about movements in the U.S. government to require ISPs to archive all tracking data on online activity of U.S. users indefinitely.