Broadband supplier says DPI detection can sniff out pirates in seconds, but campaigners say the program breaches privacy rules

For Alan Ellis, last week was a good one: he was acquitted of conspiracy to commit fraud. The prosecution had argued that the 26-year-old received at least £190,000 in donations to Oink, his filesharing website. Until Oink was shut down in 2007, it had, the crown claimed, helped 200,000 users illegally to download 21m copyrighted music tracks.

For the anti-piracy lobby, the verdict has been a serious setback, not least because it suggests the law hasn’t kept up with technology that allows the copying and transfer of copyrighted material. Ellis was the first person to be charged with conspiracy to commit fraud in relation to filesharing — though others have been convicted on lesser charges — and the crown was hoping for a conviction to send a strong message to filesharers.

Record labels and film studios claim the sharing of movies and songs by computer users costs them hundreds of millions of pounds. Now, though, new technology is coming to the aid of copyright holders. One of the UK’s largest broadband providers is trialling software it says can spot unauthorised downloaders. This could lead to their disconnection from the internet.

The BPI, the trade association of the British music industry, currently employs specialist firms to eavesdrop on people who make copyrighted material available to download. The firms record their IP address, a code that can then be used to identify the alleged filesharer’s internet account.

This process is costly and time-consuming. The BPI must first go to court and present evidence of wrongdoing by an individual to force a broadband provider to hand over the details of that person’s activities on the internet. The threshold of evidence is high, making it impractical for the BPI to pursue more than a handful of cases.

Now, however, Virgin Media is trying out new technology that can automatically detect if a customer’s broadband connection is being used to download copyrighted files illegally. Virgin, which has more than 4m UK broadband customers, offers the fastest connection speeds in Britain and is consequently a popular ISP for filesharers. Hit films such as Pirates of the Caribbean can be downloaded by Virgin users in minutes.

Called deep packet inspection (DPI), the detection technology categorises all internet traffic that passes over a customer’s connection — be that email, general web surfing or online gaming. Traffic identified as filesharing is subjected to a deeper scan and is said to be checked against a database of music and, potentially, films. Detica, the firm that runs the system for Virgin Media, claims it can tell within seconds whether the specific data being downloaded are, say, family photos or the latest Lady Gaga album.

Virgin and Detica insist that DPI is — for now — being used only to measure the level of illegal filesharing, not to snoop on customers. Indeed, they say the key piece of information — the IP address — is ignored in the process. This, of course, doesn’t mean the technology could not target individuals.

When asked whether the new software was able to identify filesharers, a Virgin Media spokesman said: “It could be, but the technology hasn’t been designed for that purpose. The IP information is discarded. It allows us to understand the exact nature of unlawful traffic on our network.”

Virgin’s plans have angered privacy advocates, who claim it is only a matter of time before the company is routinely fingering its own customers. “I think it is inevitable that Virgin will eventually use DPI to identify individual illegal filesharers on its network and, at the end of the day, it probably won’t be Virgin’s decision to make,” said Alexander Hanff of Privacy International, a lobbying group.

He believes the technology will work alongside government proposals to disconnect filesharers who ignore two written warnings to stop. “Peter Mandelson has made it very clear he wants ‘three strikes’ to come into effect, and the only feasible way to do this is for the ISPs [internet service providers] to police their networks using DPI.”

A spokesman for Lord Mandelson’s Department for Business, Innovation and Skills denied the government had discussed using DPI to identify illegal filesharers, but left the door open for it to be used in future: “If warning letters backed by legal action do not prove as effective as we expect, then an additional obligation to introduce appropriate technical measures is worth considering,” he said.

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