Irish ISP Admits To Sending Out Hundreds Of 'First Strike' Notices To Innocent Account Holders

from the yup,-this-system-works-so-well dept

Mon, Jun 20th 2011 10:19am — Mike Masnick

With the UN report condemning three strikes, we've seen a few governments suggest a bit more caution about such laws, but over in Ireland things are getting strange. You may recall a few years back the Irish ISP Eircom got sued for not implementing a three strikes plan. While it first fought back, it eventually caved and agreed to implement a three strikes plan. There was apparently some back room dealing as well, in which Eircom wanted the recording industry to go after other ISPs as well, which has happened. In a trial testing the legitimacy of Eircom's three strikes laws, a judge ruled entirely the flip side of the UN report, claiming that kicking people off the internet was fine because it was actually copyright that was a human right, not internet access.

Of course, one of the problems with a three strikes provision is the fact that it's based purely on accusations, rather than convictions. And that's pretty ridiculous when the data used for the accusations is notoriously inaccurate. But, it gets even worse when an ISP like Eircom apparently sent hundreds of "first strike" notices to people who were entirely innocent, blaming it on a glitch (found via Torrentfreak). It's now leading to an investigation by the Irish Data Protection Commissioner. Eircom has tried to brush it off due to a technical error having to do with daylight savings time (seriously?!?), but it highlights the larger problems with these kinds of schemes. And those problems mean that the Data Protection Commissioner is looking at the entire three strikes plan to see if it's legit:

The significance of this case goes well beyond simple technical failings however, as the complaint to the Data Protection Commissioner has triggered a wider investigation of the legality of the entire three strikes system. According to the Sunday Times, "the DPC said it was investigating the complaint 'including whether the subject matter gives rise to any questions as to the proportionality of the graduated response system operated by Eircom and the music industry'."

This is unsurprising. When the Eircom / music industry three strikes settlement was being agreed, the Data Protection Commissioner identified significant data protection problems with it. These problems remain, notwithstanding the deeply flawed High Court judgement which permitted the parties to operate the system - a judgement which, for example, decided on the question of whether or not IP addresses are personal data without once considering the views of the Article 29 Working Party. The Data Protection Commissioner was not convinced by that judgement (it was problematic at least in part because the Commissioner was not represented - the only parties before the court had a vested interest in the system being implemented). However, until a concrete complaint arose no further action could be taken.

The complaint in this case has now triggered that action, and it seems likely that the Commissioner will reach a decision reflecting his previous views that using IP addresses to cut off customers' internet connections is disproportionate and does not constitute "fair use" of personal information. If so, the Commissioner has the power and indeed the duty to issue an enforcement notice which would prevent Eircom from using personal data for this purpose - an outcome which would derail the three strikes system unless Eircom successfully challenges that notice before the courts, or unless the music industry were to succeed in its campaign to secure legislation introducing three strikes into Irish law.

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Filed Under: innocent, ireland, three strikes

17 Comments

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The eejit (profile), 20 Jun 2011 @ 9:56am

So, false accusations of infringement get you nothing harmful, but false accusations of exposure get you jail-time?

Real sense of priorities you have there.
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jimbo, 20 Jun 2011 @ 10:40am

i think the phrase above, 'the graduated response system operated by EIRCOM AND THE MUSIC INDUSTRY' SAYS IT ALL! there is more likelyhood that the music industry will 'secure legislation introducing three strikes into Irish law' than an enforcement notice being implemented. lets face it, where will the greatest 'encouragement' come from? not the DPC, i'll wager! look at which way the court ruled! that particular judge is not going to be best pleased that his ruling is being questioned!
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- DannyB (profile), 20 Jun 2011 @ 10:51am
  
  Re:
  The DPC left this nugget in so that the court could save face.
  
  > the only parties before the court had a vested
  > interest in the system being implemented). However,
  > until a concrete complaint arose no further action
  > could be taken.
  
