The Guardian published a story earlier this by Bobbie Johnson on the idea of ‘bulletproof hosting’: – Internet pirates find ‘bulletproof’ havens for illegal file sharing. It’s an interesting article raising a good few questions, although it includes this very tricky paragraph:
The change is rooted in the evolution of “bulletproof hosting”, or website provision by companies that make a virtue of being impervious to legal threats and blocks. Not all bulletproof services are linked to illegal activities, but they are popular among criminal groups, spammers and file-sharing services.
Oh, that old formulation – ‘not all X are bad, but they are popular with bad people’. The dihydrogen monoxide tradition of guilt by association. It wasn’t that long ago that the Guardian itself was very critical of legal threats and blocks in its own showdown regarding Trafigura, and of course the various protesters in Iran that were lionised for getting the message out to the world. Still, obviously a different sort of thing. Legal threats and blocks about speech are bad; about copyright are good.
Anyway, the ‘bulletproof’ idea isn’t entirely new. I’ve certainly come across many companies that make a virtue of their legal status, particularly in the US. There are plenty of bulletin boards and politically-oriented services in the UK and Ireland that use US hosts – it’s not a strategy for complete immunity by any means (especially if the key bodies are physically over here), but it does cut out the more speculative sort of (non-IP) takedown notice and empty threat. There’s something of the Sealand about all of this too (the microstate not far from where I sit that was home to Havenco, and here’s where I think the article is on stronger ground. As I have said from a number of platforms, most recently in a media law class in December, the best analysis of the theoretical attraction and practical downside of Sealand is to be found in Jack Goldsmith & Tim Wu’s Who Controls The Internet?, where they point to the need of many services to use non-Sealand intermediaries in order to do practical business, and even Sealand’s own reservations about the service. Worth reading. Perhaps now that the salt mines across the UK are empty, some servers could go in there.
That said, the point that does come across from the article (and the parade of host-hunting lawyers quoted in it) is that business is still booming, at least for some areas of content (filesharing of movies etc) and some jurisdictions (Russia and China get a few mentions). The combination of less need for certain types of intermediary, and the established but not on-message status of the jurisdiction in which the service is found, does bring the story forward somewhat. It’s certainly a part of the wider move to looking at the destination ISP as the possible place of control (three strikes, etc), and I’m sure it will play an increasingly important role in trade negotiation. However, the US remains in a difficult position here as its speech laws are so different – think back, for example, to the fuss when the Tiger Woods injunction was issued in the UK, and the various statements that it couldn’t happen in the US. There’s also the point quoted in the article in the context of Ukraine that its law is said to say that ‘providers are not responsible for what their customers do’. This principle (in various ways) is reflected even in EU law, albeit with caveats attached, and is quite vigorously defended by ISPs. So it’s not necessarily the big bad monster that it’s made to be – it’s a complicated issue and still a contested one, as we saw with Bono’s bizarre attempt to recommend that Chinese political censorship tools could be used for the protection of IP. Now that was a way to start the new year in Internet law – not sure if it was parody or not, but it did leave me (unusually) speechless.