The ISPAs 2010

Thursday night (8th July) was a glittering night for the Internet industry - the annual ISPA Awards bash at the Marriott Hotel in Grosvenor Square. After all the testing and all the submissions it was time to hear the judges verdict.

The awards are the Internet industry’s chance to recognise good practice and good performance. Over the last 12 years they have changed with new categories and new means of assessing performance in the ISP Division. The ISP Division recognises best practice across hosting, customer service, consumer and business broadband etc. The Times noted that the ISPAs were, ‘The awards that could have the most direct bearing on your life’ and the Daily Mirror called it, ‘The Internet event of the year’. Whatever, it is without doubt keenly awaited by those in the industry and keenly commented by customers and others.

Congratulations to all those who won. The Crusher was pleased to see the team at NewNet picking up another piece of acrylic to add to the two previous awards - this year in the class of Best Dedicated Hosting. Well done to the NewNet team and to all those who won in the ISP Division.

But, it is the Special Awards that arise more interest. New categories here for digital inclusion (Bolton Literacy Trust) and for Internet Safety (Childnet), Access Innovation (The Alston, Cumbria, CyberMoor project with a special commendation to SW Internet CIC) and Corporate Social Responsibility (Orange).

At the end of the evening there are two awards that evoke much wider interest - the Internet Hero and the Internet Villain award. Now, in years past The Crusher was pleased to nominate someone who was then awarded the Internet Villain prize so there is always a little more than minor interest here.

What was interesting this year was that both awards recognised different sides of the same thing - the passage through Parliament of the Digital Economy Bill to become the Digital Economy Act. ISPA Council members bestowed the Internet Hero Award upon Tom Watson MP for leading the opposition to the parliamentary fight against the Digital Economy Bill and continuing the campaign to ensure an informed approach to the Act. Well done Tom - your actions in the House of Commons and your speech in the final parts were an inspiration and made it clear that there was not a common cross-party consensus.

The passage of the Digital Economy Bill was fraught and was not helped by changes being made during the consultation period and then by inclusion within the final ‘wash-up’ stages before the end of the parliamentary session and the General Election. There were a number of nominations for the Internet Villain award, all in their own right quite worthy recipients, but in the end, the winner was a shoe-in for the award. It was the Dark Lord himself, Lord Mandelson, formerly Secretary of State for Business and Skills, who had steered the Digital Economy Bill through the various processes. The change that was made during the consultation phase coincided with a weekend meeting with a major rights owner and the final stages were a sham, forcing through legislation that was deeply unpopular and which made fundamental changes to the due process of law.

So, a worthy villain. Sadly, Lord Mandelson was not available to collect his award in person. What a shame - would have been a great appearance and a great acceptance speech!

The new coalition governement has now invited the public to suggest law that should be removed, replaced or amended. Inviting the public to comment is always a risk (a request to introduce a law ‘to allow me to marry my horse’) but sometimes shows popular unrest and resentment. No surprises really to see that some of the largest number of comments and requests related to repeal of the Digital Economy Act. So, it is over to you government, you asked and now you have been told. DEA must go!

A final Westminster salute to the voters?

So now we have it. The Digital Economy Bill has completed all its stages and is about to become law, the last addition to the Statute Book at the end of this Parliament.

There has been wide discussion of the various clauses and a large number of amendment brought forward and, in most cases, subsequently withdrawn. The real problem has been the lack of effective scrutiny in the elected House and the resulting passage of a piece of flawed legislation. The final stages of the passage of this Bill may be something of a parting Westminster salute to the electorate - we really do not care for what you are telling us, we will go and vote on party lines, don’t trample me in the rush back to the constituencies.

The final debate took place in the chamber of the House of Common on Wednesday night. Interesting to follow the discussion and progress via the live webcast. Interesting and informed intervention and discussion from a small number of elected Members including Tom Watson, Austin Mitchell etc. But what was really noticeable was the small number of members who were actually in the House to take part in the debate. At times it seemed that there were no more than a dozen or so - out of some 646.

But wait - after a mere 2 hours and 11 minutes (including time out for the two Divisions) 236 elected representatives filed through the lobbies to vote. Hang on, at best there were only 40 in the chamber for the debate. Where were all the others. Following the debate via the Internet - I doubt it. From the quality of comment made by some I suspect they would not know how. Waiting outside the chamber of the House in order to troop through to the braying of the party whips - of course!

Forget the 5,000 people participating in live online discussion with nary a few in favour, forget the 20,000 who wrote to MPs and who contributed to campaigns against the Bill, forget …..

In fact, forget the views of the electorate, those who will actually cast a vote on Thursday 6th May. Demonstrate that you are all above this, able to force through a badly drafted and fundamentally flawed piece of legislation using ‘wash up’ procedures that involve horse-trading between party managers in order to reach a wholly undemocratic consensus.

OK, the final result of the horse-trading was that some parts of the original Bill was discarded or further amended. Clause 18 is now referred back, Clause 43 relating to orphan rights has been removed, much to the pleasure of photographers. Did it ever really impact on them - perhaps the original intention was that it should not but drafting may have made it possible. Whatever, that is now kicked out.

Out too went the tax (sorry, levy) on fixed line telephone circuits to fund next generation fibre. Oh - but that was dropped from the Finance Bill not from the Digital Britain.

Trying to track down exactly what the new law contains is not easy - until the final version of the Act is published one must cross-reference the original Bill laid before Parliament with Amendments and with the official record of the debate.

If you want to put it together the locations are:
Digital Economy Bill
Commons Amendments
Hansard debate (official record including list of Ayes and Noes)

Go to the Official Record and check to see if your MP voted. Did your MP vote ‘AYE’ (for the Bill) or ‘NO’ (against).

