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!

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.

In the run up to an election …..

We know that a General Election is coming in the UK. The current government is now in the last Parliamentary session before they must prorogue Parliament and send members back to their constituencies to seek re-election. The last date that the election can be held is June 2010 - that is the time when the 5 year maximum period runs out.

So, the Government must go to the country. The likelihood is that the election will be before the absolute last date, possibly on Thursday 6th May. This is the date already set-aside for district council elections in England so it would make sense for the General Election to be held on the same day.

Of course, the election may come sooner and The Crusher hears whispers that a date in March may already be in consideration.

The recent State Opening of Parliament (18th November) saw one of the shortest Queen’s Speech ever as plans for future legislation were cut back and cut back to the absolute minimum. Many expected measures were dropped in the rush to cut back to what the Govt. thought they might just be able to squeexe through before the election. Perhaps the headline piece was the Digital Economy Bill which has now received its Second Reading in the House of Lords. This rather contentious piece now passes to the committee stage which will not now take place until January. That is beginning to look mighty close to the election. The Crusher is minded to think that there may be very little of the contents of the Queen’s Speech that will actually make it all the way to the Statute Book.

But - as we now run up to the election, and the State Opening was perhaps the first and opening element of the election campaign, a look at something elsewhere in Europe. A General Election was held in Portugal on Sunday 26th September. Posters across the country exhorted the population to cast their vote. But one poster caught the eye of The Crusher - a large billboard alongside the main road leading to the airport just outside central Lisbon.

Now, clearly child protection is an issue in Portugal as it is here in the UK. Perhaps we are less likely to see campaigning here on this particular front. Translated, the poster reads:

“If you want to provide paedophiles with freedom, continue to vote as you would normally. For chemical castration of these criminals and to change Portugal, vote MMS.”

This particular party did not win the majority mandate - the election returned the previous centre-left government but with a reduced majority.

Somehow it seems unlikely that we will see this poster reproduced here in the run up to the General Election.

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.

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.

Digital Britain - awaiting the outcome ….

Just another week to go before Lord Stephen Carter publishes his Digital Britain report. And with a week to go the various interest groups are positioning themselves ahead of the launch.

There have been numerous ‘trails’ which may turn out to be more positioning than actualities. We won’t really know until the document is in the public domain.

But things that are likely……

There is a recognition that broadband services are an essential part of modern life (recognised in a survey commissioned by Ofcom), as essential as water, gas and electricity. So broadband becomes the 4th service (do I recall the AA advertising themselves as the 4th emergency service?).

Broadband service providers (essentially that means BT) are to be encouraged to ensure a minimum level of service at 2Mbit. Easier said than done and will require some changes to the means of provision. Ofcom has today (11th June) removed the restrictions that prevented Openreach from operating electronic equipment within the network. This removal will pave the way for Openreach to operate fibre to the cabinet and direct ethernet to end users.

Ofcom recognise that there remains a significant group of internet Not users - typically older generation. They estimate that 20% of this group will sign up to broadband services if the cost and service is right. That might have to include some form of top-up education. Of course, 20% takeup leaves a remaining 80% of the group who do not see the need or do not want Internet access. Increasing takeup amongst this group will be difficult.

There have been moves from rights owners to suggest the introduction of a ‘three strikes and you’re out’ policy. With the recognition that broadband is now an essential service this is unlikely to be approved by Lord Carter - indeed, other Government Ministers have made it clear that the Government will not force ISPs to block access. There will have to be other ways found. Those might include some form of packet shaping to reduce the performance of the sharers - but not all ISPs will be in a position to do this. Certainly the smaller ISPs will find this difficult and will not have the flexibility of multiple central pipes to transfer heavy users to a specific ‘bad boys’ pipe.

So we wait. 16th June will be an interesting day.

French farce

A few postings ago we reported on the vote in the French Senate that introduced the ‘Hadopi’ law, providing for the 3-strikes and you’re out principle to be adopted by rights owners seeking the disconnection of persistent file sharers. After the initial vote in a sparsely attended house, the law passed on to the National Assembly where a rather larger house voted it down. Now it seems that the French authorities have adopted the European approach - if at first you don’t get the result you want, ask them to vote again until they give the right result!

The law was returned to the National Assembly for another attempt and this time it seems that there was a rather fuller attendance. Perhaps some ‘persuassion’ by the French equivalent of the Whips? There is clear intention by the French Government to push the law through and in advance of voting in the European Parliament on the Telecom Reform package.

A large number of amendments to the Bill made it impossible to proceed through the voting process by 5th May and the Bill must now return for further debate. It is seen as likely that this will be by mid-May so it is quite possible that President Sarkozy will see the new legislation in force by the end of the month. This will allow the setting up of a new agency (the HADOPI) which will deal with copyright infringement notices submitted by rights owners and will decide whether to warn or to disconnect users and place them on a list of blocked persons.

Quite clearly this will not be a popular piece of legislation. Civil rights campaigners will be campaigning and asserting that the law will be an infringement of the rights of the citizen. But the campaigners will have some powerful allies. MEPs voting in the European Parliament in Brussels and Strasbourg have indicated that they view internet access as a fundamental service and have voted down 3-strikes approaches.

When the Telecom Package came up for 2nd reading in the European Parliament, MEPs voted 407 to 57 for initial amendment 138 rejecting the Trautman report and reverting to the initial text which provided that only judicial authorities would be able to make decisions on cutting off users. The reversion to judicial authorities means that users accused of infringement would be able to submit a defence and to appeal any decision. It would seem that the HADOPI proposed in France would not be accepted as a judicial body and would not be acceptable under the European package.

Going further, it is interesting to read comments by Commissioner Redding responding to questions in Brussels: “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 makes the Commissioners view quite clear. Internet access is a fundamental right and any rules must respect fundamental rights and freedoms. That will make it difficult to impose any 3-strikes approach without their being a judicial process. Even then, there must be compelling reason to act - and, I suspect, copyright infringment will not be there as the most compelling reason. Perhaps use of the internet to download paedophilic content might be there.

So, how will this impact on the UK. There is discussion in Govt. and we are awaiting the final version of Stephen Carter’s ‘Digital Britain’ report. Trails suggest that that may include details of a Digital Rights Agency - amongst other things. The report is now unlikely to arrive before mid-June - it will not be published in the run-up to local and European elections at the beginning of June - and will probably be after voting in the European Parliament. Any agency that is then set up will have to accommodate the European Telecoms Package - so we are unlikely to see any 3-strikes here. Unlikely anyway as Govt. Ministers have now indicated that this is not favoured by Govt.