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ISP (Eircom) Wrongfully Sent 300 "First Strike" Letters To Innocents subscribers

Falconire

From torrentfreak.com

According to a report which has flown almost completely under the radar, last year an ISP sent out around 300 “first strike” warning letters wrongfully accusing innocent subscribers of Internet piracy. ISP Eircom implemented the scheme in partnership with the recording industry and is now being investigated by the Irish Data Protection Commissioner.

In February 2009, IRMA – representing EMI, Sony, Universal and Warner – reached an 11th hour out-of-court settlement with Irish ISP Eircom on the issue of illicit file-sharing. The deal would see Eircom introduce a graduated response system for dealing with errant subscribers.

“Eircom is proceeding with implementation of the protocol which could result in the suspension and ultimately disconnection of broadband service for those customers who deliberately and persistently infringe copyright,” the company said in a December 2010 statement, reiterating their commitment to the scheme.

But little did we know that the fears of “3 strikes” opponents had already come true.

From deep inside the “how the hell did the majority of the media miss this department”, it now becomes clear that by October 2010, Eircom had already sent out around 300 warning letters to completely innocent subscribers.

The company seems to have tried to play down the error saying that computer clocks were incorrectly adjusted to compensate for daylight saving time, some comfort to the unlucky letter recipients.

According to TJ McIntyre at digital rights site EDRI.org, as a result of this failure the Irish Data Protection Commissioner is now investigating the entire Eircom scheme.

“The significance of this case goes well beyond simple technical failings however, as the complaint to the Data Protection Commissioner (DPC) has triggered a wider investigation of the legality of the entire three strikes system,” he writes.

The DPC is said to be not only investigating the complaint but also “whether the subject matter gives rise to any questions as to the proportionality of the graduated response system operated by Eircom and the music industry.”

McIntyre says that when the Eircom/IRMA deal was being agreed, the DPC expressed concerns with it, not least over the question of whether or not IP addresses are personal data. However, until someone raised a complaint, that issue was put on the back burner. The delivery of 300 false “first strike” warning letters appears to have met that criteria.

“The complaint in this case has now triggered that action, and it seems likely that the Commissioner will reach a decision reflecting his previous views that using IP addresses to cut off customers’ internet connections is disproportionate and does not constitute ‘fair use’ of personal information,” McIntyre explains.

“If so, the Commissioner has the power and indeed the duty to issue an enforcement notice which would prevent Eircom from using personal data for this purpose – an outcome which would derail the three strikes system unless Eircom successfully challenges that notice before the courts, or unless the music industry were to succeed in its campaign to secure legislation introducing three strikes into Irish law.”

The way this story has flown largely under the mainstream tech news radar will have been a relief to Eircom and IRMA. Something tells us that is about to change.

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oceanclub

It baffles me that anyone would want to be a customer of a company when it could end up with you being wrongfully sued.

P.

dub45

oceanclub wrote: »

It baffles me that anyone would want to be a customer of a company when it could end up with you being wrongfully sued.

P.

It baffles me that people won't inform themselves properly of what exactly the procedure at issue is. There is no question of anyone being sued either wrongfully or otherwise.

Groinshot

CptSternn wrote: »

Lets also not forget when you sign up for services, you enter into a contract - a legal contract. Eircom does not have the right to break that contract, or send you warnings claiming you are involved in criminal activity and warning you they are going to break the legal contract.

Do the TOS that you sign up for with eircom not include a policy of some description that you're not to use their networks for illegal activities? (I haven't looked, but it would be absurd if they didn't).

CptSternn

Groinshot wrote: »

Do the TOS that you sign up for with eircom not include a policy of some description that you're not to use their networks for illegal activities? (I haven't looked, but it would be absurd if they didn't).

All TOS and contract in general have some sort of clause regarding illegality. The issue then becomes the burden of proof. Eircom is willing to allow a third party outside of Ireland make the call. The problem is, can Eircom prove that the claims are true beyond a reasonable doubt if they get taken to court?