If they voted ‘AYE’ ask them why they were prepared to vote through a Bill that makes fundamental changes to the law, changes the presumption of guilt, introduces substantial new powers for the Secretary of State through ‘Henry VIII’ clauses, provides for Rights Owners to seek details of individual users of an ISPs services etc. etc.

Why were they prepared to force through such a fundamental piece of legislation in the face of very considerable informed dissent and using short-circuit procedures to prevent effective democratic scrutiny of the proposed legislation.

The Bill was introduced by an unelected and unaccountable member of the upper House. Sadly, he cannot be removed on May 6th. Likely he will no longer be in office but he will still have a seat.

As for the others ……

There will be a lot of new faces on May 7th. Some of them may bring experience and a new sense of right and wrong. What they should all realise is that there will be a new order and that the electorate will be looking for change, for some accountability and for some honest representation.

Disconnection or Suspension?

What’s in a word? Is there really a difference between ‘disconnection’ and ’suspension’? Are we now approaching an end game in which the Government will want to make small changes to the Digital Economy Bill in order to ensure that it passes through the Parliamentary process with the minimum of problems before the Prime Minister calls the General Election?

Well, the PM is the only one who knows the date of the election - or so we are led to believe. Smart suggestions have tagged the 6th May as the day, coinciding with the district council elections, but there have been suggestions in mid-February that the PM may decide to call the election earlier, particularly if there appears to be a double dip within the recession.

The Digital Economy Bill has been progressing through discussion in the House of Lords with a succession of amendments being laid before the House, withdrawn or incorporated. The Bill has now been through the Committee stage and will move on to the Report stage with further line by line examination on 1st March. After completion of the Lords stage, the Bill will move on to the Commons for further stages - 1st and 2nd readings, Report stage, 3rd reading and consideration of amendments. The Crusher continues to think that these stages have the possibility of taking more Parliamentary time than will be available.

However, it is noticeable that there have been changes to the Bill. Much trumpeted at the beginning of the process was the inclusion of powers to allow the disconnection of internet service for those found to have been engaged in file-sharing. There had been some suggestion, maybe incorrect but widely publicised at the time, that changes were introduced by the Secretary of State following a weekend meeting with a Hollywood producer, changes that would have hardened up the response to potential file-sharing.

Now, it seems that the Government is back-tracking. A response to a No 10 Petition sets out the Government’s position and that it considers there should be economic recompense for those engaged in creative production. No problem there, and the response goes on to indicate, “that [the Bill] require[s] ISPs to write to their customers whose accounts had been identified by a rights holder as having been used for illegal down loading of their material. In the cases of the most serious infringers, if a rights holder obtains a court order, the ISP would have to provide information so that the rights holder can take targeted court action.” Little difference there to the current procedures where most ISPs pass on notifications of potential abuse and discuss with their customers and where some (ISPs) have been the subject of court action to release details of customers to rights owners.

The interesting line comes later, “We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.” This appears to be a step back from the previous position and may have more than a passing nod to the discussions emanating from Brussels - where it is clear that access to broadband internet is seen as a basic right.

“We will not terminate” - that is the interesting bit and really comes back to ‘disconnection.’ What’s in a word? If you terminate or disconnect an ADSL circuit then the ISP puts an order to the wholesale provider to physically disconnect the circuit at the exchange, to remove the inter-connect on the frame between the PSTN and the ADSL mux. BT raise a charge for this, a charge that is now passed on by most ISPs to end-users. Terminate and you will be charged - ISPs will not want to bear the costs of this and will probably find it difficult to recoup costs from either end user or from rights owner. When the end user wants to re-connect there will be a standard connection charge applied by the wholesale provider. Now, suspend and the link to the internet is removed at the ISP (block the authentication request) but the physical link remains in place. To the end user there is still no access but there is no charge for disconnection and no charge for re-connection (add those two together and you are talking about quite a susbtantial penalty) and the ISP only needs to permit the authentication again when the suspension is served. Depending on the terms of the service agreement, the end user could find themselves liable for on-going circuit charges during the suspension (the wholesale provider will continue to levy these).

In terms that the end user will understand there may be little effective difference (until the charges roll in), they will still be unable to access the internet. French legislation (the ‘Hadopi’ law) suggests that suspension may be applied for up to 12 months - that will pretty much seem like termination to the user - there does now need to be some indication within the UK process as to what the terms of suspension may be.

There do appear to be movements in other areas. An end user may wish to appeal against a decision to apply ‘technical measures’. There does now seem to be some change to the appeal process and to the way in whcih the measures will be applied by Ofcom. This may be particularly important where an end user has a wireless network and someone unknown accesses the network and uses it for file-sharing. If the subscriber can show that they took reasonable measures to prevent access (although the exact nature of ‘reasonable measures’ is not explained) then they may well have a good case for appeal.

There is now no option for the introduction of immediate suspension - technical measures will not be able to be introduced for at least 12 months after the coming into force of the initial obligations code. No suspensions until April 2011 at the earliest (and then likely to be another Government that will take the hit!).

It may well be that the politicians are playing with words before an election - but there are differences between termination and suspension. What we now need is some clarity as to what the intention is in relation to length of suspension - 1 week for first offence, 1 month for second etc.

Welcome to a New Year

Welcome to the New Year - 2010

This will be an ‘interesting’ year - not the least of which through the absolute knowledge that we will have a General Election here in the UK this year and that the outcome is likely to be a change of government.

When that election will be is still open to some form of guess work. It is probable that the only person in a position to determine the election date does not yet know which date he will choose and that the actual date may well depend on circumstances. Hints from recent interviews suggest that later rather than earlier may be the form - The Crusher suspects that the date will go long leaving the current administration to remain in power for as long as they can in the knowledge that they are unlikely to return in power. Enjoy it while you can!

