Even HP acknowledges the inevitability of darknets

July 26, 2009

http://news.cnet.com/8301-1009_3-10295761-83.html

I can't wait to see what the next generation of P2P will turn up —
sounds like we're looking at major improvements in both security *and*
usability. All we need is some kind of catalyst… like more states
passing 3 strikes laws.

In fact… I wonder if the "three strikes" debate will turn out to be
the darknet's best friend? Consider:

Not long ago, there were real concerns that vigilante music-industry
groups in line with docile ISPs could start terminating users on the
assumption of piracy based on traffic signature alone. After all, when
darknets are employed, that's pretty much the only clue you've got.

But the three strikes debate has helped harden into place the notion
that users can't be terminated without court order. And given the
strict evidentiary requirements of most courts (at least, those in
countries that are interested in deterring piracy), I think the effect
is to raise the bar for prosecution impossibly high.

Remember, the *only* user successfully prosecuted for piracy was using a
very insecure, early-generation pirate tool. If she had just been using
a modern system like Bittorent, the defense would have completely collapsed.

(With Kazaa, they just ask her computer "what is your name, and what
have you pirated?" and it happily complies. With Bittorrent, her
computer has no name, and the only way it tells you what it has is if
you happen to be pirating it at the exact same time. Not only does it
become astronomically more difficult to "troll" for pirates in the first
place (become a massive pirate distributer and see who shows up, or
directly tap the backbone and see who pirates on your watch), the
resulting "haul" consists of low-value, semi-anonymous IP address.)

So today's legal climate is, frankly, as friendly to the anti-pirate
forces as it'll ever get. Here on out it will only get more difficult
to gather adequate evidence, and courts will only become more demanding
that you obtain it before authorizing action.

All this is a perfect storm for the "darknet defense": "Your honor, I am
not a pirate. I just do a lot of legal VoIP using "DarkSkype" (which
happens to maintain no calling records) to international colleagues
outside your subpoena jurisdiction. I also watch a lot of legal video
using "DarkTube" (which maintains no browsing history) from
international websites, again, outside your subpoena jurisdiction. As
for that big red "DarkTorrent" button that says "Get any song, movie,
book, or application for free!", I never pressed it even once. And as
for that 100GB encrypted "DarkNet Cache" folder sitting on my hard
drive, I have no idea what's in it, and I don't know the password. Honest."

Should be fun to see how this develops.

-david

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