There is a metric ton of cash that’s being poured into eHealth initiatives, and to date it doesn’t appear that governments are recognizing the relationship between copyright law and eHealth. That makes a lot of sense in some ways – when most of us think ‘medicine’ and ‘doctor’ we think about privacy as one of, if not the, key issues (while, other than hopefully curing whatever is making us ill!). In this light, we wonder about the security of databases, the willingness of healthcare providers to limit access to records, and so forth. People in Canada are worried enough about privacy that, on the Ontario Government’s eHealth Ontario site, ‘Privacy and Security‘ are front and center as a main link on their homepage. When we turn to British Columbia’s October 23, 2009 Heath Sector Information Management/Information Technology Strategy and search for ‘privacy’ we see that the term appears on 18 of the report’s 55 pages. Moving over to the Ontario Information and Privacy Commissioner’s May 2, 2006 presentation on health information and electronic health records we, again, see emphases on the privacy and security concerns that must be posed alongside any movement to massively digitize the healthcare infrastructure.

What we see less of in the eHealth debate are the prevalent dangers accompanying threats to cut citizens off of the ‘net as a consequence of copyright infringement. It’s this issue that I want to briefly dwell on today, in part to start ramping up some thoughts on the wide-ranging effects of three-strikes laws that are starting to be adopted and/or seriously discussed in various jurisdictions around the world.

To give an overview, three-strikes laws in the copyright context are generally presented as a way of curtailing copyright infringement. Often acting under the assumption that a downloaded copy of a file is the equivalent of a lost sale, major content and rights holders insist that they are losing billions of dollars per year to Peer to Peer (P2P) filesharing. While I will note that this is a relatively insane equivalency (it is largely like arguing that every person who opens a book in a bookstore, reads it for about 10 minutes, and then puts it down constitutes a ‘lost sale’ – for more on this read Doctorow’s Ebooks: Neither E, Nor Books), there are lots of great articles you can read that deal with this issue and so I’m not going to dip my feet into that argument here. You might ask how it is possible to identify copyright infringing work, and one of the ways of doing so is through specific implementations of Deep Packet Inspection (DPI) appliances by Internet Service Providers (ISPs). Virgin Media is trialling a system that will generate a copyright infringement index (though won’t identify particular individuals who are infringing on copyright) and DPI vendors such as iPoque have already produced equipment that is designed to identify infringing file transfers in realtime.

Three-strikes laws have a common, general, format: after an individual is found, or believed to have been found, infringing on copyright three times they are forcibly disconnected from the Internet by their ISP either at the behest of the government or content holders. The particular legal structure that facilitates these ejections from the Internet differs – sometimes there is a presumption of innocence and requirement that infringing use is proven, whereas in other systems accusations alone suffice – but the common end is the same: during an era when broadband is seen as a key to performing job searches, gathering academic research, developing knowledge about our illnesses, and discovering new cultural artifacts, copyright holders want to insist that their intellectual property rights should be foregrounded and other social goods put to the back of the line.

This bring us to the question posed by this post’s title: “Will copyright kill eHealth?” What happens when, after investing billions of dollars in ‘revolutionizing’ the current health system so that individuals are ’empowered’ to access their health records, governments and their citizens realize that they are in a digital wasteland, where accessing health records is dependent on good copyright-related behaviour? When I’m tasked with absolutely securing my wireless network so that a war driver can’t access my network and download some pop track, does this mean that I should sign up for expensive third-party services to guarantee access to my ‘newer and better’ health records and other government services? To alleviate these anxieties, perhaps I’ll be able to pay a small monthly fee to my ISP and they will, on my behalf, block anyone on my network from accessing potentially copyright infringing work from non-sanctioned repositories so that I can participate in the new digital economy.

I’m not suggesting that health authorities are necessarily experts in areas of copyright, network management, network surveillance, or data transactions. Typically, they’re not, and citizens don’t expect their M.D. to understand the ins and outs of file transfer protocols, file signature analysis, or data packet analysis. While I’ve suggested (recently, no less) that it is important to consider the particular impacts of certain ‘high-functional’ technologies, such as deep packet inspection, we do still need to step back occasionally and think of some of the possible impacts that high-functioning technologies and the surrounding basin of law might have on the delivery of core, newly digitized, government services. I don’t want to live in a world where my ISP has a real market incentive to ‘sell’ me the equivalent of copyright-infringement ‘insurance’ on a monthly basis so that I can view the digital records that governments and corporations retain about me. I actually don’t think that ISPs want to live in this world either; in such a world they would be placed in a position of liability upon failing to prevent me from accessing infringing material! It’s because of the wide-ranging possibilities of network intelligence and the laws around it that research into network intelligence and security is so interesting – with the Western transition to the digital, and the ability to watch and impact digital flows, the role of the ISP will only become more and more significant to citizens’ daily lives.

Who can we turn to in the event that some kind of a three-strikes law becomes manifest in a Canadian context? It’s entirely possible that the inspection of data flows for copyright infringing material might be ‘privacy protective’ – privacy might be built into the infrastructure by design per the governing ethos of the Information and Privacy Commissioner of Ontario – and this suggests that the language of privacy may be insufficient to really limit the challenges of any three-strikes law. I have similar worries about the ability for consumer protection laws to effectively limit the negative consequences of a three-strikes law (though Canada does have one of the world’s forefront copyfighter’s on the people’s side), and if we require judges to hold real cases before individuals have their digital lifelines terminated then court costs over what are (likely) just people ‘browsing content’ will be exorbitant. The transition to electronically delivered content has (supposedly) been devastating for how the major content owners have been able to turn profits, but we need to go further than just say they need to develop better models instead of suing people. We need to ask this: should government be developing laws the prop up questionable current-day business models at the potential expense of wasting billions in public infrastructure upgrades, or should government be taking a longer view of things and start siding with both citizens and their own allocation of infrastructure dollars? I worry that if government doesn’t more prominently side with themselves and their citizens, we’ll see eHealth and other eGovernment ventures die under the knife of copyright reform and protection, and that would be a tragic shame and absolute waste of citizens’ tax dollars.