The Crusher suggests that the most likely date for a General Election will be Thursday 6th May. This is the day already determined for local government elections - it simply makes economic sense to hold the General Election on the same day although this has not always been the case.

The last day that an election may be held is 3rd June. The 2005 General Election was held on 5th May with Parliament meeting for the first time on 11th May 2005. The last date that a notice may now be issued to call a new Parliament (requiring an election) is 10th May - the election would then be held 3 weeks later on 3rd June.

However, for the election to be this late the current Parliament would have to run to the end of its statutory period and would expire. Parliaments in recent years have not expired and elections have been called before the last date.

For an election to be held on May 6th, the Prime Minister would have to ask the Queen to dissolve Parliament some 3 weeks before this date. Notice of the election would thus have to be given around 10th April - one week after the Easter holiday.

Now these dates are not so far away and the short period makes the current legislative programme all the more interesting.

Currently high on the agenda is the Digital Economy Bill with its provisions for restrictions on Peer to Peer file sharing etc. The Bill was in second day of committee stage in the House of Lords yesterday (12th Jan) with a large number of tabled amendments. As expected, many of those have now been withdrawn but there have been further significant additions.

The Bill must progress through committee and then formal reading stages in both Houses of Parliament. That takes times and The Crusher suspects that Parliamentary time will not be sufficiently available to allow passage before Parliament is prorogued and an election is called. If the Bill has not then completed all of its stages then it will fail. The Crusher suspects than an incoming administration will not feel that the Digital Economy Bill will be its first priority - rather that will go to more traditional economy. If the Bill does not pass through Parliament before March it may well be some time before it is brought back.

That may be fortuitous - current amendments tabled by the Secretary of State for Business suggest that technical measures could be applied to all subscribers rather than particular subscibers. That could, if implemented and passed, provide for content filtering for all with specific sites identified by copyright owners. A further amendment provides for discussions and representations between the Secretary of State and rights owners to remain confidential - in order to protect their business interests.

Difficult - and not promoting transparent government. The current developments have seen a number of meetings and representations which have changed the way in which the Bill has been presented leaving a hint of some opacity. If there are to be future changes to the Copyright legislation then the reasons for requiring a change should be transparent and open to all.

Whither ‘mere conduit’?

‘Mere conduit’ is a defence - laid down within the European e-Commerce Directive and transposed to UK law within the Electronic Commerce (EC Directive) Regulations 2000 - that allows an intermediary, typically an Internet Service Provider, to limit liability for illegal activity. This follows on from the accepted position that a mail carrier (Royal Mail etc.) is not liable for the contents of mail that it carries - provided that it does not know what is in the package.

Article 12 of the European Directive sets out the position:

‘Mere conduit’

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

So, that seems reasonably clear. An Internet Service Provider (ISP) is an intermediary - they carry traffic across their network, they do not initiate the traffic, they do not select the recipient and they carry it without selection or modification. Provided they adhere to the conditions then they may claim a defence of mere conduit and cannot be held liable for, say, the transmission of illegal criminal content (child abuse content) or unlawful content (Peer 2 Peer file sharing). The problem for the ISP comes when they are told about the traffic or otherwise become aware. Once an ISP is ‘put on notice’ then they must take action.

OK, so why is there a question mark over ‘mere conduit’, what appears to be a well established point of law. The problem, as so many affecting ISPs today, has derived from the peer 2 peer discussion. We know that pressure from the industry has resulted in the ‘3-strikes and you’re out’ process - shortly to be incorporated within the UK Digital Economy Bill. Now it seems that the rights industry has been able to exert pressure in other areas and the outcome of this could be important for the intermediary.

The problem area is ACTA. AC what you say - ACTA stands for the Anti-Counterfeiting Trade Agreement. OK, what has that got to do with ISPs. Governments have been engaged in a series of discussions, the most recent of which have taken place in Seoul, South Korea, to look at the updating of laws to protect intellectual property. Most readers will be familiar with actions brought against online auction houses (e-Bay) alleging collusion in the sale of counterfeit goods diluting the trademark interests of well known luxury brand names. Other actions have been taken by Customs and Trading Standards officers to confiscate counterfeit goods - sunglasses, handbags, rip-off DVDs etc. That all seems fairly straight forward and expected.

The problem comes with the extension of the counterfeiting argument to copyright infringement in the electronic environment. Hints of the nature of the Seoul discussions appeared in leaked preparatory papers. An European Commission (DG Trade) document in September indicated that the EU and US had engaged in discussion in Washington as part of the Intellectual Property Rights Work Group. Within those discussions, a side meeting had been held to discuss the US preparation of the future Internet Chapter of the ACTA. At that time the US delegation indicated that they had been working for some while on the chapter and had engaged in discussion with other Govt. agencies and with interested private stakeholders (not defined or named as these were bound by NDAs). The US delegation gave an oral presentation to the EU Trade group. It is now clear that discussions in Seoul have followed the inital oral advice and that the US drafted chapter appears to follow the provisions of the US Digital Millennium Copyright Act (DMCA)

ACTA requires that ACTA members (Government/member state signatories) have to provde for third-party liability; Safe-harbours for liability regarding ISPs to be based on Section 512 of the Digital Millennium Copyright Act and to benefit from safe-harbours, ISPs will need to put in place policies to deter unauthorised storage and transmission of IP infringing content (these might include making changes to customer contracts to allow a graduated response - ie, ‘3-strikes and you’re out’).

The European Parliament has now voted against the ‘3-strikes’ approach - there is development within the new Telecoms Package to be agreed between the European Council and the European Parliament. That is likely to reach consensus with provisions to allow a ‘3-strikes’ approach but perhaps subject to appeal or judicial oversight.

