Beyond Three Strikes

Posted by denny on Fri 11 Dec 2009 at 18:53

There has been widespread criticism of the Government's Digital Economy Bill lately - political parties, campaigning organisations and some of the largest players in the online economy have taken turns in pointing out its flaws. A lot of the most vocal attention has been focused on the 'three strikes' provision, that threatens to disconnect (without trial) any household that record or movie companies accuse of unlicensed filesharing. However, there are clauses in the bill that make this 'guilty until proven innocent' approach to stamping out filesharing look subtle by comparison. Most particularly, Clause 11 and Clause 17 are really quite concerning to anyone with an interest in civil liberties.

Clause 17 is the one that Google, Facebook, Yahoo and eBay didn't like. It allows whoever holds the position of Secretary of State (currently Lord Mandelson, but presumably someone from the Tory ranks before next summer) to introduce new laws affecting all aspects of online commerce and communication, via the process of statutory instrument (also known as secondary legislation). This 'fast track' process avoids the need to put said laws through the full process of Parliamentary debate.

The importance of this can't be overstated - it allows significant changes to be made to the law of the country without most of the oversight that usually takes place when a new law is proposed, and in the case of this bill it would be a very powerful tool for an oppressive government (present or future) to bring in more monitoring and control of online communications. This clause also provides an easy route for commercial interests to apply leverage to the legislative process - much easier to wine and dine one person than half of Parliament. Indeed, we'd be far from the first to voice a suspicion that this bill already owes something to that wining and dining process, with crucial parts of it being added after Lord Mandelson had dinner with movie producer David Geffen at his holiday villa in Corfu.

The only thing holding back the powers in Clause 17 is that the changes to the law have to be framed in a way that makes them relevant to reducing copyright infringement - and that can be twisted to cover a lot of ground. We've seen lately how flexible our government and police are willing to be with applying legislation to new and unexpected situations. Terrorism laws have variously been used to arrest peaceful protestors and to harrass professional photographers and journalists over the last few years (and indeed over the last few days), and also to freeze the financial assets of another country during Iceland's recent financial meltdown - not something that was mentioned among the potential uses of the laws when they were being introduced. Broad laws grant broad powers leading to broad applications... or abuses.

Meanwhile, Clause 11 gives the Secretary of State the power to compel ISPs to "implement technical measures" to achieve any "technical obligation" he or she specifies. Strikingly, this clause allows the Secretary of State to impose such obligations if he or she "considers it appropriate" in view of 'any consideration' - making this power completely unchecked in application as well as unlimited in scope. Framed as it is in the context of copyright infringement and 'three strikes', it's easy to read this clause as providing the power for cutting off Internet connections of copyright infringers (which is bad enough, given the lack of due process), but in fact on reading the clause carefully you will discover that the power is far, far broader than that - it is virtually limitless, no pun intended.

Francis Davey, a barrister specialising in Internet law, points out that one obvious use for such a power would be for state censorship - to compel all ISPs to block access to specified websites - starting with less contentious sites such as those listed by the Internet Watch Foundation (itself the cause of some debate earlier this year when it caused the UK's Wikipedia access to be seriously restricted), but also the power could easily be used to block access to politically sensitive websites - such as the infamous Wikileaks, which has caused so much embarrassment to various political and commercial interests in recent years.

As well as the broad definitions of 'technical goal' and 'technical measure', which give Clause 11 power well beyond its stated objectives, it is worrying to note that while Clause 17 uses secondary legislation (statutory instruments) to achieve its goal of shortcutting the Parliamentary process, Clause 11 does not even require this much formality. There is no extra legislation, primary or secondary, required to impose conditions on ISPs under this clause - just the Secretary of State's decision in light of 'any consideration'. It hardly needs repeating that this is inadequate safeguard for such broad powers.

In some ways these clauses are not unusual in a piece of New Labour legislation - this Government more than any other seems to have favoured the hasty passing of vaguely-phrased and overly-powerful legislation - but they are very worth campaigning against. Our legislative system is as complex as it is for a reason - it provides a number of checks and balances intended to prevent bad law making its way into our judicial system - and this Government's attempt to shortcut that process reveals either a lack of understanding of the reasons for that complexity, or a lack of respect for those reasons. While Hanlon's Razor suggests that we should presume the former, I am increasingly finding myself drawn to the latter option - our Government knows that its intrusive and unfair laws will not pass proper scrutiny, and so it wishes to make new laws without such scrutiny taking place.

There is less than one week left for the Lords to pass comment on this bill. If you have not already done so, I urge you to take the following actions:

(a) Use Write To Them to write to a member of the House of Lords explaining that you are concerned about the Digital Economy Bill for a number of reasons - probably including 'three strikes' and the points above. Your email doesn't have to be long, but it does have to be in your own words. The Lords have a relatively good track record for rejecting laws that restrict civil liberties.

(b) Join the Open Rights Group, an organisation campaigning for digital rights in the UK, who have been working hard on raising awareness of the many problems with this bill. They have also in the past campaigned against RIPA and Phorm, and will soon be taking a look at the problems with ACTA.

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This article is copyright 2009 denny - please ask for permission to republish or translate.