I’ve just finished reading the fascinating case of AMP v Persons Unknown  EWHC 3454 (TCC) via the IP Osgoode blog. This is a BitTorrent case with a twist, as it is NOT a copyright case. Perhaps we have grown accustomed to BitTorrent technology, it is used to share legal and infringing content alike, and to try to stop it proves futile in most occasions. With copyright infringement, the victims are faceless corporations, so large sections of the public never give it a second thought. You go to a tracker site or search engine, enter the name of the TV show or movie that you want, and voilà, you have hundreds of options. But what would happen if what is being shared is not a copyright infringing item (in the strict sense, it is, but let’s ignore that aspect for now), and it became clear that justice could only be served by removing a specific torrent from the Internet. Would it be possible to do so by legal means?
In June 2008 a female university student in the UK lost or had her mobile phone stolen from a Nottingham tram. Her identity, for reasons that will become clear, has been kept hidden. The phone contained images “of an explicit sexual nature which were taken for the personal use of her boyfriend at the time” [insert warning to the youth of today about the dangers of sexting]. What follows is almost a caricature of things going terribly wrong, it’s so bad that it could be used as an exam question for an IT Law class.
Shortly after the theft, the images were copied from the phone and uploaded to a picture-sharing site with her name and a link to her Facebook page attached. Someone warned her of this fact, and an email was sent to the hosting website, which promptly removed the images. However, once in digital format the content will eventually replicate, the images were bundled into a torrent file and uploaded to The Pirate Bay under the title “Sexy Rich Chick Mobile Phone Found By IRC Nerdz”. At the same time a person named Nils Henrik-Derimot contacted her on Facebook and threatened to have her exposed unless she friended him. Similarly, her parent’s company was contacted with blackmail threats. The Internet once more showing us how classy it can be. Needless to say, the torrent file spread around the various tracker sites.
It is perhaps now obvious that the claimant is wealthy, so her parents contacted a law firm to try and have the images removed from the Web. They first filed a DMCA takedown notice to Google to have the search engine remove links to the torrent files from searches on copyright grounds (this is not part of the English case). They then filed for an injunction in the High Court of England and Wales “to prevent transmission, storage and indexing” of the pictures based on the claimant’s right to privacy under Art 8 of the European Convention on Human Rights, and under Section 3 of the Protection from Harassment Act 1997. I will not go into much detail with regards to the application of substantive law in this case. I should just mention that this part of the ruling is very well thought-of, and continues to set a high standard of privacy protection in online environments. There is nothing truly controversial here, and Ramsey J delivers a thoughtful and well considered ruling in that regard. In short, privacy law does not affect freedom of expression in cases like this, and the possible damage done to the claimant’s enjoyment of a private life outweigh other considerations, and therefore should preclude the publication of the images through any media.
What I found really interesting about the case is that for the first time a court is asked to serve an injunction against the publication of a specific torrent file. In order to ascertain if this was possible, Ramsey J needed to know about BitTorrent technology, so he asked the opinion of Prof. Andrew Murray, who has written about the case here. Based on this testimony, the court defines BitTorrent like this:
“10. BitTorrent is a peer to peer file sharing protocol used for distributing large amounts of data over the internet. The BitTorrent protocol is used to download files quickly by reducing the server and network impact of distributing large files. Rather than downloading a file from a single source server, as is the case with the conventional HyperText Transfer Protocol (HTTP), the BitTorrent protocol allows users to join a “swarm” of users to download and upload from each other simultaneously.
11. The person who wants to upload a file using the BitTorrent protocol creates a descriptor file known as a “.torrent” file which contains a description of the file. In this case that descriptor file contained the Claimant’s name. This “.torrent” file is distributed by conventional means using webpages, emails or mobile phones. The file being distributed is divided into segments called pieces.
12. The person downloading files must first download BitTorrent client software. That person can then download a file with a “.torrent” file descriptor. That “.torrent” file is then downloaded by acting as a “leecher” but when a piece of a file is downloaded that user then becomes, in turn, an uploader or “seeder” of that piece of the file. In this way the distribution of files depends not just on the original source of the file, as in conventional protocols, but using BitTorrent client software each user who downloads the file becomes, in turn, a seeder facilitating the distribution of a particular file by allowing pieces of that file to be uploaded by other users downloading the file.”
So far so good, this is an accurate and useful definition of BitTorrent; it is always useful to have a court define and understand the underlying technology (although I still prefer the very colourful definition of BitTorrent technology from the Austrealian iiNet case). However, things start going a bit wrong when the court asks Prof. Murray to try to determine if it is possible to stop a torrent file from being shared. The ruling cites Prof. Murray’s opinion that such a thing is possible. It says:
“13. Conventionally, to prevent users from being able to download files, it would be possible to identify the relevant source used to provide the download and seek to prevent downloads from that site.
14. However, to prevent the transmission, storage and indexing of the relevant “.torrent” files it is necessary to identify the users who have downloaded the files using the BitTorrent protocol. The relevant files can then be deleted by these users and, in addition, these users can be prevented from acting as seeders of parts of the file which will prevent them distributing the images which are the subject of the current claim.
15. Professor Murray says that each seeder can be identified by way of their Internet Protocol Address (‘IP Address’) while they are seeding. He says that it would therefore be possible to obtain the IP Address of every seeder in the swarm and identify from that address their physical location, name and address from their Internet Service Provider. He says that, as a result of that action, it would be possible to identify the IP address of each computer seeding a particular “.torrent” file and details of the person allowing the seeding to take place. They could therefore be served with an order requiring them to take steps to stop their account from being used.”
