Wednesday, 24 February 2010

"When is ‘disconnection’ not disconnection? When it is ‘account suspension’, of course."

A day or two ago, the news that campaigners against the Digital Economy Bill (or at the very least, Clause 17) wanted to hear was announced. Or so it would seem. The Guardian technology pages led with somewhat optimistic headline: "Plans to cut off internet connections of illegal filesharers dumped"

Background

First, a little context may be useful. This is drawn on what has commonly been referred to as the "3 strikes" rule, whereby people accused of copyright infringement via the internet will be given three warnings before disconnection (like the unpopular HADOPI law in France, which seems like the inspiration for Clause 17 of the Digital Economy Bill). The role of peer-to-peer technology is central to this argument.

The Guardian story came off the back of a relatively small petition on the Number 1 website which highlighted the problems of the phrasing in the Bill, a point that will be picked up on again later in this post. The petition states:
The use of P2P is neither illegal nor exclusive to copyright theft. Many free software providers use this form of distribution, as does the BBC’s iPlayer. If citizens are innocent until proven guilty, ISP’s would be forced to monitor internet usage to ensure that no copyrighted material is being transferred. This flagrant disregard for privacy is comparable to forcing the Post Office to search through parcels for photocopied documents or mixtape cassettes. Such requirements would place enormous strain on ISP’s whilst failing to prevent the distribution of copyrighted material through hidden IP’s, http or ftp.”
Previous concerns have stated that the Internet is increasingly central to everyday life and that the act of identifying who was actually guilty of using peer-to-peer software to infringe copyright was difficult and ill-conceived, especially in shared households or on public 'cloud' based services. This is a point that is also addressed later in the same petition.

All of this is with the aim of cutting illegal peer-to-peer filesharing by 70% - something the Government, led by Lord Mandleson, is determined to do in order to appease the copyright industries. The Digital Economy Bill proposed a series of 'technical measures' including traffic shaping and disconnection for those the offending IP addresses the copyright industry identifies as being guilty of a crime. The major concern here is, of course, the lack of judicial process or the ability for the accused to defend themselves. The onus will be on the accused to prove they are innocent - people who may not have the technical knowledge or skills required to sift through router logs to be able to prove they were not responsible for the 'crime' they may be accused of.

What's changed (if anything)?

With the context established, let's consider the Number 10 response to the petition which got The Guardian and critics of the Bill excited (if somewhat momentarily):
[T]he Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures.
The key phrase here is 'temporary account suspension' as opposed to disconnection. It sounds much less punitive and more temporary than permanent. Jim Killock, the Executive Director of non-profit human rights group ORG, was quick to point out to several people via Twitter (myself included) that the phrasing was misleading 'government-speak'. To the Guardian's credit, they updated their news story with reference to Killock and the ORG's blog.

It's worth citing some of the blog post at length:

When is ‘disconnection’ not disconnection? When it is ‘account suspension’, of course.

The government therefore felt justified in a response to a petition on Friday in claiming that they were not intending to ‘disconnect’ families from the net after accusations of copyright infringement. If you think they mean that their internet cabling will still be plugged in at the wall, then that’s true.

If you think they mean that these families will be able to connect to the internet, well, no they won’t. Their connection will be switched off.

Please do not be confused by the government’s semantics. BIS and DCMS decided in the summer that they would not refer to ‘disconnecting’ users, because that sounds harsh and over the top. ‘Temporary account suspension’ sounds much more reasonable.

Language matters. What journalist is going to run a story on ‘temporary account suspension’ (yawn)? This is why the government has chosen these disingenuous terms: it‘s just more spin.

What we still don’t know is how long a family’s internet might be disconnected for.

A month? Three? A year? There is nothing in the Bill or any of the notes that we are aware of that might give us a clue.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

The issue here is what Killock referred to as 'government speak'. The phrasing of the response by the Number 10 website seems to hint at a compromise when the Open Rights Group suggest this semantic distinction is a deliberate attempt to mislead the public. A classic case of New Labour spin.

What is more alarming is that the power to determine the length of the suspension will be granted to the Secretary of State, based on recommendations from Ofcom (something I blogged about late last year). This is highlighted in a subsequent story in the Guardian yesterday when a Department of Business, Innovation and Skills (DBIS) spokesperson was quoted as saying:
"If government decides to use technical measures the Secretary of State would be required to consider an independent report from Ofcom on whether they should be imposed, and on the most effective and proportionate measures."
Mandelson would then decide the upper limit for a "temporary" suspension – which the DBIS indicated would be at least a few days. Parliament needs to be consulted in order to establish the duration of any suspensions towards the upper limit of the punishment scale. The worrying issue here is laid bare in the article:
"an Order cannot be amended by parliament; it can only be accepted or rejected. Any government with a working majority will be able to get an order passed – and so would be able to implement a "temporary" suspension of indeterminate length without any legislative review."
The Government has all the balls in its court with this one, and on the current form, seem determined to push through their plans despite opposition. Only time will tell if they are able to do so before the General Election is called in May.

Take Action

The ORG are encouraging people concerned by this Bill to take action. If you are encouraged to resist this problematic Bill then write to your MP and write to your local newspaper demanding that they get your local MPs to reveal their support for these proposals. You can find convenient templates over on their wiki page here. Get involved

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