The only way they can do this is if they are logging all the ports everyone is connecting from, check to see who is using bit torrent, checking which websites people visit, and of course reading other communications between their customers. If they are not doing this, then the whole case is being based on a third parties accusations and there is NO PROOF being supplied from the ISP Eircom where customers are getting their services from, yet Eircom is willing to shut down a customer without even having proof on their end that the customer in question has in any way violated the law.

Sure they can cut off your service if you break the law, but to do that they have to monitor it themselves. Right now a third party is doing that and they are sending out threats.

One of two things has to be true -

1. Eircom is logging everything you do and everyone you communicate with via broadband.

2. Eircom isn't keeping extensive logs on everyone and everything.

If they are, then they are monitoring you. If they are not, then they are blindly taking the word of a third party with no evidence.

They claim they aren't monitoring anyone, yet, if they are keeping large detailed logs of your broadband connections I don't see how they can claim they are not monitoring everyone.

dub45

Groinshot wrote: »

Do the TOS that you sign up for with eircom not include a policy of some description that you're not to use their networks for illegal activities? (I haven't looked, but it would be absurd if they didn't).

All isps afaik have such clauses. In fact UPC have a seperate document on usage policy.

kirving

dub45 wrote: »

Why?

Because eircom have to abide by this, or be taken to court again. It's not a level playing feild, particularly when there is a widespead belief(in my experience anyway) from people that their actions are being monitored.

dub45

CptSternn wrote: »

All TOS and contract in general have some sort of clause regarding illegality. The issue then becomes the burden of proof. Eircom is willing to allow a third party outside of Ireland make the call. The problem is, can Eircom prove that the claims are true beyond a reasonable doubt if they get taken to court?

It really is time that you dropped the hysteria and stopped making wild claims. Exactly what 'call' is being made?

Who is going to take Eircom to court and on what grounds?

CptSternn wrote: »

The only way they can do this is if they are logging all the ports everyone is connecting from, check to see who is using bit torrent, checking which websites people visit, and of course reading other communications between their customers. If they are not doing this, then the whole case is being based on a third parties accusations and there is NO PROOF being supplied from the ISP Eircom where customers are getting their services from, yet Eircom is willing to shut down a customer without even having proof on their end that the customer in question has in any way violated the law.

This is way over the top stuff. You are making claims here about Eircom's behaviour without any proof whatsoever. Such hysteria does not advance the disucssion one iota. In fact quite the reverse as you are confusing the issue with every post that you make.

CptSternn wrote: »

Sure they can cut off your service if you break the law, but to do that they have to monitor it themselves. Right now a third party is doing that and they are sending out threats.

One of two things has to be true -

1. Eircom is logging everything you do and everyone you communicate with via broadband.

2. Eircom isn't keeping extensive logs on everyone and everything.

If they are, then they are monitoring you. If they are not, then they are blindly taking the word of a third party with no evidence.

They claim they aren't monitoring anyone, yet, if they are keeping large detailed logs of your broadband connections I don't see how they can claim they are not monitoring everyone.

You do not appear at any stage to have made any effort to read what exactly is happening with the system and you continue to make wild claims which as I have said earlier do not in any way add to the discussion.

For anyone who wishes to inform themselves of the system this is what Eircom have to say about it:

http://www.eircom.net/notification/legalmusic/faqs

And in relation to the claims made above:

Will eircom be monitoring network traffic?

No. There will be no intervention to the network by eircom and eircom will not use any software to monitor specific activity of users on the network.

The music industry will monitor illegal downloads in the same way it already does. It will then pass that information (in the form of IP addresses) to eircom. Their process for data collection has been reviewed and approved by the Office of Data Protection Commission (ODPC).
Does eircom monitor what I am doing online?

No. There are strict privacy laws that prohibit eircom from monitoring the online activities of individual customers.

dub45

Kevin Irving wrote: »

Because eircom have to abide by this, or be taken to court again. It's not a level playing feild, particularly when there is a widespead belief(in my experience anyway) from people that their actions are being monitored.