There is more amongst the discussion from Seoul. It would appear that rights owners will be able to initiate proceedings against intermediaries alleging that they have allowed their networks to be used for unlawful activities. European ISPs have long known that US based rights owners would like to see the European protection removed and brought into line with the US DMCA practice. In order to claim safe-harbour protection the European intermediaries would need to ensure that they, ‘put in place policies to deter unauthorized storage and transmission of IP infringing content.’ That is a wholly different approach to the current status, transferring the onus to the ISP. The EDRI newsletter notes, “European citizens should be concerned and indignant. As reported, the ACTA Internet provisions would also appear to be inconsistent with the EU eCommerce Directive and existing national law, as Joe McNamee, the European Affairs Coordinator of EDRi notes: “The Commission appears to be opening up ISPs to third party liability, even though the European Parliament has expressly said this mustn’t happen, ACTA looks likely to erode European citizens’ civil liberties.”

There has been real concern about the nature of the discussions - and the secrecy within which they have been conducted. The EU leaked paper noted, ‘As agreed among ACTA participants, the negotiating papers are not public documents’. The Washington Post noted that civil rights organisations had written to President Obama to complain about the lack of transparency.

The Washington Post article noted. ‘The groups, which include Public Knowledge and the Sunlight Foundation, wrote in a letter that the secrecy of the process – and on an issue that could have broad implications for Web users – could unfairly the benefit content providers that are most actively involved in the process.

“We applaud your promise of a more transparent, collaborative and participatory government,” the groups wrote. “However, multiple aspects of ACTA fail to meet these standards.”

The Swedish Presidency has published a note about the 6th round of negotiations. The Swedish note notes, ‘discussions at the meeting were productive and focused on enforcement of rights in the digital environment and criminal enforcement.’ The note continues, ‘Participants also discussed the importance of transparency including the availability of opportunities for stakeholders and the public in general to provide meaningful input into the negotiating process.’

The opportunity for the public to ‘provide meaningful input’ is important. The next stage of the ACTA negotiations will take place in Mexico in January 2010. With the Lisbon Treaty in full force from 1st December, the EU will represent all member states and any decisions accepted will be implemented for all. The current (Swedish) presidency of the European Union notes that ACTA hopes to reach agreement and implementation early in 2010 - there is not much time left before we might see major changes that will affect ISPs and other third parties. Where will be the opportunity for public consultation and input in this timescale?

Amendment 138 falls out into the Grand Place…….

For some time the European Commission and the European Parliament have been in discussion in relation to the development of a new Telecoms Package, a raft of new laws with the intention of revising and updating the regulatory control of the telecoms industry. Included within the package were updates to the Privacy and Electronic Communications Directive that would impact on the receipt of cookies (commonly used by advertisers and others) by a web browser.

But, the passage of the Telecoms Package was held up by the introduction of an amendment, Amendment 138 which aimed to control the move towards the ‘3 strikes and you’re out’ approach to the regulation of peer to peer file sharing.

The rights industry has been pushing hard for national governments to adopt the ‘3 strikes’ approach as a way of trying to contol the use of file sharing and unlawful copying of rights protected materials. The idea is that users identified as engaged in unlawful filesharing will receive a letter from their ISP to advise that the sharing is unlawful and (in pretty much most cases) in contravention of the ISP acceptable use policy. Experience suggests that the first letter had some effect in about 50% of cases. Many of those responded to confirm deletion of infringing materials and that they would not engage in any further file sharing. For those that continue, a second, stronger letter would be sent before a third letter and then disconnection of internet service.

It is the disconnection that is the problem. Many now consider access to broadband as a basic human right - alongside access to water, power etc. There was political support for the view, including from Mdme Reding, European Commissioner for Information Society. The problem was (is) that disconnection would take place without judicial review and potentially without the option for the accused user to defend their position and argue their innocence. When the Telecoms Package came before the European Parliament it was amended by Amendment 138 to require judicial intervention and oversight before disconnection.

The Amendment provided the clear requirement for a judicial role and in so doing acted as a brake on the proposals by certain European governments to press ahead with legislation to enable ‘3 strikes’. Before any disconnection could take place a rights owner would have to go before a judge and plead a case for disconnection of the user. And, of course, the user would have the opportunity to defend his position. In France, President Sarkozy promoted the ‘Hadopi’ legislation and in the UK, the Digital Britain report and the Business Secretary, Peter Mandelson, engaged in discussions to push ahead with a ‘3 strikes’ approach. It is notable that Peter Mandelson appears to have come out strongly in favour of ‘3 strikes’ since a weekend meeting with a leading producer.

For the European bureaucrats and politicians the groundswell of public support for Amendment 138 provided a problem. Whilst the Amendment was debated it held up progress on the whole Telecoms Package and with the imminent arrival of the Lisbon Treaty conference there was a political need for progression.

Now, at the last minute and just before the conference, there has been agreement in Brussels to accept a watered down version of the amendment Pressure from national governments that will allow them to introduce disconnection for persistent file sharers (and who else the Crusher wonders?).

Jérémie Zimmermann, spokesperson for La Quadrature du Net,(quoted on ISPreview) said: “Amendment 138 was in haste dissolved into useless legalese and soft consensus. The Parliament hurried to get rid of the safeguards of citizens’ freedoms because it knew that with the imminent coming into effect of the Lisbon treaty, both institutions will soon share the legislative power in the field of judicial affairs. And the bad excuses we have heard these past few days to justify to abandon amendment 138 will then be totally obsolete. In the end, the Parliament was not brave enough to stand against the Council to defend citizens’ freedoms.

