Three strikes?

"Lord" the right Honourable Mandelson.

Is he right? is he honourable? I'd like to propose that he's neither of these things. He's not right, in that he's totally wrong about his proposed three strikes legislation, and he's most certainly not honourable by any definition of the word other than "it's a word you can stick in front of your name if you are a Lord". If one uses the definition that one would expect - adhering to ethical and moral principles - then he's pretty much the opposite of honourable. I'd go so far as to say that he's a lying, cheating, unethical scumbag who takes backhanders wherever possible, schmoozes with the rich bunch, and uses his position for financial gain over and above any service to our country.

And don't forget that he is unelected - he's in a position of power that was gifted to him by Gordon Brown, who is also unelected.

But, to the matter at hand. Three Strikes legislation, at it's simplest, is intended to stop people breaking copyright legislation by cracking down on people who share files. If they are identified to have broken the law enough to be given three warnings, then they get their internet cut off. At first glance, this might not seem too ridiculous, but give it two glances, and the holes immediately appear. For one - who is supposed to spot this supposed lawbreaking? ISPs in the UK are legally protected from the implications of carrying third party traffic - they have no liability for the traffic over their network, and they achieve this by one simple rule - they don't look at what you do. It's equivalent to the royal mail not being required to open everyone's letters to see what's in them.

The only way to enforce such legislation would be to force ISPs to examine traffic and report "bad" traffic to some central authority. Of course, some people in government would love the right to do this, but as soon as you start enforcing examination of the data flowing over the network, then the ISPs will become responsible for every type of traffic they carry, and that's the thin end of a very large, very fat wedge. What happens when you post a picture of your children and someone considers that child pornography? Do you think it's reasonable for some third party to have the right to read every email you send, and listen in on every phone conversation you have? looking at what the Communications Decency Act proposed, and the legal response to that, it's exactly the end result that will inevitably happen as soon as you enforce examination of the contents of your internet traffic.

The proposal also fails to take into account personal liability and responsibility with regards to who owns or maintains the internet connection. What happens if my child gets three strikes on my line? does my internet business lose connection? What happens if the line is a shared or communal line? What about one strike each for three students using the same internet connection?

The real nail in the coffin is the idea that the traffic itself will remain visible and examinable. As soon as this legislation comes into effect, then the first thing that will happen is that people will switch to using software that forces encryption of their traffic, making it much harder (and potentially impossible) for someone to examine the traffic and determine that they are breaking the law. There's proof of concept software out there already that shows that this works, is real, and is viable- the only thing stopping people switching to use it is any real reason to move away from the software they are comfortable with. Having their internet disconnected would be enough of a spur for most people.

And what does Mandelson achieve by bringing this legislation into effect? Will it make people buy more media? Will curtailing copying put more money into the pockets of the creative industries? Virtually every third party survey and poll says no. People who consume media will often buy that media, so stopping them from consuming it will reduce sales, and stopping piracy does not mean that all of those copies would be converted into sales. The math and rhetoric simply does not add up.

One thing that will add up however, is Peter Mandelson's bank balance. I'm sure he'll enjoy discussing this with his friends once he pushes it through the commons.