It has absolutely nothing got to do with the competition authority. Eircom made the decision under legal threat from IRMA. UPC stood up to IRMA and refused to comply. It was Eircom's own decision probably taken on the basis that sooner or later they were going to be forced into it anyway and they did not have the money for a long legal battle.

http://www.irishtimes.com/newspaper/finance/2011/0621/1224299311376.html

kirving

Fair enough, they folded under legal pressure so it's their own fault. I still don't believe it's fair since they couldn't afford to fight it though.

It's similar to what is happening in the US, movie companies sueing people for a few grand. A high price to pay for downloading a film, but low enough just take it on the chin without risking going to court.

I'm with UPC btw.

CptSternn

@dub45

Ok then explain this -

You want to back their claims they are not monitoring anyone. Then how exactly can they send out letters claiming a customer is involved in illegal activity if there is no monitoring going on?

It doesn't matter how creative you try and get with the wording, the simple fact is you are being monitored and Eircom is helping in this process, else there would be no letters.

It reminds me of the whole discussion we had on this very board months ago when I posted Eircom as well as other ISP's have limits even though they claim the packages are 'unlimited'. People argued that was TOS and not the package so it' not false advertising. The reality is, there is a limit.

Just like in this case, they are monitoring. It as I said above may not be directly, but they are monitoring people. Just because they have gotten creative with it doesn't mean it is not the same exact thing.

As another example -

Example A -

Users are found to be downloading something - Eircom checks the logs - A letter is sent

Example B -

Users are found to be downloading something via a third party acting on behalf of Eircom - Eircom checks the logs - A letter is sent

I don't see any difference, the process is the same and the outcome is the same. It just appears they are playing with semantics. You get from A to Z directly down the same route.

dub45

CptSternn wrote: »

@dub45

Ok then explain this -

You want to back their claims they are not monitoring anyone. Then how exactly can they send out letters claiming a customer is involved in illegal activity if there is no monitoring going on?

First of all I am not backing their claims. I am pointing you towards their site where they give an explanation of how the system works.

Secondly there are none so blind as those who will not see or who dont want to see.:rolleyes:

CptSternn wrote: »

It doesn't matter how creative you try and get with the wording, the simple fact is you are being monitored and Eircom is helping in this process, else there would be no letters.

It reminds me of the whole discussion we had on this very board months ago when I posted Eircom as well as other ISP's have limits even though they claim the packages are 'unlimited'. People argued that was TOS and not the package so it' not false advertising. The reality is, there is a limit.

As one who was as consistent as anybody on boards.ie of highlighting and criticising the "unlimited" deception I would be the first to say that this has nothing got to do with that at all.

And there is noone being creative in this situation unless it is your goodself.

You are fond of examples so lets take this one:

If you go into a shop and steal something and are caught on camera - then the shop owner is in a postion to make a complaint to the gardai and they can they act on it if they choose. It would be plain stupid surely to argue that the gardai are monitoring you or that the shopowner is acting on their behalf in having a cc system on his premises?

CptSternn wrote: »

Just like in this case, they are monitoring. It as I said above may not be directly, but they are monitoring people. Just because they have gotten creative with it doesn't mean it is not the same exact thing.

As another example -

Example A -

Users are found to be downloading something - Eircom checks the logs - A letter is sent

Example B -

Users are found to be downloading something via a third party acting on behalf of Eircom - Eircom checks the logs - A letter is sent

I don't see any difference, the process is the same and the outcome is the same. It just appears they are playing with semantics. You get from A to Z directly down the same route.

You may not see any difference that would appear to be because you dont want to. There are no semantics involved. Eircom act on informaton received that is not monitoring anyone.

For example if I visit Amazon.com I am advised to visit Amazon.co.uk presumably because they check my ip address. I am sure everytime I visit my bank's site my ip address is captured. If I attempted to do something wrong on the bank site then I am sure eventually as part of the investigation my isp might be asked to identify me etc etc.

That doesnt mean my isp is monitoring my every move on the net.

There is monitoring going on all over the net it doesnt make my isp an active agent in that monitoring.