I greatly admire Prof. Murray’s work, but I cannot help but disagree with this assessment in the strongest possible terms. Sure, it is perfectly possible to obtain IP addresses of those sharing a specific file at any given time, but this soon becomes a game of whack-a-mole (or guacamole, as my nephews call it) because nothing prevents others from creating other torrent files and sharing them online. Similarly, IP address identification is not an exact science, and anonnymisation through the use of VPNs and other tools is perfectly possible. Moreover, and this cannot be stressed enough times, an IP address never identifies a person, it may identify a household, but there is no way of knowing if that address is being used in a public place, or by a person who has their wifi open, etc. In other words, a court cannot possibly expect to be able to serve an injunction to those actually seeding the file. It might identify some, but it is equally likely that it will have false positives and send the injunction to the wrong people. The ruling continues:
“Professor Murray considers that, given the characteristics of the Claimant, it is unlikely that many of the seeders will be outside the jurisdiction of this Court. He says that, in those circumstances, it is likely that if a large number of the seeders can be found the distribution of the “.torrent” file by the BitTorrent protocol would cease to occur because of the want of seeders.”
This is completely wrong, I cannot imagine what may have prompted Prof. Murray to say this. Perhaps a dose of reality is needed here. Anonymous persons upload torrent file of attractive young girl in sexually explicit poses… free porn in other words. How is this content going to remain within the UK borders? As an example, a simple Google search led me to the torrent file in question in The Pirate Bay (yes, it’s still there), and the IP logs of the seeders produced addresses in Canada, the United States and Sweden, one of which was a VPN service provider (I need not mention the fact that for a very short time, any logs would have shown an address in Costa Rica). The ruling continues:
“17. He says it is also possible to prevent internet search engines from indexing particular sites or files which contain specific words; in this case the descriptor file containing the Claimant’s name could be filtered out on that basis. He says that this would then prevent wide-scale access to the “.torrent” file and again because of a lack of seeders the distribution by the BitTorrent protocol would cease to occur.
18. Finally he says that although the “.torrent” descriptor files are likely to be hosted outside the jurisdiction it is a relatively trivial matter for an internet service provider to block access to a site outside the jurisdiction using currently available technology.”
Again, the fact that I was able to easily find the files in question proves that the above solutions simply do not work. Similarly, filtering is useless in this context, do I really need to explain why? Remember that the Internet interprets censorship as damage and works around it.
Another really interesting part of the ruling is that it is a blanket injunction against any future seeders of the file. Ramsey J explains:
“19. The claim in this case has been brought against “Persons Unknown”. The reason for that is that until seeders of the relevant digital photographic image files have been identified by way of their IP Addresses whilst they are seeding and their addresses have been obtained from their Internet Service Provider, they cannot be made a party to these proceedings. It is submitted on behalf of the Claimant that the number of potential Defendants and the need to move rapidly to prevent increasing numbers of seeders militates against identifying individual defendants at the present time.
20. The Claimant submits that a procedure which required further applications to add additional Defendants when they are identified, would be cumbersome and lead to unnecessary costs and time being spent which would be contrary to the overriding objective under the CPR. Instead, it is submitted that, by identifying the class of persons unknown by reference to their particular characteristic, namely any person in possession or control of any part or parts of the relevant files containing the relevant digital photographic images, would be a sufficient description of the Defendants to enable them to be served with any order which the court might make. If, at any stage, it became necessary to proceed further against any particular Defendant for failing to comply with any interim order, the Claimant submits that the particular Defendant could then be specifically identified.”
This is incredibly interesting from a procedural standpoint. Because it would not be feasible to pursue unknown defendants individually in the future, the court has issued a blanket injunction against anyone who is eventually found to be seeding the file. This is an extraordinarily broad type of protection, but eventually futile. At the time of writing, the pictures are still available online. Not only that, those sharing it know that they have tried to have this removed, and mock such actions. One of the commenters says:
“She has tried to have this removed […] I guess for all her money, she doesnt yet understand how the Internet works. This will now no doubt be seeded by loads more people… “
This is precisely the point of this case, the Streisand Effect is very real. Because of that, this is an extraordinary ruling (albeit rather mistaken). I am completely on the side of the claimant here, she has had an intrusion into her private life that we cannot comprehend. I have no sympathy to anyone sharing this file, and cannot possibly condone the actions of those who turned it into a torrent and uploaded it. This is not freedom of speech, freedom of the Internet, or whatever other type of freedom. That old phrase that says that my freedoms end where those of other begin is precisely at stake here. Having said that, it pains me to say that the claimant cannot possibly expect to have these pictures removed from the Internet once they have been shared in this manner. No injunction will make these images go away. We can only hope that this will serve as a cautionary tale for young people about what they keep in their mobile devices.
Breach of privacy is only one click away.
A brief note about ethics
While the ruling does not identify the claimant, any Google search of the case produces her name and the link to the offending torrent. I have decided not to make it public, not for fear of being in contempt of the court, but because I do not want to add to her plight. I am perfectly aware that by publicising the case I am also in danger of making the matters worse, but this is a landmark case that deserves to be widely known and analysed, and I cannot see how this can be done without potentially drawing attention to the offending pictures. I can only hope that people will exercise caution and let their own personal ethics guide them in this matter.