The government is apparently considering legislation that could cause ISPs to block access to the Internet to customers that that download illegally. Reported in the Times' Internet users could be banned over illegal downloads article and in Illegal downloaders 'face UK ban' from the BBC, the "leaked" document suggests that a "three strike" rule would be in place, first a warning, second a suspension and finally termination. What isn't clear is who polices what is considered illegal or not and detects what customers are doing. Our traffic management systems can see the protocols that customers are using but it doesn't look at the content. We can see that a customer is downloading via BitTorrent but we don't currently know whether he or she is legally downloading the latest World of Warcraft patch or illegally downloading this week's episode of Lost. Presumably to implement this legislation each ISP will have to develop/purchase systems that can detect illegal downloads. We've mentioned these people before, Audible Magic, they have such a system that can detect copyright material within P2P downloads. There are a few limitations though, what does it do when it sees an encrypted BitTorrent stream for example? According to our data around 40% of BitTorrent traffic is now encrypted and that figure is growing. Also what does it do with other types of download such as HTTP, FTP or Usenet? All of these can also be encrypted. But if you have such a system in place that can detect illegal downloads, in realtime, what then is the purpose of the three strike system? Surely it makes more sense in this situation to just block the illegal download than to go to the trouble of banning people from the Internet? Why knowingly let someone download something illegally and then slap them with a ban? Of course detecting illegal downloads in realtime would require a definitive list of copyrighted material that's updated on a near real time basis. Who's going to be responsible for creating and maintaining that list? And does the ISP then become liable if copyright material is missed? If not surely any loophole will make such a law un-implementable? The BBC's iPlayer let's you watch shows from the last 7 days but what if someone watches a show that's available on iPlayer from another source? Is that an illegal download? Should they be banned from the Internet? How's a ban actually going to work? Does the ISP just cease the broadband on the line and do nothing else? Can that customer then just sign up with another ISP? Would the bans work on households, individuals, phone numbers, credit card numbers or something else? I can see all manner of troubles if a household or number is banned and a new person that moves in can't signup to an ISP. Another factor mentioned in the articles is who arbitrates over these decisions? Someone is accused of illegally downloading copyright material which they believe to be incorrect what do they do? Raise it with the ISP or an independent body? Who pays for the arbitration? What about cases where someone is watching clips on say YouTube from TV shows (many of which are there quite legitimately) but click on one that wasn't authorised by the copyright holder. Is that considered an illegal download? We spoke about The Pirate Bay being blocked in Denmark yesterday; is this the way the UK government want us to go? Problem is that something like BitTorrent is often likened to a hydra. Cut off one head (block one site) and another and another will take its place. How can something like that be taken into account? And what of the BitTorrent sites that offer legal downloads? Are the blocked too? Or only if they offer a mix of legal and illegal downloads? We and other ISPs want to work with the content providers, we can see that there has to be a better model. iTunes, Napster and others have proven there is a market out there, iPlayer usage shows that people will view TV online. There has to be a legal alternative to illegal downloads that will make people want to switch rather than spending what could be billions of pounds on a system for banning people from the Internet which on one hand is bound to miss a massive proportion of illegal downloads and on the other could end up with significant numbers of false positives. We are also happy to speak to the government about what is technically feasible, cost effective and takes the consumer interest into account too. Any legislation in this area is always going to be tough but the views of the media company executives aren't the only point of view and a fair and balanced outcome for all is what's needed here.