  If an adversary were before the court, the court could reverse itself and save face.
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Anonymous Coward, 20 Jun 2011 @ 11:20am

I eagerly await the apologists trying to weasel their way through this mess. They'll probably just insult Mike, but it should at least be entertaining.
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- Jay (profile), 20 Jun 2011 @ 11:27am
  
  Re:
  The sad part is, few take much interest in the articles most directly countering their arguments.
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  - Anonymous Coward, 20 Jun 2011 @ 12:37pm
    
    Re: Re:
    If they weren't on the internet in the first place they couldn't have been accused. Maybe these pirates should turn off their internet connection and go create something of their own.
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    - Spaceboy (profile), 20 Jun 2011 @ 12:58pm
      
      Re: Re: Re:
      Did you even read the article?
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      - The Groove Tiger (profile), 20 Jun 2011 @ 1:48pm
        
        Re: Re: Re: Re:
        They pirated internets because they used an internet that someone else had created. If they didn't want to be accused of pirating the internets, they should create their own internets.
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        iBelieve, 21 Jun 2011 @ 8:08am
        
        Re: Re: Re: Re: Re:
        So the internet belongs to the corporations who want to police what goes on with everybody's use of it and make payment for anything mandetory. You have to pay to blog. You have to pay to read news. You have to pay to watch a movie. You have to pay to download ~Anything. How is sharing something that you purchased theft? The first thing these corporations(lawyers) made clear was that people who enjoy the full spectrum of the internet and don't pay are "pirates". BULLSHIT to that I say. I just won't buy your shit and hope others follow suit. Go after the uploaders then. Downloading what is already up on the net, is not a crime in and of itself. Don't call me a pirate.
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      - Richard (profile), 20 Jun 2011 @ 2:19pm
        
        Re: Re: Re: Re:
        I don't think he was serious...
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        MrWilson, 20 Jun 2011 @ 3:22pm
        
        Re: Re: Re: Re: Re:
        The trolls have completely ruined my sarcasm detection ability because sometimes they say things that I would say in order to parody the absurdity of their positions.
        
        These days I just can't trust that what seems completely shortsighted and absurd isn't actually a serious comment.
        
        Maybe someone beat me to the strategy of posing as a copyright maximalist and making some of the most inane comments in order to make them look bad as a group.
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        The eejit (profile), 21 Jun 2011 @ 12:01am
        
        Re: Re: Re: Re: Re: Re:
        And such is the way of satire: Poe's law, taken to the extreme.
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        MrWilson, 22 Jun 2011 @ 6:18pm
        
        Re: Re: Re: Re: Re: Re: Re:
        I appreciate you mentioning this. A new (to me) meme with which to impress/disturb my friends and coworkers.
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thepi (profile), 20 Jun 2011 @ 4:44pm

Anonymous should start spoofing the ip's of prominent supports of 3 strikes laws, I imagine they'd rethink their position when they are being falsely accused.
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Michiel, 21 Jun 2011 @ 2:09am

The report condemning 3 strikes is NOT an UN report.
Re. the report condemning three strikes: The session of the UN HRC has closed without adopting a resolution on the document. It therefore is *still* not an UN report, if you want that to mean that it holds an official UN viewpoint.

The special rapporteur has presented the paper, but the council on Human Rights has not adopted the report nor has it made a recommendation. Also, the mandate of the special rapporteur was not prolonged. The issue is apparently closed.

It's perhaps better not to call this an UN report.

source: http://www2.ohchr.org/english/

(Comment posted elsewhere too, for easy reference)
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iBelieve, 21 Jun 2011 @ 7:27am

The internet was origionally a place to view or read or listen to anything that was uploaded to it. These corporations have attempted to turn it into a place that will utilize their get rich quicker schemes. I for one despise them for their brutal tactics, lawsuits and pushing this kind of CRAP on the same world that made them rich to begin with.
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iBelieve, 21 Jun 2011 @ 7:33am

Whoever posts or uploads any kind of data onto the internet(web) should bear the responsibility for what happens to that data. The surfer should not be held accountable for what gold is out there. Its like hitting the glory hole and someone telling them they had no right to be digging in the first place. Those are fighting words to me. I'll meet you in the courtyard.
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