CptSternn

dub45 wrote: »

You are fond of examples so lets take this one:

If you go into a shop and steal something and are caught on camera - then the shop owner is in a postion to make a complaint to the gardai and they can they act on it if they choose. It would be plain stupid surely to argue that the gardai are monitoring you or that the shopowner is acting on their behalf in having a cc system on his premises?

In your example the shop keeper is monitoring you. The shop keeper is like Eircom, therefore your example proves my point. He might not have seen the event, but due to the fact he is logging all of his CCTV he went back and later saw the event thanks to his monitoring system.

If you want to compare it to what is happening with Eircom that means a third party rang the shop keeper who even before reviewing the CCTV footage sent out a letter to a customer threatening to ban them from the shop because they were a thief. How is that not libel?

Per your other example about Amazon or a bank -

If the Gards rang an ISP about a case then they would give up evidence as they have that information stored, because they are monitoring the connection, logging events. Again, I think you are proving my point here.

I have worked for decades now in the IT industry. Everything is logged everywhere. That is monitoring. For example one place I was on-site at a few months ago had me run a report pulling from the database connected to their firewall that had details of usage for employees. Were they being 'monitored'? The info was there, I just had to run the report. Were they only being monitored once I ran a report and the data came back? Is that what you are arguing here? Are you saying that logging all of a customers actions is not monitoring until they actually pull it up and look at it?

java

CptSternn wrote: »

They claim they aren't monitoring anyone, yet, if they are keeping large detailed logs of your broadband connections I don't see how they can claim they are not monitoring everyone.

ALL ISPs will keep logs of every time a customer authenticates to their service. They will also have a log of when a customer disconnects and if a customer is online for a long time, they will probably have an intermediate log also. This is how an ISP knows how a particular IP is online at a particular time.

Don't assume because an ISP keeps "large detailed logs of your broadband connection" that it means they are monitoring your activity.

dub45

CptSternn wrote: »

In your example the shop keeper is monitoring you. The shop keeper is like Eircom, therefore your example proves my point. He might not have seen the event, but due to the fact he is logging all of his CCTV he went back and later saw the event thanks to his monitoring system.

If you want to compare it to what is happening with Eircom that means a third party rang the shop keeper who even before reviewing the CCTV footage sent out a letter to a customer threatening to ban them from the shop because they were a thief. How is that not libel?

Per your other example about Amazon or a bank -

If the Gards rang an ISP about a case then they would give up evidence as they have that information stored, because they are monitoring the connection, logging events. Again, I think you are proving my point here.

I have worked for decades now in the IT industry. Everything is logged everywhere. That is monitoring. For example one place I was on-site at a few months ago had me run a report pulling from the database connected to their firewall that had details of usage for employees. Were they being 'monitored'? The info was there, I just had to run the report. Were they only being monitored once I ran a report and the data came back? Is that what you are arguing here? Are you saying that logging all of a customers actions is not monitoring until they actually pull it up and look at it?

Sadly in spite of all your experience you appear to be either totally unwilling to or incapable of appreciating the concept of "responsibilty."

In the system in quesion IRMA are responible for commissioning the monitoring. Eirom don't ask them to do it, don't encourage it, don't pay them for it. Eircom act on information received from IRMA.

Presumably Eircom would be only too happy if they never heard from IRMA again.

CptSternn

dub45 wrote: »

Sadly in spite of all your experience you appear to be either totally unwilling to or incapable of appreciating the concept of "responsibilty."

In the system in quesion IRMA are responible for commissioning the monitoring. Eirom don't ask them to do it, don't encourage it, don't pay them for it. Eircom act on information received from IRMA.

Presumably Eircom would be only too happy if they never heard from IRMA again.

We are talking about legal liabilty.

Your post, right here, sums it up -

In the system in quesion IRMA are responible for commissioning the monitoring. Eirom don't ask them to do it, don't encourage it, don't pay them for it. Eircom act on information received from IRMA.

Lets say I email a complaint to Eircom and claim an IP address broke a law. Would Eircom then look up the user info and send out a threatening letter without having any evidence to back it up?