Ministers of Member States, who want to be able to regulate the Net without interference from the judiciary, were rushing to kill amendment 138 and put an end to the negotiations. It is a shame that the Parliament’s delegation, and especially rapporteur Catherine Trautmann, was not determined enough to use the political context to assert its authority in the European lawmaking process in order to protect European citizens. Even though it has been an interesting and constructive discussion, amendment 138 has turned, by the lack of courage of the delegation, into the emblem of the powerlessness of the Parliament.”

So, in the face of political pressure to reach agreement before the meeting of Heads of State/Prime Ministers to conclude ratification of the Lisbon Treaty and the appointment of a new President of Europe, the Council has over-ridden the European Parliament (which had previously voted substantially in favour of Amendement 138) which has now accepted the reduced version limiting the rights of the citizen.

The way is now clear for those member states who wanted to introduce ‘3-strikes’ to do so. In the UK, Lord Mandelson has now announced actions to be taken against repeat piracy offenders and procedures will be included in the Digital Economy Bill expected to be included in the Queen’s Speech (18th November) with passage through Parliament before the end of the current session.

Lord Mandelson met with Internet industry representatives before the announcement was made. Mandelson asked the Internet industry to consider the proposed ‘3-strikes’ process in the context of the wider business economy (in iother words, consider the impact of filesharing on the revenues of the music industry) and to realise the importance of creativity. The Crusher understands that Lord Mandelson was fairly combative in his approach to the Internet industry but that the industry did make him aware of their concerns about proportionality, cost, options for alternative modes of contents delivery, due process etc.

The devil, as they say, will always be in the detail so it remains now to see how the Digital Economy Bill is drafted in order to see exactly how the ‘3-strikes’ approach will work in the UK. It would seem likely that the rights industry will contribute to the costs of the ISP in communicating with users and that there will be a likely lengthy process before any disconnection take place. It is likely that Ofcom will set up a dispute panel procedure to hear appeals from consumers targetted for disconnection and that Ofcom will collate information relating to the issue of notifications.

But - time is now running out for this Government. A full General Election must be held before June 2010 at the latest. As we are now clearly in the run up to the election and campaigning has been going on for some time, The Crusher wonders whether the Govt. will actually be able to progress the Digital Economy Bill to the Statute Book before dissolution.

The other matter, of course, is in Brussels. The actions there point to the ineffectiveness of the European Parliament. The elected representatives of the European citizenry are over-ruled and kicked into touch by member states acting in the European Council. The European Parliament has no ability to initiate legislation and can only comment and amend - it seems now that their ability to amend has been curtailed in the face of opposition from member states.

Joined up thinking?

The Parliamentary Internet Conference held at Portcullis House, House of Commons, on 15th October was an interesting day - not just an opportunity to hear Ed. Richards (CEO Ofcom), Martha Lane Fox, Stephen Timms and others but also the opportunity for the All Party Communications Group (apComms) to release its report into its inquiry, ‘Can we keep our hands off the net?’

apComms called for evidence and submissions over the summer (during the Parliamentary recess - a period that most people link with lack of work and extra long foreign holidays for our elected servants) and has now put together a report and a series of key recommendations. There are 11 recommendations on a wide range of topics, from Privacy to dealing with illegal (or ‘unlawful’ as the noble Lord, the Earl of Erroll corrected) file sharing, from behavioural advertising to eSafety tuition in schools.

But, The Crusher was rather taken with two recommendations that appear to be at opposite ends of an argument.

There has been much discussion about the likelihood of Government mandating the filtering of child abuse sexual imagery at the network level by ISPs. In 2007, Ministers set a target of 100% consumer broadband circuits to be filtered - so far that target has not been reached although there is suggestion that the proportion of consumer circuits that are now subject to filtering is in the mid to high 90s% range.

Recommendation 7 is that the Government does not legislate to enforce the deployment of blocking systems based on the IWF lists. This has the potential to damage future attempts to fix problems through self-regulation and will thus, in the long term be counterproductive.

The thinking here is that all major ISPs already block access to child abuse images and that any action to force others to take action will be counterproductive as it militates against attempts to find self-regulatory solutions to other problems.

OK, that is fairly clear although there may be some issue with the perception of the extent of current filtering practice. Whilst the number of consumer circuits with filtering in place may be in the mid to high 90% range, these may well be as a result of the actions of fewer than 10 large ISPs. The Crusher understands that the number of ISPs currently implementing child abuse filtering may well only be in the order of 20 to 30 - with some 270 plus mainly medium to small ISPs not currently implementing any form of network level filtering.

The report then goes on to consider the problem of malware infected machines. Now machines that are infected with malware makes them likely to become part of a large scale ‘botnet’ and potential distributed sources of junk email and denial of service attacks. The problem is that the infected machines are not on the ISP network and are machines owned and used by end users who may have greater or lesser understanding of the security implications or needs of always on broadband Internet connectivity.

Recommendation 10 is that there should be a voluntary code for ISPs relating to the detection of and effective dealing with, malware infected machines in the UK. If this voluntary approach fails to yield results in a timely manner, then Ofcom should unilaterally create and impose sich a code on the UK ISP industry.

The report notes that ISPs have systems in place to proactively filter incoming junk mail but do not take actions to filter outgoing junk. The report continues, ‘a reduction in compromised end user machines is essential to make the Internet a dafer place, so the ISPs need to act voluntarily as a group to improve the situation ….. if the ISPs cannot voluntarily agree to act, the report sees Ofcom as the appropriate regulator to impose a compulsory regime.

Interesting stuff. Filtering out material from infected machines will not be easy and will not be cheap - so additional development and application costs for the ISP (and, ultimately the end user). But, note the sting in the tail here - if self-regulation does not work then a compulsory regime should be imposed.

