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.

Database right: proving infringement

A recent decision in the Patents County Court — Beechwood House Publishing v Guardian Products [2010] EWPCC 12 concerns the database right. We haven't seen very many database right cases, so I thought it was worth a short comment.

The claimant, who I shall call by their trading name "Binley's" maintain and sell a database of the names and addresses of people associated with GP practices (such as doctors and nurses) which is then sold to companies that wish to use the addresses for direct marketing. It costs, according to Binley's, roughly £110,000 a year to keep the database up to date.

In order to detect any infringement of their database right, Binley's include in their database a number of what they call "seeds". These are bogus entries, giving the address of Binley's staff. When any post is received addressed to a seed address, Binley's can then presumably check the source against their list of clients to check that the marketing comes from someone authorised to use their database.

In about August 2007 Binley's received a letter addressed to a seed. The letter was from Guardian Products (the first defendant) who had obtained their mailing database from the second defendant (Precision Direct Marketing Ltd) who had in turn obtain it from an organisation called Bespoke Database Organisation Ltd (or BDOL for short). Quite why BDOL were not also defendants is unclear. Perhaps they had already reached a settlement with Binley's but we do not know. But it was accepted that BDOL's database contained the offending seed.

Binley's sued the defendants for infringement of their database right. Presumably on the ground that the defendants must have "extracted" — which means (in English law at least) "the permanent or temporary transfer of [the contents of the database] ... to another medium by any means or in any form" (see regulation 12 of the Copyright and Rights in Databases Regulations 1997).

One assumes that Binley's felt their case was pretty strong, so they made an application for summary judgment. A summary judgment application is not a trial, to succeed Binley's needed to persuade the judge that the defendants had "no real prospect" of defending the claim.

On this point Binley's failed. The problem was, from the judge's point of view, that all the evidence he had was:

• Binley's database contained one or more seeds
• One of those seeds had turned up in BDOL's database

Clearly this was evidence of some copying, but extraction from a database is only unlawful if the extraction is all or a substantial part of the contents of the database (see regulation 16). It might seem highly improbable that the offending seed was the only item copied. Indeed the judge thought that it was "highly probable" the there had been the extraction of a substantial part, that that was not enough to grant summary judgment.

Binley's had not given evidence of the proportion of seeds in their database. Its evidence was there were "a few" but Binley's had refused to give a more precise figure, possibly for commercial reasons. If they had, that might have allowed some assessment of the degree of extraction and therefore whether it was not substantial.

Summary judgment was refused.

What is interesting about this case is that it may be very difficult in practice to prove merely by examining a database's contents that it has been copied from another, especially where the data is relatively regular and commonplace such as names and addresses, without recourse to seeds or some other form of watermarking. The more seeds or watermarking, the easier the task, but at the cost of poisoning the database owner's product with irrelevant or false information.

In some cases other evidence will be available that demonstrates extraction, but here the first defendant appears to have had no direct knowledge of how its database had been created (since it originated in BDOL). In such a situation a database owner may have difficulty proving that the extraction of a substantial part has taken place.

Note that a decision of the Patents County Court sets no precedent. Its value is merely illustrative, but I feel it is interesting nonetheless.

Absence

My apologies for the long absence from blogging. I have been unable to do so for personal reasons, but I hope to resume in the near future.

ACTA is out

A draft (in PDF form) of ACTA, the Anti-Counterfeiting Trade Agreement, has been released by the European Commission. This is the first time any of us have been allowed "officially" to see a draft of the treaty as hitherto negotiations have been conducted in secret. As governments often remind us — if you have done nothing wrong you have nothing to hide — why the secrecy?

Inspired by leaked versions, the treaty has excited much opposition. For example from La Quadrature du Net, the EFF and many others. Michael Geist gives a very thorough analysis on his blog site for those inclined to dig deeper.

If you read the draft you will see that it is marked up with numerous possibilities, indicating differences of opinion between the national delegations. The draft coyly avoids telling us which those delegations might be, but a recently leaked draft may give a clue. I am fairly confident that an analysis of the various parties positions can be crowd-sourced so that we all know where to apply pressure.

This multiple choice nature of the draft makes it hard to analyse whether it is really good or bad or indeed what effect it will have at all. This is particularly so where there are two possible drafts: one stating what parties to the treaty "may" do (which means they need not) or "must" do (which means they certainly will). For example Article 2.2(2) on damages.

I leave a thorough analysis to others who have rather more time than I do, but a couple of points strike me as being of particular interest to the digital/internet environment:

Damages

The normal rule in English civil proceedings is that the damages are compensatory and intend to put you back in the position you would have been if the defendant had done no wrong (or not breached a contract or whatever). In some circumstances a claimant might be able to force a defendant to disgorge any gain they have made without a good lawful reason, or even to pay over any profits they have made as a result of their actions.

