• by Wendy Davis , Staff Writer @wendyndavis, February 22, 2008

A U.K. lawmaker this week threatened to introduce a bill requiring Internet service providers to crack down on piracy unless the companies voluntarily take steps to stop it.

That move follows a new "three strikes" law in France that requires Internet access companies to cut off users who engage in piracy three times.

These kinds of laws might sound good to record labels or movie studios, but implementing them is another matter. Not only do such laws pose practical problems, but they'd probably also be unconstitutional in the United States.

In fact, it's hard to imagine how the government could order an Internet service provider to cut off a user's means of communication without violating First Amendment free speech principles. Just as the authorities here can't generally cut off people's phone lines or shut down newspapers, they also can't order the service providers to do the same.

Still, that's not to say U.S. Internet access companies won't consider policing their networks on their own. AT&T for one is already mulling using technology to filter out pirated content.

But that prospect raises a whole new set of practical concerns -- namely, that filters don't work. Users that are determined to get around filters can defeat them by encrypting content. Additionally, filters can't tell whether a user is making fair use of copyrighted material.

Instead of trying to insert themselves into legal battles between entertainment companies and alleged pirates, Internet service providers would do better to focus on figuring out how to increase their capacity.

As things are, companies like Comcast are impeding traffic to legal peer-to-peer sites like BitTorrent to prevent congestion on their networks. That type of interference will ultimately hurt entertainment companies, which increasingly distribute their work online, as well as consumers. If entertainment companies want to be proactive about the Web, they'd be devoting themselves to finding ways to increase bandwidth capacity, rather than trying to burden ISPs with policing duties.