South African ISPs would struggle to monitor user traffic for illegal downloads and streaming without substantial impacts on their network performance and the prices of broadband packages.

This is according to the Internet Services Providers’ Association (ISPA) – an Internet industry body which represents hundreds of ISPs in South Africa.

These comments came in light of a new proposal from the Department of Communications and Digital Technologies (DCDT) which forms part of its Draft White Paper on Audio and Audio-visual Content Services Policy Framework.

This whitepaper proposes legislative amendments to deal with piracy in general, but during a recent parliamentary presentation, DCDT chief director of broadcasting policy Collin Mashile specifically named illegal file-sharing websites and streaming platforms as major culprits.

According to Mashile, the Electronic Communications and Transactions Act (ECTA) should be amended to require collaboration from ISPs in shutting down or blocking access to pirated websites, he said, noting the prevalence of these types of partnerships in other countries.

ISPA has told MyBroadband that the Electronic Communications and Transactions Act 2002 (ECT Act) currently stipulates that ISPs in South Africa are not obliged to monitor traffic flowing over or stored on their networks for the purposes of determining whether unlawful or illegal conduct or content is indicated.

This point was emphasised again in the Cybercrimes Bill, which was recently passed by parliament and is currently awaiting Presidential assent.

ISPA explained that it was currently possible for ISPs to flag potential illegal downloads, such as in the case of BitTorrent traffic.

However, these services often carry a mixture of legitimate and illegal content, and it is not simple to differentiate between the two.

“For the most part, whether or not a file can be legitimately distributed is a complicated and nuanced intellectual property question not easily solved with technology,” ISPA said.

“The same file may be completely legal when downloaded from the rights owners site, but violate copyright when re-downloaded from another user.”

Slower performance and expensive prices

ISPA noted that most ISPSs designed networks to optimise the flow of traffic, not to monitor it.

Repositioning their services for enhanced tracking capabilities would necessitate spending on additional resources.

“Any obligation to monitor would likely require ISPs to re-architect portions of their network, and deploy additional, specialised hardware,” ISPA said.

In addition, this could have a significant impact on overall network speeds and performance.

“This may come at the expense of reducing redundancy and increasing bottlenecks and single points of failure, something most ISPs strive to avoid,” ISPA explained.

“In addition, they’d likely need additional staff to both install and configure the monitoring systems, and to deal with the resulting complaints.”

Ultimately, the costs of these changes would be offloaded onto the consumer, forcing them to pay more for broadband.

This would therefore go against the government’s vision of creating a conducive environment for affordable Internet for all South Africans.

VPN usage on the rise

ISPA said that it is increasingly common for consumers to make use of VPNs and other encrypted services to disguise the nature of their traffic.

In Mashile’s presentation to Parliament, he noted that government departments should cooperate to ensure anti-piracy measures are effective and to crack down on those who try to circumvent the government’s anti-piracy measures.

VPNs could therefore be flagged as one of the ways to bypass anti-piracy measures.

However, ISPA said that VPNs are often used in legitimate applications, such as facilitating secure remote working and allowing students to access online resources.

“Widespread use of such services would make it practically impossible for ISPs to differentiate between legitimate use and illegal downloads,” ISPA said.

In addition, stopping the use of VPNs by their users would be “extremely difficult if not impossible for ISPs to achieve”, and probably prove pointless due to alternative mechanisms which serve the same purpose as VPNs.

“DNS over HTTPS (DOH) is an example of a new approach which provides additional layers of privacy protection to Internet users and which limits the ability of ISPs to filter traffic based on DNS requests,” ISPA stated.

Stopping piracy

ISPA noted it recognised the interests and concerns of rights holders and supports the policy objective of building a vibrant local content industry.

“To this end, ISPA has over the past 20 years worked with government, rights holders, and representative bodies to provide cooperation and practical assistance within the applicable legal framework, particularly the take-down notice procedure,” the organisation said.

“Existing legislation requires that end-users would have to be aware of monitoring of their use of an Internet access service and explicitly consent to such monitoring, i.e. transparency should minimise distrust,” it added.

It proposed that new and disruptive business models which favour consumer choice and affordability would be the best ways to curb piracy in the country.

Draft policy is excellent

The organisation stated the draft policy in the main is an excellent document which aims to modernise broadcasting policy and accommodate the new ways in which content is produced, distributed,  and consumed.

ISPA emphasised that any frameworks – including one which aims to force ISPs to monitor illegal downloads and block illegal website – would have to comply with other relevant legislation, particularly the Regulation of Interception of Communications and Provision of Communication-related Information Act 2002 (RICA) and the Protection of Personal Information Act 2014 (POPIA).

“This involves balancing competing rights contained in the Bill of Rights and is far from being a simple exercise,” ISPA said.

“Where ISPA has any concerns it will raise these in written submissions and engage in the further process to finalise and implement the policy,” the organisation said.

It noted it will specifically focus on assisting policy-makers to understand how the Internet access industry works and the practical difficulties which occur therein.

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