In the world of intellectual property this limitation does not operate. Many jurisdictions allow more compensation on top. For example s97(2) of the Copyright Designs and Patents Act 1988, a court may award "such additional damages as the justice of the case may require", having particular regard not only to any benefit gained by the defendant but also to the "flagrancy" of the infringement. In the United States 17 USC 504 allows a copyright owner, where they have registered their copyright, to elect to receive "statutory damages" rather than actual damages and profits, at a minimum of $750 (but up to $30,000) per work infringed. The ludicrous effect of such damages is well known.

ACTA's proposed article 2.2(2) proves that the parties may or shall (which to be later determined) maintain a system of pre-established damages much like that of the US, as well as presumptions for determining the amount of damages. Such a presumption might be that the damages suffered for copying N works each of which would have made (if sold) a profit of p would be Np. Such a sum would almost always be more (probably much more) than the actual loss. There may (or shall) also be a provision for "additional damages".

It is quite possible that rights industries could make more money this way than they would if there were no infringement which would be a surprising outcome in any other field of law.

Criminal liability

Copyright infringement may be a criminal offence in the UK in essentially two circumstances: first where it is done in the course of business and second where it is done "to such an extent as to affect prejudicially the owner of the copyright" (I am simplifying this somewhat). Article 2.14 of ACTA suggests there should be criminal liability for infringement on a commercial scale, which is defined to include "significant wilful". I am unclear on what "wilful" means (perhaps readers can help) but that looks to me to increase the range of criminal liability.

Online infringement

The headline part of ACTA for me ought to be section 4 which concerns enforcement "in the digital environment". With the passage of the Digital Economy Act 2010 it may be we have seen the last of new attempts to legislate in this field in the UK for a few years. It may be that ACTA makes little difference to us except to provide the government of the day with political cover to push things a little further.

Article 2.18 requires that parties make available enforcement procedures that include "expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement". So to protect and deter. The detail that results from this general requirement could be almost anything because the draft includes two main options, and many sub-options, that range from a less intrusive system of copyright control than we have in the UK to a system that goes much further. I find it difficult to give any kind of useful summary — if such a thing is even possible.

There are options to protect intermediate service providers though these may be predicated on the provider either taking proactive steps to prevent infringement (but not including monitoring) or responding properly to requests to block/take-down material or both. There are also provisions that may require legal protection of effective technological measures, though to what extent they will go further than those already imposed on us is unclear.

Conclusion

There's an awful lot more in there. I look forward to reading a wider analysis and to seeing what response the various campaigning organisations now adopt. Overall the treaty seems to be a mixture of unnecessary repetition of existing treaty arrangements (such as TRIPS or WCT) and overly draconian provisions. In my view the best outcome would be for the treaty to be abandoned, but I realise that is unlikely, so it might be time to focus more on the detail.

New amendment gives copyright owners a blank cheque for web censorship

Imagine that, in the Summer of last year, you had been following the MP's expenses scandal and heard that The Telegraph was publishing a rather less redacted version that MP's were prepared to give us. Interested, you navigated your way to www.telegraph.co.uk only to find it was not responding. After some searching around and asking friends you discover that the website has been blocked by most major UK ISP's. It seems a junior official in Parliament had asked them to block The Telegraph for copyright violation.

Just this could happen as a result of amendment 120A to the Digital Economy Bill that was passed yesterday in the House of Lords. Being strictly accurate (and I am a stickler for accuracy) I don't think that Parliament going after The Telegraph is likely any time soon for reasons I will explain at the end of this post, but the reasons for that are political not legal and that should worry all of us.

Why?

What is this all about? The copyright industry (which I will call "the BPI" for short) would like a way to make ISP's block internet access to servers that are involved in wholesale copyright violation. Trying to go after the owners of the servers is difficult, either because they are convicted criminals or because they are a mega corporation that will thumb their noses at the BPI and fight tooth and nail against any effort to take them down. How much easier to get ISP's to do the job.

I believe (and I think most copyright lawyers agree with me) that the courts could be persuaded to develop a general form of order requiring an ISP to block access to unlawful content. They have already done this with so-called "Norwich Pharamcal" orders that are used to ask innocent third parties (like ISP's) to divulge the names of the guilty. If there was any doubt, section 97A of the Copyright Designs and Patents Act 1988 makes it quite clear that the courts have the power to do this.

What seems to be bugging the BPI is that a court order costs money and they (the BPI) will have to pay for it. What they want is to be able to get the orders they want for free, or rather at someone else's expense. Amendment 120A does the job. The killer bit is this wording:

(4) Where—
(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.

ISPs will feel forced to block on request

What this means is that a copyright owner can send a notice to an ISP asking them to block access to a website. The ISP has a choice: either they block the site, or they wait to see if a court will make an order to block it. If they wait, they pay the costs. There's going to be a really strong temptation just to block without asking any questions, rather than go to court and risk what will amount to a fine.

