Digital Economy Bill: have I got this right?

Mar 27, 2010

As anyone with an awareness of politics or technology issues will be aware, the British government has recently been attempting to pass the Digital Economy Bill. This is a wide-ranging piece of legislation, covering issues from digital radio to copyright infringement on the internet and much more besides. As the legislation has evolved, it has acquired - apparently at the behest of the government in the form of Lord Mandelson - greater powers to punish those accused of copyright infringement, and this is where the current controversy lies.

Now, first of all it should be pointed out that there are differing views on copyright itself. At the extremes lie the views that copyright is essentially wrong, as it prevents the totally free flow of ideas, and correspondingly the view that copyright should be absolute, giving the owner of a copyrighted work considerable powers to enforce their control over those works. In the middle, most of us accept that copyright provides a useful incentive to people to create things, by granting them a temporary monopoly on their creations, enabling them to profit from the sale of licensed copies of their work, but also believe that this needs to be balanced by rights of ‘fair use’, allowing others to share, remix and discuss these works in freedom.

The government, it is fair to say, have shown themselves to be on the side of the rights-owners, those who wish to maintain or extend their powers to enforce control over copyrighted works. The Digital Economy Bill provides new powers for rights-owners to seek the blocking of websites which they accuse of facilitating the sharing of copyrighted works, and to seek “technical measures” against individuals they accuse of sharing copyrighted works.

At this point, your views on the matter may diverge based on how much you know about the technology. As a self-confessed geek, I have to admit to knowing quite a lot, which gives me grave doubts about the feasibility of blocking websites or employing “technical measures” against individuals. Importantly, it is often hard to block websites in isolation. Many sites exist on “shared hosting” accounts, which mean that if one website on a particular server is being blocked, other - perfectly innocent - sites on the same server might get blocked too. This means that hosting providers - the people who operate the network infrastructure - have to be super-cautious about any threat of web blocking, because there is a risk that their customers may end up as collateral damage. This means that hosting providers often act on the mere threat of web blocking, simply taking down websites that are alleged to contain infringing content on the basis of nothing more than a solicitor’s letter. By creating a further threat, of state-enforced web blocking, the power shifts further away from individuals running websites and towards those who wish to threaten them. The Liberal Democrats (full disclosure: I’m a paid-up member) and Conservatives jointly acted to specify a proper, legal process for this in an amendment to the Bill; whilst an improvement over the government’s original proposals, it still leaves site operators under threat of site blocking. After a resolution at the party conference, Liberal Democrat Lords attempted to introduce a new, better amendment, but for reasons that I do not fully understand, this amendment was not adopted in the Lords. What we now have was better than the government’s original proposals, but still not good enough.

On the second point, “technical measures” against individuals, the situation is even less clear. “Technical measures” relates to the use of “throttling” to limit the amount of data that can be transferred over an internet connection, effectively degrading the service to the point of unusability and, if that is not judged to have had an effect, enforced disconnection from the internet can follow. This is an even more serious problem than web blocking, because it is almost guaranteed to create collateral damage. If one member of a household is accused of sharing copyrighted works, the rest of the household can be made to suffer for it. There is a good case to believe that this is a violation of natural justice and will, I imagine, end up being challenged on Human Rights grounds. The Open Rights Group (full disclsoure: I’m a paid-up member) has done great work in campaigning against this part of the Bill (and others!), and that campaign is rapidly approaching its moment of truth: the Bill is due to be voted on on April 6th and, at present, “technical measures” are still very much part of the Bill.

Matters are further complicated by the Labour government’s abuse of Parliamentary procedure. They are attempting to pass this legislation with the barest minimum of debate in the House of Commons; the Bill will pass without a committee or report stage and will be made law as part of the 'wash-up’ process that exists to fast-track pending legislation once a general election has been called. Given that this is not an emergency bill, and that there still exists substantial disagreement over its contents, this can fairly be called abuse of the procedure.

However, it’s important not to let the unusual circumstances obscure the Parliamentary reality: Labour have a considerable majority and the Conservatives are sympathetic to the Bill - it would have passed even if it had been debated for months. The Iraq War, ID cards, 28-days detention, Control Orders, the exemption of MPs expenses from the Freedom of Information Act, the one-sided Extradition Act, the DNA database, the Legislative and Regulatory Reform Act, restriction of trial by jury and countless other smaller but no less pernicious pieces of government business have been passed by sheer weight of Labour’s numbers, often with Conservative support or sympathy. The Liberal Democrats have voted against all of these, but this has never succeeded in preventing the legislation, on the simple basis that Liberal Democrat MPs comprise fewer than 10% of the total in the Commons (despite receiving 22% of the vote at the last General Election). In some cases, Lib Dem amendments have succeeded in taking some of the sharp edges off Labour’s legislative flails, and when Labour’s back benches have remembered their consciences it has been possible to defeat the government - on a grand total of six occasions in the last five years.

But does that mean that the Lib Dems are doing enough? Well, I’m not sure. Certainly the Lib Dems have taken the most sensible position of the three main parties, opposing web blocking and disconnection. At this point, I’m getting mixed messages about how effective that opposition has been; Don Foster MP says that for people to be forcibly disconnected from the internet, further legislation will be required in the next Parliament and that the Lib Dems will oppose it when it comes up; Jim Killock of ORG says that this isn’t good enough, as it will likely be passed when it does. He is probably right, given that the legislation will take the form of “Statutory Instruments”, which are normally approved with little scrutiny. This is a favourite trick of Labour’s - pass the uncontroversial bits when everyone is paying attention, but give the Secretary of State (Mandelson, in this case) the power to add the worst bits back in via SIs when nobody’s paying much attention. Jim wants to avoid things getting to that stage and seems to be hoping that moral pressure from the Lib Dems might persuade the government to drop the whole idea. However, given the previous record (enumerated above), I somehow doubt that this will work. A better hope is that Mandelson might not be around in a year’s time and if the election is as close as the polls currently predict, the Lib Dems might end up holding the balance of power, a much stronger position from which to block the disconnection powers from coming into use.

In any case, pressure from the Lib Dems looks like our best hope right now and we should certainly be pursuing it, along with a vigorous campaign by ORG members and supporters. With the General Election bearing down on us, it might just be possible to spook enough Labour backbenchers into pressuring their own side into dropping the worst parts of the Digital Economy Bill before it passes into law. A cynic might remark that if two million people marching didn’t stop the Iraq war, the few hundred of us outside Parliament a few days ago is unlike to stop this Bill, but that’s no reason to give up on campaigning.

My question is: have I got this right? Is there more to this than I’ve realised, and is there some nuance of Parliamentary procedure which actually makes the actions of the Lib Dems more important than I’ve realised? Is there more that we can do?