The Crusher sees some lack of joined up thinking here. On the one hand the report suggests that mandatory child sexual abuse imagery filtering should not be applied as it militates against self-regulation in other areas - and then recommends a compulsory regime for filtering the output of malware infected machines, albeit in the event of a failure of self-regulatory approaches.

The Crusher is intrigued: a self regulatory approach has seen pretty well all ISPs implement filtering to identify and remove incoming junk mail and virus infected items. For most that has been a commercial decision but there is undoubtedly a cost for the ISP. Self regulation is now being proposed to require ISPs to filter and remove outgoing junk and infected items. There may also be actions in relation to unlawful (thank you Merlin!) file sharing. But, the one thing that is illegal is to view child sexual abuse imagery (it is a Criminal offence under the Sexual Offences Act to view obscene images of children) - there is self-regulation but mandatory filtering is not recommended. Yet it is for dealing with malware - and as far as I am aware it is not yet a criminal offence to leave one’s Internet connected computer unsecured, without anti-virus or firewall protection.

The apComms group seems to have have worked on elements individually and with application of specific evidence - but the linkage of items from one part to another seems to have failed. Joined up thinking in the final output would have been helpful.

The full copy of the apComms report can be found here

The word of a Minister should not be taken as binding ……

It is clear that the word of a Minister should not be regarded as binding, perhaps merely an expression of the state of policy at the time that he (or she) opened their mouth but nothing more than that.

Back in April, the then Minister with responsibility for Intellectual Property, David Lammy, made it clear that the option to implement a ‘three strikes and you’re out’ policy for peer to peer filesharers had been dropped from Government plans incluyding the Digital Britain report. The Minister said that ‘cutting off users was not “the right road” for UK law makers’. David Lammy told ‘The Observer’ that, ‘”It is for the French to determine what is right for them, (referring to the Hadopi law) but for us here we do not believe that would be the right road to go down.”

Then, in June, came the publication of Stephen Carter’s Digital Britain report. This discussed the issue of perceived piracy and the problems of file sharing and suggested that Ofcom should be tasked with the setting up of technical measures to combat persistent filesharers including restricting access etc. At this time, Stephen Carter’s report reflected the thinking espoused by the Minister.

It is now a couple of months later and it would appear that Government policy has taken something of a ‘U’ turn. It would seem that this Government is for turning with the announcement of policy changes that would see Ministers given the power to order the cutting off of Internet access for identified file sharers.

Now this is a major step in a different direction and completely at odds with previous announced policy. Clearly a Minister’s word counts for little (did we really think that it did anyway?). An announcement by the Department for Business Innovation and Skills (Tuesday 25th August) suggests that thinking in relation to policy has now changed and there is a requirement for a faster process than previously discussed together with the addition of the option to cut off Internet access as part of the technical measures. The announcement says, ‘Accordingly a thorough examination of the proportionality and effectiveness of the measure (as with any of the other measures) would have to be undertaken before ISPs would be required to implement it, even if the decision to move to technical measures is taken. As ever we would need to ensure any such measure fully complied with both UK and EU legislation.’

Now this is where we get interesting. Any decision to cut off Internet access could remove access for entirely innocent parties - such as other members of a family using a circuit. The European Parliament and the Commission have made it clear that they view Internet access as an essential human right. Commissioner Redding responding to questions in Brussels said, “The fourth element I would like to underline is the recognition of the right to Internet access. The new rules recognise explicitly that Internet access is a fundamental right such as the freedom of expression and the freedom to access information. The rules therefore provide that any measures taken regarding access to, or use of, services and applications must respect the fundamental rights and freedoms of natural persons, including the right to privacy, freedom of expression and access to information and education as well as due process?”

Now that seems to have made the Commissioner’s view quite clear. Internet access is a fundamental right and any rules must respect fundamental rights and freedoms. Any action to restrict Internet access must be taken by a judge in a court procedure - at which the end user will be the defendant with the right to defend his position and any proposed actions. It cannot be that removal of access is the result of an order by a Secretary of State or by Ofcom without the right of the affected user to challenge the decision. At present, any evidence to suggest illegal activity seems to be based on the detection of an IP address by automated systems operated by or on behalf of rights owners. There are well publicised indications that systems may be open to abuse and that not all IP addresses may be users engaged in illegal activity. There may well be circumstances where the person carrying out infringing activity is doing so using an unsecured wireless connection without the knowledge or permission of the actual circuit owner. Yet, if evidence based on the detected IP address were to be used it would be the innocent user subject to cut-off rather than the actual perpetrator.

So, it appears to be European policy that Internet access is a fundamental right. That cannot be removed without due process - and the process suggested in the revised consultation would not appear to give sufficient safeguards for those not involved in the infringing activity. Any actions taken would seem to face the immediate possibility of a challenge under UK Human Rights legislation and then action in the European Courts.

There is another interesting facet to this new disclosure. A few weeks ago BIS announced consultation on the proposals of the Digital Britain report. The consultation paper was produced and a deadline set for responses. Now, the Dept. has announced that it wishes to change the consultation during the period set for stakeholders and others to respond and has suggested that an extended response period should now be allowed. To change the nature of the consultation after publication would seem to fly in direct contravention of the Government advice and code of practice for consultation.

‘The Crusher’ has to ask why this change has come about. The Government will deny that there is any relation between this announcement and a private dinner at which the Secretary of State, Lord Mandelson, met with US film mogul David Geffen. Geffen is known to have views on piracy and the effects of file sharing on the creative industries. It remains somewhat disconcerting that such a major policy change announcement comes just a few days after such a meeting. Coincidence or just bad planning?