Why not?

What would be the legal ramifications if they did?

The IRMA are acting as proxy agents of Eircom from a legal standpoint.

Another similar scenario - remember the voice mail hacking in the news a while back? A private investigator hacked various celebs voice mail. He then sold those voice mails to newspapers. The newspapers claimed, he wasn't working for them and they didn't tell him to do it, therefore they were not responsible and could not be held liable. The courts ruled differently.

The same is true here. Eircom may not be asking IRMA to monitor people, but it is taking that information and using it, therefore they are acting in proxy for the company. Whether or not they pay them or ask them to do it has no bearing.

We are talking about legal liability. The customer is not having their service cut off by the IRMA, nor are they being sent a threatening letter claiming they are a criminal by the IRMA. Eircom shoulders the legal burden for this as they are the ones in direct contact with the customer.

ZOLTAN28

I am on my second strike from Eircom - when i got the first I found the source and stopped it - then I got another for something I know was not downloaded in this house.

Needless to say if I get a third and they slap me with a 7 day ban I will be slapping them with an immediate cancellation.

Has anyone been hit with the three strikes and if so did you just put up with the withdrawal of service?

dub45

ZOLTAN28 wrote: »

I am on my second strike from Eircom - when i got the first I found the source and stopped it - then I got another for something I know was not downloaded in this house.

Needless to say if I get a third and they slap me with a 7 day ban I will be slapping them with an immediate cancellation.

Has anyone been hit with the three strikes and if so did you just put up with the withdrawal of service?

Did you contact them about the second letter?

CptSternn

ZOLTAN28 wrote: »

I am on my second strike from Eircom - when i got the first I found the source and stopped it - then I got another for something I know was not downloaded in this house.

Needless to say if I get a third and they slap me with a 7 day ban I will be slapping them with an immediate cancellation.

Has anyone been hit with the three strikes and if so did you just put up with the withdrawal of service?

I would slap them with a lawsuit. Unless they can prove it was you, which I am betting they cannot, they will find themselves in an actionable position.

I would ring a local solicitor or better yet, many towns have a free legal aid organisation, you might want to get in touch with them as I am sure they would be more than happy to help.

dub45

CptSternn wrote: »

ZOLTAN28 wrote: »

I am on my second strike from Eircom - when i got the first I found the source and stopped it - then I got another for something I know was not downloaded in this house.

Needless to say if I get a third and they slap me with a 7 day ban I will be slapping them with an immediate cancellation.

Has anyone been hit with the three strikes and if so did you just put up with the withdrawal of service?

I would slap them with a lawsuit. Unless they can prove it was you, which I am betting they cannot, they will find themselves in an actionable position.

I would ring a local solicitor or better yet, many towns have a free legal aid organisation, you might want to get in touch with them as I am sure they would be more than happy to help.

Lawsuits are for wealthy Americans and their legal system.

Give Eircom a ring according to their website they have dedicated staff for dealing with these issues.

ZOLTAN28

They rang the house but spoke tomy wife as I was in work - I posted my annoyance on their forum here but I do intend ringing them.

Just as they can't prove I did download it - I can alsonot prove I did not.

CptSternn

ZOLTAN28 wrote: »

Just as they can't prove I did download it - I can alsonot prove I did not.

The burden of proof falls on them. THEY are making the accusation. If they cannot back it up with specific evidence to prove this then THEY are liable.

If anyone accused me of being a criminal, twice, and engaging in illegal activity, twice, I would have my solicitor all over them.

When something gets me riled, I don't get angry - I just ring my solicitor. HE gets angry.

ZOLTAN28

In their letter they name the file download, the torrent client used and the time and date - that is their proof.

I am hopig for a 'ban' as I will be cancelling with them as soon as I get it - I find the whole policy extremely distasteful whether people are downloading or not.

CptSternn

ZOLTAN28 wrote: »

In their letter they name the file download, the torrent client used and the time and date - that is their proof.

I am hopig for a 'ban' as I will be cancelling with them as soon as I get it - I find the whole policy extremely distasteful whether people are downloading or not.

