I guess it was inevitable that I would write something about the news that ISPs are going to start sending out warning letters to people file sharing, but what strikes me as impractical about this scheme is precisely the same concern I had about the idea that the Government would start to monitor Internet traffic.
When I wrote that piece in the Times I came in for some flak from some people saying it wasn't about storing data at all and I said I would follow it up explaining the point I was making in more details. I failed to do that until now, so hopefully my fellow blogger Unity will be reading.
Here's the problem, how does the ISP know you have downloaded illegal content with inspecting and storing the data at the same time? Let's take one of the most popular of filesharing utilities, Bittorrent. This network system works on the basis that peers share parts of a file. Often there is only one single seed that has the whole file and the rest only have bits of it.
The protocol works by downloading chunck of binary data that alone are useless until it completes and merges them all together into the original thing that was wanted. An ISop therefore cannot easily 'know' what is being shared without mirroring the download itself from start to finish. This becomes even harder if say the torrent file being used requests a file with an innocuous name that is really the latest REM album.
Given this problem, what actually appears to be being proposed will be a blanket assumption that if you connect to Limewire, Bittorrent etc then you must be doing something illegal. It ignores the fact that many commercial operations now use these methods for distributing their software as it takes the pressure off their own bandwidth consumption.
I personally download a number of images online that are perfectly free and legal to distribute, but without the ISP reconstructing that data all they see is "bandwidth hungry dizzy, must be up to no good". The evidence of an IP address connecting to another IP address is not evidence of what was going on.
This is the point I would have loved to elaborate on in my Thunderer piece. Think about it for a minute, if a log records that I sent traffic from IP A to IP B, where IP B is a suspected criminal, it does not follow that the traffic contains illegality without inspecting it in full.
On the point of filesharing as well, there are networks out that that are DSA encrypted. Unless the ISP monitors from the personal pc, i.e. they put software on your pc so than can see what the end result of the encryption is, then they cannot know that was being shared or transferred was illegal.
I imagine that there will be many test cases on these proposals if they come into being. There will be people who will say "I did not download illegal content" and unless the ISP has a copy of what they did download, then simply stating "you connnected to Limewire and downloaded lots" is not proof of copyright infringement.
In short, this sort of proposal will only work if (a) ISPs start inspecting the content of traffic as well source and destination which has all sort of privacy questions around it, or (b) they take the blanket assumption that a bandwidth hog is being dodgy and tar everyone with the same brush.