Whatever the real reason this is a real policy blunder by the Government. It is almost certain that any actions to remove Internet access for alleged file-sharing, and by order of the Secretary of State or by Ofcom, would be seen to be highly disproportionate and likely to impact on he human rights of the end user and others. It would appear that the Government has now decided to announce policy changes in the midst of a consultation exercice - contrary to its own guidelines.

This is guaranteed to annoy large swathes of voters - and in the last few months running up to a general election that really is a rather silly thing to do. Perhaps this demonstrates the arrogance of the politicians responding to the views of a rich business interest over those of the electorate. That will be determined no later than June 2010.

However, all of this may be irrelevant - except for the verdict of the electorate on the conduct of this Government - with the imminent decision at the European Court of Justice in a case referred from the UK involving L’Oreal and eBay. The legal news site ‘Outlaw.com’ reports that this case may make any proposed actions by Ofcom irrelevant if it orders that a rights owner can bring an action to injunct an innocent party. The case centres around a possible injunction brought by L’Oreal against eBay to require that party to remove access to infringing materials. If the ECJ is in favour of L’Oreal then it is likely that a music rights owner would simply apply to the UK courts for an injunction against the ISP providing service to an end user. Any costs in defending their position would then fall on the ISP - I suspect that many would simply accept the injunction without the end user having any involvement.

Summer is passing by …..

After a period of quiet, summer seems to be passing by and the news is beginning to fill with other than the normal ’silly season’ stories. Parliament may still be in recess (will be for some while) and Ministers and others are well away from Westminster - where is the Prime Minister (Alastair Darling is stepping in in Gordon’s absence) and has he had to obtain a CRB clearance to engage in social projects…… umm!

But, work does go on for some and there are a few stories making the headlines.

Back in June, Stephen Carter published the final version of the Digital Britain report. That was much trumpeted and covered elsewhere - we chose to look at another digital report that appeared around the same time, or rather, the Digital Manifesto published by the Childrens Charities Coalition on Internet Safety. Now we have the arrival of the implementation plan for Digital Britain and we can see how the legislation is being planned in order to put into place the various recommendations.

The provisions of faster broadband and universal access have been much covered in the media. The reality is that faster access can only come through a fundamental change in the delivery infrastructure - and that means moving to direct fibre. The plans for a ‘digital tax’ (a levy of 50p per month on all fixed line telephone circuits) seems to have gone quiet……

Other areas have more direct impact on ISPs in the short term. The music industry has campaigned about the problems of piracy and the losses that it suffers as a result of peer to peer file sharing etc. There are more immediate pressures for changes in this area and we can now see that part of the implementation group has been tasked with:

Consultation on proposals to legislate to give Ofcom a duty aimed at reducing copyright infringement

Consultation on the trigger mechanism which needs to give both rights holders and ISPs strong incentives to make the notification system work

There have already been some agreements between ISPs and rights owners and these have resulted in letters being sent to users identified as uploaders of file share materials. This - an implementation of the ‘three strikes’ approach - provides for a step approach when a user is identified as being involved in peer to peer sharing. Practically, identification means users uploading (advertising) materials for download by others. However, the identification is somewhat fraught - there are well recognised possibilities of false seeding of IP addresses and other techniques to swamp rights owners search processes. There are also problems where users have unsecured networks (wireless routers) and are held liable for use by unauthorised users. It is not a legal requirement to secure a network - it may be negligent but that definition may be dependent on the user’s understanding and knowledge of their system.

It seems that the approach recommended by Digital Britain is for ISPs to adopt active packet shaping in order to restrict the performance experience of those identified as being persistent or regular peer to peer users. Whilst this may have an immediate attraction, the reality may well be that larger ISPs may have the capacity and the capability to make this happen - but that the smaller providers may not. Smaller providers may have just one, or perhaps a small number of central pipe connections which may make it difficult to route users to a particular ‘bad boys’ pipe. Some of the smaller users have made specific marketing decisions not to packet shape or to block traffic in order to differentiate themselves - there may be problems in implementing technical solutions which are not currently provided for within the network equipment.

There are other actions within the Digital Britain report to look at the funding structure of the Internet Watch Foundation - and to incorporate its work within pan-European approaches to child abuse content identification and blocking.

Of course, the summer period would not be summer without media scare stories. On Monday 17th August the Daily Telegraph reported that a file sharer had been ordered to pay damages and disbursements of £16,000 by the Patents County Court in London. The Telegraph went on to suggest that parents cold find themselves with substantial charges as a result of file sharing and downloading by their children. The case against the Internet user was brought forward after action on behalf of their client (a games producer) by solicitors Davenport Lyons. Davenports had persuaded the High Court to grant orders requiring ISPs to divulge details of users of particular IP addresses - ISPs will normally be reticent in any such disclosure for fear of contravening the data subjects rights under the Data Protection Act. Davenports had previously acted for a number of rights owners including Atari but this case does now seem to have gone further with a strong deterrent level of fine and disbursement applied.

Other media reports (Daily Mail) suggested that the Business Secretary, Lord Mandelson, had agreed to impose fines on those found to be abusing their Internet access. This story was rapidly denied, ‘A spokeswoman at the Department for Business Innovation and Skills (BIS) told The Register that it was “nonsense” to “speculate” that Mandelson would target teenagers who illegally download music and films.’

It is worth noting that fines can only be issued by a court after a hearing in which the accused has the right to submit a defence. Penalty charges may be applied in other circumstances but these are not ‘fines’. The Magistrates Association expressed concerns (19th August) that the police might ‘abuse’ proposals for new powers to award fixed penalty notices (comments strongly rejected [of course] by the police) - the thought passes our minds that Ofcom may be given powers to impose fixed penalty notices on end users accused of infringing copyright. The Magistrates Association made the comment that fixed penalties are fine for absolute offences but are problematic where there is a subjective interpretation involved. In the case of copyright infringement there may well be good defences - a hijacked network, use by other without the service owners consent or knowledge etc.

