Switzerland has warned a company that tracks file sharers for copyright violations
that its tactics violate the country's telecommunication law.
Logistep,
which supplies information on suspected file sharers to law firms around the
world for use in copyright violation cases, has until Feb. 9 to respond to the
Federal Data Protection and Information Commissioner (FDPIC), said Marc Schaefer,
the agency's legal advisor.
Under Swiss law, the identity of a subscriber to an ISP (Internet service provider)
can only be revealed during the course of a criminal case, not a civil one,
Schaefer said. The IP (Internet Protocol) address of a computer controlled by
the subscriber is considered "personal" information.
In order to try to claim damages from people suspected of trading songs or
movies, Logistep has asked Swiss prosecutors to open criminal cases, Schaefer
said. As the criminal cases progresses, Logistep receives information from prosecutors
that identifies the file sharer.
Logistep then initiates a civil case against the file sharer while the criminal
case is ongoing. Prosecutors usually drop the criminal case against the person,
Schaefer said.
By starting a criminal case "to obtain the identity behind an IP address
... they just found a way to avoid the telecommunication law," Schaefer
said. "Therefore, we told Logistep to stop their work until there is a
legal basis which allows such an identification."
The FDPIC's recommended to Logistep to stop the practice, but is prepared to
take the matter to court, Schaefer said. Logistep would be in the clear if they
pursued a civil case after the criminal one is complete, he said.
Logistep has issued a statement contending an IP address is not personal information.
Company officials could not be reached Friday.
An IP address can indicate the location of a computer but not necessarily who
is using it. Several people could share the same computer, which would have
one IP address. But ISPs, as well as wireless routers used in home, can also
dynamically assign IP addresses, which adds further ambiguity regarding who
is using the computer and who may be responsible for illegally activity conducted
on the PC.
That means the person paying the bill for the Internet service may end up as
the target of the civil proceeding rather than the offender, adding another
worrying factor into the lawsuits, Schaefer said.
On its Web site, Logistep said it can compile a history of illegal files shared
by someone, even if encryption or proxy servers are used to mask the sharing.
The row comes amid growing concerns over how personal data is collected and
retained in Europe.
On Monday, a top European data protection official, Peter Schaar, said at a
European Parliament hearing that an IP address should be considered personal
information since it can be used to identify people.
Schaar is chairman of the Article
29 Data Protection Working Party, which is looking at personal data and
privacy issues, such as what kind of data search engines retain. A report is
scheduled for release by April.
Also earlier this week, privacy activists claimed victory over music and content
industry lobbyists concerning a report issued by the European Parliament's Committee
on Culture and Education.
Struck out of the report was a suggestion that ISPs should monitor content
and ban users for suspected copyright infringement,
wrote Danny O'Brien, international outreach coordinator for the Electronic
Frontier Foundation, which lobbied against the suggestion as well as others.
The report, entitled Cultural Industries in Europe, will be used to make recommendations
to European Union countries on intellectual property and other issues.
