The diffusion of so-called ‘three-strikes’ initiatives adopted by the copyright provisions of the UK’s Digital Economy Bill, and policies of other European nations, is going to be a serious set-back for privacy and freedom of expression. This is not the intention of lawmakers. To their credit, politicians of all parties in Britain, for example, believe they have a targeted policy designed to protect the music industry from illegal file-sharing. However, it is not likely to do more than put a finger in the dike of an out-dated business model for the music industry and the Hollywood film industry, which will have unintended, but quite predictable, negative implications for privacy and freedom of expression.

What are these initiatives? Essentially, they are legal requirements to monitor Internet users in order to identify those who are illegally sharing music or other copyright protected content over the Internet. Those who are discovered will be warned and disconnected if they continue to infringe copyright.

The major argument for these initiatives is that they will stop illegal activity – stealing copyrighted material. Support for the idea is based on the simplistic view that unless you are in support of theft, you must support these efforts to disconnect those who infringe copyright laws. I imagine that it is this claim that brings politicians in line on such initiatives. However, this anti-theft claim is misguided in several ways.

First, it is not likely to accomplish its objective. Historically, legal and technical efforts to block file sharing have led to alternative approaches. It is most likely that these legal remedies will not accomplish their intended objective. The costs of these initiatives will be hugely out of proportion to its benefits.

Secondly, and more importantly, they will have negative side-effects, that those who support these initiatives either do not understand or do not appreciate. In order to disconnect users who violate copyright restrictions, the government must force agencies – most often the Internet Service Providers (ISPs) – to monitor use. In short, government policy will put ISPs in a position where they must monitor their users for the government, just as in more authoritarian regimes that seek to block political content. This is likely to involve deep packet inspection, roughly analogous to the post office opening our letters before they are delivered to our homes. In other words, ISPs will be violating the privacy of individual users at the behest of government, but in the process, jeopardizing the trust that users have in their ISPs.

This will not only undermine trust in the Internet, the Internet industry, but also governments. And knowing that the content of Internet communications are being monitored, this is likely to have a secondary, but no less chilling effect on freedom of expression. In short, the implementation of these three strikes policies will undermine some of the most valued aspects of the Internet as a new democratic medium of expression.

Thirdly, enforcement of this policy will lead to the disconnection of some households and establishments. Almost all government policy in the developed and developing world has sought to support the wider up-take of the Internet as both an economic and social policy. In one stroke, protectionist policy will work against all the considered efforts aimed at fostering the wider diffusion of the Internet and Web.

In my view, there is a need for more informed debate on the merits of these policies, and the development of alternative approaches to supporting content producers. There are a number of legitimate questions that policy-makers have not considered carefully:

–       Only a small percentage of artists in the music industry make substantial money on the sales of their music, such as through CD sales. In many cases, file-sharing supports the rise of new talent within the music industry. So, are three strikes policies only supporting a small fraction of the music industry?

–       Are there new business models that would enable the music industry to be more sustainable in the digital age? If not, why are governments and the industry not focusing their efforts on up-dating their business models, rather than trying to legally enforce an out-dated business model?

–       Why did are these policies being moved through parliaments with minimal debate and analysis?

–       Are there approaches to preventing illegal file sharing that will not violate our citizen rights to privacy, freedom of expression, and freedom of connection?

What can be done? Many experts across the Internet community seem fatalistic and exasperated by these three-strikes initiatives and the support they have garnered in France, the UK and Ireland, as a few examples. However, they fail to fully appreciate the degree to which the public is unaware of the nature of these laws and the consequences they will have for their privacy and freedom of expression. Already, there have been political movements that have been spurred by such initiatives, such as around the Pirate Party. For example, the UK Pirate Party notes: “Pirate Party UK is the political party of the digital age. We represent the changes demanded by technology that governments and industries are resisting with all their might. We want copyright and patent laws to be reformed to fit their purpose, and the privacy of the individual and freedom of speech to be upheld and protected.”

Such developments illustrate the degree to which citizen rights in the digital age will be centered on the Internet. If the rise of a Pirate Party seems extreme or too much of a single-issue party, then think about the Green Party and how its focus on environmental issues has helped reshape the agendas of the other parties. But such movements are but one manifestation of public concern among those who understand the Internet and Web.

It is absolutely critical that we do more to educate the public about how the Internet works and therefore how these well intended efforts will undermine their privacy. If this can be done, politicians might face a more informed public reaction to these policies.

Secondly, the public needs to begin to prepare for more surveillance and greater invasions of privacy, such as by adopting systems to encrypt their communication. The saying goes that if you are doing nothing wrong, you have nothing to fear, but everyone will be monitored under this new regime, not simply those illegally downloading at some extreme. If the public has been concerned over social networking sites and search engines, they will be very concerned indeed about these governmental initiatives that will be far more intrusive and universal.

Technological developments are creating an increasingly powerful network of networks that can support more democratic forms of participation – from greater access to new sources of information to the greater ability to network with like-minded individuals in ways that can hold other institutions more accountable. However, policy developments are moving in the exact opposite direction with Internet filtering on the rise, and legal moves in a variety of areas, such as around copyright protection that could have a negative impact on the values that have underpinned the worldwide success of the Internet.

I would encourage you to become more informed about these efforts to curb files sharing, such as through the UK’s Digital Economy Bill, and speak to your local elected officials and friends about how to stop these well intended but misguided initiatives.

For further information on the issues raised by these initiatives, see:

– French passage of a Three Stikes Law

– Passage of the Digital Economy Bill with little debate

– Eircom plans in Ireland, saying they will impose a three strikes graduated policy to their broadband customers