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been progressing through discussion in the House of Lords with a succession of amendments being laid before the House, withdrawn or incorporated.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.