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.