Wednesday 10 November 2010

Government: the DEA can't be used for disconnection

Today’s big news about the Digital Economy Act is that TalkTalk have been granted permission to apply for judicial review of some of its provisions. For those unfamiliar with the process, judicial review requires two stages: first permission to apply and then the review itself. The grounds of review are varied and complex. For the legal geek the statement of facts and grounds [PDF] makes interesting reading.

What has not been discussed widely so far is the government's response to the don't disconnect us petition on the Number 10 petitions website, which includes the following statement:

“ The Digital Economy Act includes a number of measures to tackle the problem and we expect these to be successful in significantly reducing online copyright infringement. However this is an area of rapid technological change and developing consumer behaviour. The Act therefore includes a reserve power to introduce further “technical” measures if the initial measures do not succeed. These technical measures would limit or restrict an infringers’ access to the internet. They do not include disconnection.”

Are the government right? Section 124G(3) of the Communications Act 2003 (introduced by section 9 of the Digital Economy Act 2010) defines a ”technical measure“ to be one of four things:

(3)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.

Clearly (a), (b) and (d) can be used for various kinds of blocking or throttling and certainly not for disconnecting a subscriber. It is (c) that is the interesting provision. The word “suspend” carries with it a strong implication of transience and not permanence. A natural reading of section 124G does appear to mean that a subscriber cannot be disconnected permanently from access to the internet and to that extent the government appear to be right.

It is unclear whether (if ever) the Number 10 petitions site actually produces useful results or a change in policy. Certainly the usual response is very much along the lines of “your petition has been noted and filed and now we will ignore it”. Here the government's response relies on an overly literal reading of the petitions title. The intent was clearly to protest at the possible removal of access to the internet whether temporarily or permanently. Six months without internet access could be a serious outcome for some.

Of course the act has been so worded that technical measures are directed at a particular service provider. The “evil pirates” will simply sail over to a new service provider well in advance of any supsension of their serve. Such a transfer could even be provided by a service provider for the benefit of their customers (perhaps automatically?). It is those on long fixed term contracts with their ISP's who will may actually suffer. Quite possibly (though I have no statistics on this) those most innocent of the way the internet works.

One positive outcome of the petitions is that, if at a later stage the government try to introduce legislation that does permit permanent disconnection, we will certainly remind them of their response.


Anonymous said...

Clearly (a), (b) and (d) can be used for various kinds of blocking or throttling and certainly not for disconnecting a subscriber

Is it being too literal to suggest that (a) could be used to limit the speed of the service to 0kbps?

Francis Davey said...

I doubt a court would read (a) in that way. If the speed were "limited" to zero, then there wouldn't really be a "service provided to a subscriber" left. I'd be confident that any court would read (a) as implying that some service should still remain.

chris edwards said...

1Kb/s ?

Dialup speed ?

andyse said...

"It is those on long fixed term contracts with their ISP's who will may actually suffer" - well, except that surely the ISP is not performing under the contract if they are not providing access. If the legislation is going to allow suspension of service then surely the long-term contracts shouldn't be an issue as by suspending services the ISP has itself breached them by failing to provide the service for which they charge? Otherwise it's as daft as TfL charging full fares on a given route on days when they aren't running any services on that route. Admittedly, that does happen (and apparently unless you can afford the Oxfordshire-sized mortgage needed to buy a season ticket, you can't do anything at all about it), but just because the law allows citizens to be, err, ripped off by one type of service provider surely that does not provide the justification for an equally inequitable rip-off from a different type of service provider.