Thursday, 10 December 2009

Government wants new powers to block wikileaks and squeeze web tv

Just over a week ago I wrote a fairly dry legal analysis of the Digital Economy Bill. I spotted an extremely serious provision — clause 11 — in the version being discussed in the House of Lords. Having looked at the amendments (which you can find on the Bill's document page) I am worried that no-one in Parliament appears to be taking the problem seriously.

What is the problem with clause 11 that I am getting so alarmed about it? It amends the Communications Act 2003 to insert a new section 124H which would, if passed, give sweeping powers to the Secretary of State. It begins:

(1) The Secretary of State may at any time by order impose a technical obligation on internet service providers if the Secretary of State considers it appropriate in view of—

Pausing there. Note that this says nothing at all about copyright infringement. For example the power could be used to:

  • order ISP's to block any web page found on the Internet Watch Foundation's list
  • block specific undesireable sites (such as wikileaks)
  • block specific kinds of traffic or protocols, such as any form of peer-to-peer
  • throttle the bandwidth for particular kinds of serivce or to or from particular websites.
In short, pretty much anything.

I do not exagerrate. The definition of a "technical obligation" and "technical measure" are inserted by clause 10:

A "technical obligation", in relation to an internet service provider, is an obligation for the provider to take a technical measure against particular subscribers to its service.
A "technical measure" is a measure that— (a) limits the speed or other capacity of the service provided to a subscriber; (b) prevents a subscriber from using the service to gain access to particular material, or limits such use; (c) suspends the service provided to a subscriber; or (d) limits the service provided to a subscriber in another way.
As you can see blocking wikileaks is simply a matter of applying a technical measure against all subscribers of any ISP.

Surely something must limit this power you ask? It seems not. The Secretary of State may make an order if "he considers it appropriate" in view of:

(a) an assessment carried out or steps taken by OFCOM under section 124G; or (b) any other consideration.
Where "any other consideration" could be anything. To their credit the Tories do seem to have realised that this particular alternative is overly permissive. Lord Howard of Rising and Lord de Mauley have proposed (in the first tranche of amendments proposed that the "or" be replaced by an "and".

What astonishes me is that there is no obligation for the Secretary of STate to even publish such an order, let alone subject it to the scrutiny of Parliament, yet he could fundamentally change the way the internet operates using it. Other orders made under other parts of the Bill will have to be made by statutory instrument and most will require Parliamentary approval. Not this one.

The only other amendment that has so far been tabled that might restrict the powers of the Secretary of State under clause 11 appears in a third tranche proposed by the liberal democrat Baroness Miller of Chilthorne Domer which deletes the paragraph (b) from the definition of a technical measure (i.e. "limits the service provided to a subscriber in another way") which does put some bounds, although not very tight bounds on what an imaginative Secretary of State might do.

The government is not at all imaginative. In their explanatory notes they envisage:

The government envisages that the criteria for taking a technical measure against a particular subscriber would be the same as the criteria used to determine whether the subscriber' s alleged infringements are included in a copyright infringement list under the initial obligations. So a technical measure would be applied if a subscriber had been linked to a number of CIRs sufficient to place them on a serious infringers list.
Note very well: they expect to use the power against the guilty and the innocent (of copyright infringement) equally.

The problem, I think, is that people are skim-reading the Bill and thinking that this part has to do with copyright infringement. Clause 11 is nestled between provisions about notifications of copyright infringement (the "strikes" idea) and the technical obligations code. People seem to be assuming that the Clause 11 power will only get used in that context but there is nothing in the Bill to make that so. As fellow blogger Julian Todd pointed out the government froze the funds in the Landsbanki bank using powers contained in the Anti-terrorism, Crime and Security Act 2001. A future government might well think "that's a useful power" and use it for almost anything. Let us hope that the Lords wake up to this fast. I have much less hope of the Commons.

11 comments:

Anonymous said...

Wouldn't the 'particular subscribers' be a limiting factor in the case of blocking sites like wikileaks. I would've thought even the most technically illiterate judge would see blocking everyone's access to a site as not being 'particular subscribers'.

Graham Simpson said...

Oh you have GOT to be kidding me.

Anonymous said...

'I am worried that no-one in Parliament appears to be taking the problem seriously'

Benjamin Wright said...

Information technology (Internet, email records, wikileaks.com) is imposing radical transparency on all publicly accountable organizations, be they scientific units (University of East Anglia), county governments in South Carolina, or in the case above, the Secretary of State.

Stephen said...

I agree with the above anonymous commentator above, the use of serious as an adverb in the lede stands out particularly stark and bad. See what I did there.

I think the power is just too strong for the wrong it's supposed to remedy. The best way to remedy copyright breaches suffered by private companies surely can't be to give the executive blanket practically arbitrary disconnection / blocking controls over the the entire UK.

Anonymous said...

Stephen
Don't be so sure that serious actually means what you or I think it to mean or that it has any resemblance to the dictionary definition.
The anti terrorist legislation allows for a search when an officer has serious suspicions, see; http://www.guardian.co.uk/uk/2009/dec/11/snapshot-special-branch-terror-suspect

found this article from tweet by glynwintle
http://twitter.com/glynwintle/status/6564230197

Tim Green said...

I worry that this is simply a ruse to cause anger about this one clause, distracting concerns over the rest of the bill.

Don't take the removal of this provision as a victory.

richardacre said...

@Anon the clue is buried in the "Technical Measures" definition : "c) Suspends the service provided to a subscriber".

So the SoS can order the ISP to suspend the wikileaks service

Anonymous said...

Nice one Francis! Found this via http://www.out-law.com//default.aspx?page=10613

Steve Harris

Scott said...

Good analysis. Must confess I like others had missed this point. As is, this is as bad as clause 17, as an open invitation to future governments to 'control'.

Martin Budden said...

I'm also concerned at the lack of scrutiny this bill is receiving. The alarming provision you mention was present in the consultation document. As I said in my blogpost: http://martinbudden.wordpress.com/2009/08/26/illicit-p2p-file-sharing-and-the-law/

"...Once a minister has this power, who’s to say their judgment won’t be biased by, say, the fact that the accused has a blog that is critical of the government.

Mandelson seems to want to create a Judge Dredd for the internet. And the most frightening thing is that, with the current cabinet, he would be Judge Dredd."

See also my response to "Consultation on Legislation to Address Illicit P2P File-Sharing": http://martinbudden.wordpress.com/2009/08/15/consultation-on-legislation-to-address-illicit-p2p-file-sharing-my-response/