If it were me, I would challenge them and have them prove this, with detailed logs that can prove it happened. I would also go as far as to file a complaint against them for defamation.

When did you get your modem/router from them? Due to a huge security flaw all of the models they sent before like 2009 were wide open so anyone with a computer in wifi range could log right on. I would argue that there is a good chance due to their lack of security it could have been someone else, and again, the burden of proof falls on them to prove this is not the case, which they can't because they already made this fact public.

wheresmybeaver

ZOLTAN28 wrote: »

In their letter they name the file download, the torrent client used and the time and date - that is their proof.

I am hopig for a 'ban' as I will be cancelling with them as soon as I get it - I find the whole policy extremely distasteful whether people are downloading or not.

You may have found an easy way to get out of contract with Eircom! Download a few Bieber and Gaga albums and you're out!

thefinalstage

CptSternn wrote: »

If it were me, I would challenge them and have them prove this, with detailed logs that can prove it happened. I would also go as far as to file a complaint against them for defamation.

When did you get your modem/router from them? Due to a huge security flaw all of the models they sent before like 2009 were wide open so anyone with a computer in wifi range could log right on. I would argue that there is a good chance due to their lack of security it could have been someone else, and again, the burden of proof falls on them to prove this is not the case, which they can't because they already made this fact public.

Eircom are covered in this regard due to their actions when the issue occured. They informed affected customers. It is a persons responsibility to secure their own wireless network. Read the terms of use

CptSternn

poisonedstream wrote: »

Eircom are covered in this regard due to their actions when the issue occured. They informed affected customers. It is a persons responsibility to secure their own wireless network. Read the terms of use

Just because they released a warning does not mean they are covered. Thats like saying a company could release a dodgy product that is known to cause fatalities and they later send out an email to some of their customer and inform them of this and therefore they no longer have any liability.

CptSternn

wheresmybeaver wrote: »

You may have found an easy way to get out of contract with Eircom! Download a few Bieber and Gaga albums and you're out!

Here is another crux of the issue - you don't have to download ANYTHING, just connect to a couple of swarms and hit pause. You won't download a single byte yet you still could be reported as doing so, except for the fact if they did come to your house they would find nothing, AND if they had proper logs they would be able to see you didn't download the file in question.

You can claim you were just checking out swarms and not downloading anything, as it is possible, they would have to prove you wrong since the burden of proof would fall on them.

Right now it's like you walk out of a dodgy pub and they claim you are a criminal engaged in criminal activity even though they have no record of what you did inside. They only have the word of a third party that can only tell them you were seen inside, no one can confirm what you did there.

thefinalstage

CptSternn wrote: »

Just because they released a warning does not mean they are covered. Thats like saying a company could release a dodgy product that is known to cause fatalities and they later send out an email to some of their customer and inform them of this and therefore they no longer have any liability.

Your comparision is in now way the same. Eircom did not know of the issue while releasing the modems and rectified it as soon as they found out. This is not life or death either. Coupled with the fact that the user is responsible for the security of their own network and have been since signing up your point is moot.

If users can't be bothered rectifying a well known security issue, at this stage it is their own fault.

ZOLTAN28

I have taken it up with Eircom - through the forum they have here on boards.

I will await the results of their 'investigation' with interest.

PS router is pre 2009.

Mr. G

ZOLTAN28 wrote: »

I have taken it up with Eircom - through the forum they have here on boards.

I will await the results of their 'investigation' with interest.

PS router is pre 2009.

Eircon don't have a customer service dept that actually listens to calls and helps the customer in what ever way they can.
They just through an address at you and expect you to post them a letter. I sent Meteor (owned by eircom) an email and an online complaint form weeks ago and still never got a reply. They can do whatever they want, they would get away with murder to a certain extent.

Anyways, I don't think we are affected. Was this issue about the silver netopia router? I remember eircom published this online in 2009 and since, haven't offered to reset the security measures which, were very easy. It is stupid to use a formula from the routers name and then use it in a wep key..

I haven't got any letters from eircom though.