Sky blocks Newzbin, important legal and technical questions need answering

[Francis Davey]

2011/12/15 Igor Mozolevsky <mozolevsky at gmail.com>:
>
> 1. Identify, within all of the electronic communications of all its
> customers, the packets relating to HTTP;
> 2. Identify, within that traffic, the URLs supplied by the Applicants
> (MPAA); and
> 3. Block access to those URLs.

No, that's not how it works (as I understand anyway). First there is a
filter on IP addresses, then those that match the IP list are passed
through to a proxy that filters on specific URLs.

Sure, that is a general filter, but only on IP address, which the ISP
needs to know anyway for routing purposes.

>
> Would this amount to interception or surveillance under Directive 2000/31?
>

Seems unlikely given that its authorised by court order.

> Further, the BT injunction is not limited in time either, is it?
>

Yes - though there is liberty to apply if circumstances change (and
third parties have a right to apply for variation if they are
affected).

>
> The three paragraphs that address the proportionality are very thin
> and appear to be based on the fact that the cost to BT would not be
> too high since BT already used Cleanfeed. Although to me, it seems
> bizarre that the judge made explicit references to Cleanfeed in the
> order (whereby arguably showing judicial endorsement), instead of a

No, that's entirely understandable. The preference is for court orders
to be as clear as possible and, in particular, for it to be clear what
the person targeted by the order must do. Tying the order to a
particular technology makes it easy for BT to know what to do in
compliance.

> generic blocking mechanism... The judge made no assessment of the
> rights of privacy of BT's users as a whole, merely he was "satisfied"
> that the curtailing of Art. 10 rights was proportionate. For example,
> I wouldn't be surprised if Cleanfeed logs every referral regardless of
> whether that referral is subsequently blocked.

Hmmmm. BT almost certainly have to log traffic data and then have to
destroy it after a fixed period of time under the data retention
directive. I'm not sure what Cleanfeed logs or may lawfully log. This
is where Richard Clayton would be useful to us.

>
> Surely the more appropriate and proportionate course of action in the
> BT case would have been for the MPAA to seek an order against the
> upstream ISP of Newzbin, as the latter would be more effective,
> involve a direct action against the wrong-doer and not unnecessarily
> burden intermediaries?

Well, courts do not usually second guess a property owner's choice of
enforcement mechanism. From the point of view of the court it has to
decide whether to make a s97A injunction or not. There are obviously
other problems with going after upstream ISP's.

All moot though since https appears to get around the block (if not,
I'd be interested to know, I'm taking a particularly keen interest in
website blocking at the moment).

-- 
Francis Davey