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Monday, 4 October 2010

ACS:Law part two - mob justice

[part one] [part three]

Secretly happy when an unfortunate something happens to someone bad? If so, I'm glad it's not just me!

I don't like ACS:Law's business model - I think demanding £500 per infringement from ISP account holders to avoid court action for alleged copyright violations on their internet connection is immoral.

Immoral because it appears designed to scare those who may not have a deep understanding of the legal situation into paying.  In many circumstances the account holder has a legal defence (Smith v Littlewoods) for what others do using their ISP connection - at least until the full provisions of the Digital Economy Act come into force.

Not only did the leak of ACS:Law's emails highlight their clear ineptitude in protecting sensitive personal information, it also showed the firm's principle Andrew Crossley was made aware of this potential defence in an email from his own legal advisor.

There are other reasons I question the actions of ACS:Law.  Electronic surveillance by private companies is in my mind disproportionate to the alleged wrongdoing (a minor civil tort). I also believe hunting those who share music and video online is not in anyone's long term interests.

But I came in for some stick in the comments section for my article on the Guardian this weekend for daring to question the actions of cyber-vigilantes (4chan, anonymous) in bringing websites associated with rights protection organisations to their knees.

It's not the DDoS attacks which crippled ACS's systems but the re-hosting of the leaked sensitive personal data in easily accessible format - e.g. searchable by postcode to see what adult movies, if any, your neighbours may have been watching - I find particularly worrying. 

The actions of individuals - eRobin Hoods(?!) - is exacerbating the anguish of those affected, especially given that many who appear on the list will have had nothing to do with the alleged infringement listed.

Does the action of the cyber-vigilantes in republishing the personal data justify the ends?  One commentor drew parallels between the cyber-mob and other non-violent protest. But I reject this argument because the protest though non-violent is affecting ordinary innocent bystanders, who I feel have a right to privacy.

I don't believe the civil and democratic processes have been fully exhausted, as the same commentor clearly insinuated when he went on to say "in the absence of democracy, what exactly do people have left."  ACS:Law was under investigation by the Solicitors Regulation Authority prior to the attacks, and had come under intense pressure from Which? for its tactics.  It's somewhat ironic that the leak showed how pressure from Which? and others was straining ACS:Law's relationships with its clients.

Accepting mob justice sets a dangerous precedent and furthermore threatens to alienate those campaigning for proportionality in dealing with the modern culture of file sharing and calling for better regulation of the growing private army of "data police" I'm going to consider in the final part of this series.

It also gives some ammunition to ACS:Law, who last week argued that their data protection lapse was a result of criminal actions.  On this occasion the Information Commissioner Christopher Graham  (from 1.27 in on this video) said "this kind of excuse [coming under criminal attack] doesn't wash" and went on to say that "controversial" companies in particular should expect to come under attack and must have in place adequate data protection measures.

Whatever the flaws in our legal system and parliamentary democracy, accepting mob justice is a far worse option.  The picture at the top of this article was taken in Uganda in 2004.  It's not actually a mob attack but part of a village ritual, but mob attacks are commonplace and instant justice can sometimes be meted out to innocent parties who are unlucky enough to be in the wrong place at the wrong time.

This was highlighted when a friend hit a young cyclist whilst driving in Uganda. The accident was unavoidable as the cyclist shot out into a busy road.  A mob formed as the cyclist lay injured and a local policeman wanted a bribe from the driver in order to arrest him and take him away from the mob, which was growing in anger.  Luckily the child was not fatally injured and a compromise was reached with the mob whereby my friend drove the cyclist to hospital and paid for subsequent treatment.

The mob in the heat of the moment believe in their actions.  But with hindsight a different story may emerge, which is a key benefit of the legal system, where facts are examined away from the heat of the situation.

Democratic systems also allow opposing views to be reconciled.  I believe ACS:Law's methods were wrong, both disproportionate to the alleged offence and immoral to capitalise on the fear or naivety of the ISP account holder.

Yet clearly not everyone shares my view. Many in the music and film industry believe they have the moral right to protect their business interests against those who take copyrighted works without payment.

The ancient law of copyright has been under close scrutiny ever since the arrival of photocopiers and home tape machines, in particular video cassettes.  The advent of the internet has pushed the system to breaking point.  Clearly there are those with strong views on both sides of the debate.

But many other groups hold strong moral views, just one example being pro-life campaigners.  Would it be appropriate for pro-life groups to wage a cyber-war against websites set up to offer help and advice to young people on contraception and abortion?

Our democracy and legal system is far from perfect, but the alternative is far worse.  We can't let anarchy prevail online, allowing the strongest groups - those equipped with the skills to inflict damage on the IT systems of others - prevail.

[part one] [part three]



  1. If anything I think that the SRA investigation shows that democracy *isn't* working properly. This sort of campaign has been going on since 2008; the SRA finally got involved earlier this year (still not part of democracy, though). So far no action has been taken and this afternoon another law firm will be going before a judge to sue even more identities out of an ISP (which could be an interesting case).

    When exactly are democracy and justice going to sweep in and save the day?

    Having said that, while the initial leak may have been helpful, the subsequent "searchable databases" does seem unnecessarily invasive and disturbing.

  2. Hi Will,

    The SRA did get involved in 2008. I'm not sure whether a formal process was launched but either way a combination of Which? and SRA made Davenport Lyons think twice about this tactic.

    Anyone else with more information about the formal process with SRA and Davenport Lyons please comment or email me enquiries -at- daltonfirth.co.uk thx


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