Consumer Focus have recently published my expert report on the issues that arise when attempting to track down people who are using peer to peer (P2P) systems to share copyright material without appropriate permissions. They have submitted this report to Ofcom who have been consulting on how they should regulate this sort of tracking down when the Digital Economy Act 2010 (DEA) mechanisms that are intended to prevent unlawful file sharing finally start to be implemented, probably sometime in 2014.

The basic idea behind the DEA provisions is that the rights holders (or more usually specialist companies) will join the P2P systems and download files that are being shared unlawfully. Because the current generation of P2P systems fails to provide any real anonymity, the rights holders will learn the IP addresses of the wrongdoers. They will then consult public records at RIPE (and the other Regional Internet Registries) to learn which ISPs were allocated the IP addresses. Those ISPs will then be approached and will be obliged, by the DEA, to consult their records and tell the appropriate account holder that someone using their Internet connection has been misbehaving. There are further provisions for telling the rights holders about repeat offenders, and perhaps even for “technical measures” to disrupt file sharing traffic.

From a technical point of view, the traceability part of the DEA process can (in principle) be made to work in a robust manner. However, there’s a lot of detail to get right in practice, both in recording the data generated by the P2P activity and within the ISPs systems — and history shows that mistakes are often made. I have some first hand experience of this, my report refers to how I helped the police track down a series of traceability mistakes that were made in a 2006 murder case! Hence I spend many pages in my report explaining what can go wrong and I set out in considerable detail the sort of procedures that I believe that Ofcom should insist upon to ensure that mistakes are rare and are rapidly detected.

My report also explains the difficulties (in many cases the insuperable difficulties) that the account holder will have in determining the individual who was responsible to the P2P activity. Consumer Focus takes the view that “this makes the proposed appeals process flawed and potentially unfair and we ask Government to rethink this process”. Sadly, there’s been no sign so far that this sort of criticism will derail the DEA juggernaut, although some commentators are starting to wonder if the rights holders will see the process as passing a cost/benefit test.