A new report written by University of Idaho Law Professor Annemarie Bridy has found that the upcoming "six-strikes" system is potentially unfair and far too secretive.
Under an agreement made by the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and major US ISPs, the Center for Copyright Information (CCI) will be tasked with monitoring and tracking net piracy activities as part of the copyright alert system (CAS).
Among Professor Bridy's biggest concern is the way the CAS deals with proof and the presumption of innocence.
"When it comes to the norm of fairness CAS leaves much to be desired. With respect to procedural fairness, the system lacks the presumption of innocence," states the report.
"The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system - that a person accused of having engaged in illegal conduct is presumed innocent until proven guilty in a court of law," Professor Bridy then adds.
And this is all based on assuming the evidence used is valid, with little or no avenues to argue against its validity. Professor Bridy argues that independent verification of the evidence is required in order to make the process fairer. "Moreover, the accuracy of those methods should be verifiable by independent experts who do not work as consultants for CCI and who are not bound by nondisclosure agreements," she added.
Out of the five norms that Professor Bridy says should be central to any copyright laws, freedom of expression, privacy, fairness, proportionality, and transparency, it's the last one that CAS also has a major failing in.
With negotiations of the deal with ISPs, with help from the White House, kept largely hidden from the public and public interest groups, the entire system starts off lacking in transparency. It's then made worse that the entire evidence collection system, supposedly evaluated by independent technical expert, also lacks transparency. Said independent technical experts are subject to confidentiality agreements that forbid them from disclosing "technical inadequacies" of the system in use.
And any outcomes from the program will also be kept hidden.
But Professor Bridy also identified some silver lining within the big grey cloud that is the CAS. For one, the punishment dished out by CAS will be less severe compared similar systems deployed by France, which can lead to permanent Internet disconnections.
Other positives include the lack of content blocking or filtering, and an appeals process that allows alleged offenders to have their case heard before any punitive actions are taken.