But all of the legislative changes to be implemented as part of the Digital Britain Bill are dependent on the
Bill receiving parliamentary time for debate and passage. It is in the Government draft legislative programme for the final session of this parliament - but an election is due by June 2010 (bring it on we say!) and there must be reservations over actual passage of large scale legislation before then.

It does still seem to be ’silly season’.

A week of Digital Reports ……

It has been a week of digital reports. On Tuesday the Digital Britain report was launched - introduced in the House of Commons at 15.30 and then a little later in the Lords. Lord Carter’s report has been much reported and commented elsewhere so the major points will be well known - particularly the proposal for a 50p per month levy (or tax!) on all landline telephone circuits to help to fund next generation networks and high speed broadband (fibre to the cabinet etc.) by 2017 and proposals for industry action agains file sharers.

But, as ever, the interesting bits are always in the details. Stephen Carter’s ‘Digital Britain’ report (you can download a copy here ) contains proposals for legislation to take actions against persistent file sharers. Here again is the three strikes route but there is recognition of the need for judicial review before termination - and there is also some recognition of potential for problems for the smaller ISPs.

But, in the media frenzy that accompanied Lord Carter’s report there seemed to be little attention paid to another digital report published this week, the ‘Digital Manifesto’ published by the Children’s Charities Coalition on Internet Safety. You can download a copy of the Digital Manifesto here. The Digital Manifesto, written by John Carr, Secretary of CHIS and Zoe Hilton of the NSPCC, is a new version of a document originally issued in 2004. Since that timere there have been substantial changes in the provision of high speed services and the availability of new types of content and service. It is apposite that the new Manifesto is now available, particularly in the run-up to the next General Election.

Of particular interest to those with an eye on the regulation of the Internet industry are the recommendations for action in the area of content blocking and filtering of access to child abuse content. Typically the sites containing abuse content are identified by the Internet Watch Foundation who are able to provide subscribing ISPs with a CSV blocklist.

The report suggests: “The Government should prepare a Bill that will compel all internet service providers based in the UK to adopt the Internet Watch Foundation list, or some other technical solution that blocks access to all known child abuse websites and newsgroups. The Bill should also detail or make provisions for a method by which compliance with this policy can be tested and publicly confirmed. If it becomes clear that some ISPs will refuse to implement a blocking solution unless compelled by law to do so, the Government should immediately put the Bill before Parliament.

In the meantime the Government should issue an instruction to all departments forbidding them from purchasing internet services from any ISP that does not deploy a solution that blocks access to all known child abuse websites. The Government should also encourage the remainder of the public sector to follow its lead. The Government should consider the use of tax or other incentives to encourage ISPs and other technology companies to develop and deploy new or speedier ways of tracking, blocking or destroying online child abuse images.

Some background is worth entering here. In 2006, the then Minister of State at the Home Office, Vernon Coaker, announced a Ministerial target for ISPs to introduce content filtering to block access to child abuse sites for all (ie 100%) of consumer broadband accounts by the end of 2007. This followed the trials conducted by BT with their ‘Cleanfeed’ system. It is estimated that now, in 2009, the implementation of content filtering is about 95% with predominantly consumer circuits filtered by the big 6 ISPs. There is now considerable pressure for action to be completed to close the remaining 5% gap - suggested as representing some 700,000 households.

There now appear to be some distinct groupings amongst ISPs. There is a group that have implemented filtering, there is a group that have fundamental philosophical objections to the process; there is a group that claim that they cannot afford the cost and there is a final group that will not take any action unless they are forced by legal mandate.

OK, the last group are clearly targeted by the Manifesto recommendations. The cost issue is a little more of a problem. The initial costs for large scale providers such as BT were not inconsiderable. Although costs have come down they remain potentially high for the smallest providers, particularly those who only have a few hundred, perhaps a thousand end user customers. For these the unit costs can be substantial and potentially more than the margin on circuits in the tight UK market. It is interesting to note a comment amongst the detail (the devil is always in the detail!) in the Manifesto (footnote 60 to be exact) with a suggestion that there should be central Government support for the smaller providers, perhaps included within the provisions of the upcoming Communications Data Bill. ‘The Crusher’ thinks that any such support would help those for whom the costs of filtering represent a disproportionately large element of overall provision and might be targeted at those with fewer than 1000 consumer connections.

‘The Crusher’ is aware of the pressure to close the gap. At the end of April ‘The Crusher’ had a meeting with a Home Office Minister who emphasised the Governments commitment to the 100% target and the need to see self-regulation deliver filtering across all consumer circuits within the next few months. If the self-regulatory model was to fail then there was clear indication that the Government would look to introduce mandatory legislation later in the year, perhaps in October. This would be likely to be seen as a non-contentious Bill that would attract cross-Party and media support.

The CCIS Digital Manifesto is a pointer for action by the ISP community. It is clear that the issue will not go away and that ISPs will need to take actions. There is now a European dimension to the issue with a proposal for a Framework Decision which includes, as Article 18, a clause requiring member states to introduce mandatory blocking of child abuse images.

The Manifesto recommendation that Govt. should include filtering as a requirement in public sector contracts is interesting - and would follow the inclusion of quality management and environmental management credentials. The forthcoming ISPA Awards will be interesting - and there may well be pressure on winners, particularly in consumer delivery categories to state and, if necessary, to justify their position in relation to the Govt. target and the Digital Manifesto recommendations.

In a week when we saw two digital reports, it may well be that the recommendations of the CCIS Digital Manifesto have a greater chance of becoming law.