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Hot on the tail of the issues discussed in yesterday's column, I now see that if a proposed amendment to the Films Video and Publications Act is passed as-is, all the country's ISPs are going to be exposed to severe penalties if someone accesses illegal material through them.

This story by Stephen Bell over at IDG sums things up nicely and warns that, as innocent net users, we could be the ones who suffer as a result of a poorly drafted law that seems to ignore the impracticalities of checking every bit and byte that passes through an ISP's data-links.

Clearly this government (as did other governments before it) is having trouble getting their tiny minds around the Net and other new technologies. What's worse, they clearly seem to be incapable of hiring *knowledgeable* consultants or advisors to help them out when drafting legislation.

It would be unfair to expect every MP to be a techno-whiz but surely they're smart enough to hire experts when necessary and to acknowledge that a 1990's mindset won't work in the 21st century when it comes to taking advice on such matters.

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But what would the implications be for an ISP if this amendment is passed in its current form?

Well, although I'm no lawyer, it's pretty obvious that according to the letter of the law, they would indeed be guilty of a crime every time a customer downloaded anything that was in breach of the FV&P Act.

Unless they were 100 percent effective in blocking access to websites carrying such material then they could face prosecution for "providing access to" that material.

But worse, it would appear that they'd still be liable if offending material was encrypted and sent by email through their systems.

Now how on earth is any ISP going to know what the contents of an encrypted attachment are? How on earth can we possibly accept a law that makes an ISP liable for carrying material that they can't possibly identify and therefore filter?

Or (puts conspiracy hat on) will the next step be to introduce a new law that requires all net users to register any and all cryptography keys they may be using with their ISP -- so that illegal material can be identified and deleted if/when necessary?

Demanding that such a draconian invasion of privacy be introduced under (say) an anti-terrorism banner probably wouldn't fly -- but if you raise the "protecting our kids from pornography" banner as well then you're bound to get plenty of public support, right?

(takes conspiracy hat off). Whatever the case -- the proposed amendments as drafted would require ISPs to constantly run the risk of facing prosecution or force them to introduce a massive degree of monitoring, filtering and reporting so as to stay on the right side of this law.

Now you'd think, bearing this in mind, that the government would have already said "oops, we've made a mistake here, let's fix that" -- but according to the IDG article, they've chosen to ignore a select committee recommendation that ISPs' liability be limited.

For once, I'm on Telecom's side!

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