Its much worse than that. The written request doesn't need to explain why the website should be blocked. It can just be a bald instruction "block this site", or perhaps a list of websites to block like that supplied by the Internet Watch Foundation>. The ISP won't find it easy to "ask questions" because it will have nothing to work with. There is also nothing to stop the BPI sending huge numbers of requests, swamping the ISP so that a conscientious ISP that does not want to blindly block everything will find it prohibitively expensive to do so.

Furthermore, the website won't usually be run by anyone with a contractual relationship with the ISP. This is not a "block your customers" type of order but a "block someone on the internet" one. The ISP won't have any customer relations incentive not to block, nor will they have any way (in general) of recovering their costs from the website owner.

In most cases the only safe way for an ISP to proceed will be to just block everything they are told to block. What is to stop the BPI routinely requesting a block whenever there is anything they vaguely dislike? Nothing. There is no penalty for sending an unjustified written requests. The request does not have to say that anything in particular is wrong, its just a request after all. If I were the BPI I'd just churn these out wholesale and cherry pick which to actually enforce, relying on the spread of fear, uncertainty and doubt to get my own way.

No redress for the innocent

What about website owners? There's no requirement in the amendment to tell the owner of the website that a request has been made to an ISP. The owner/operater will usually first find out they have been blocked by the ISP after it has happened. Aside from persuading all ISP's in the UK to unblock you (perhaps by promising to pay their costs if they eventually are ordered to block) there is nothing you can do about it. There won't have been a court order, so there's no appeal.

Even if you, as a website owner, hear about the request from some well-meaning ISP, you may not know what it is exactly that you are accused of. Like Joseph K's legal team in The Trial you will have to deduce what you are charged with doing. How anyone can think that is fair or reasonable defeats me.

If an ISP is persuaded to resist a request to block your site and you then intervene in subsequent court proceedings brought by the BPI, the case could go on a long time — copyright cases can be quite complicated. Maybe there are important issues of law at stake that will take the matter to the Supreme Court and back. The result an enormous costs bill. Who will have to foot it if you lose? Ordinarily, the ISP. You can see why an ISP is going to require a lot of persuading not to just roll over and do what its told.

The court will be bypassed

The amendment is stuffed full with good intentions. There's a whole list of things a court would have to take into account before making an order, all of which would be things a court would probably take into account anyway. Courts really don't need to be told to take into account "the importance of preserving human rights, including freedom of expression, and the right to property" for instance — they are required to do so by the Human Rights Act 1998 — which suggests that the amendment was not drafted by someone with any knowledge of legal practice more's the pity.

But all these good intentions are quite irrelevant because the new law gives the BPI huge leverage before anyone gets near a court. The court process may be scrupulously fair, but which ISP is going to routinely risk getting there?

Well there's plenty more that's wrong with the amendment, for example what on earth is a "location on the internet" (IP address, URL, DNS domain...)? Did anyone who knows anything about computer networking get asked about this before it was tabled (I assume: no)? But I think that is enough for me to complain about in one post. I hope you get the general idea. Sadly the politicians involved don't.

Conclusion

The Telegraph case is unlikely. Not because the legal conditions aren't made out - it is certainly true "a substantial proportion of the content accessible at or via" the part's of the Telegraph's site where all those barely redacted expenses claims where displayed infringed copyright, so there's certainly a basis for a claim. The Telegraph is in the position of having an alternative outlet to air its grievances (the paper version) and enough money to fight the government over it and to offer to indemnify any UK ISP that is nervous about it. By contrast the House of Commons was running scared in the middle of 2009 and its officials were probably sane enough to try to avoid the huge scandal associated with blocking the newspaper.

But the blocking of a newspaper, a major site like youtube, or indeed any other site (insert your favourites in here) is by no means implausible. Newspapers regularly republish information quoted in other newspapers, much of which may infringe copyright. Where a site is overseas and won't make so much of a fuss about blocking in the UK, it all becomes more likely.

My last blog on the topic of the Bill complained of a similar power that would allow the government to block sites it didn't like such as wikileaks. Subsequent amendments blocked that hole, but now we have a new provision that lets private individuals as well as the government shut down sites, with wikileaks still a prime target. Politicians of all parties need to think very seriously about whether they really want to give the BPI this amount of power.

Home copying of e-books and digital rights management

A frequently asked question that seems appropriate this time of year (given the number of e-books that are likely to appear in people's Christmas stockings) concerns what one is legally allowed to do with documents on one's own e-book, particularly one that is protected by some form of digital rights management.

Let us consider John, a keen adopter of technology. John has a number of different e-book reader platforms and numerous e-books in a variety of formats. He'd like to be able to make back up copies of the books and transfer them from one device to another — known as "format shifting". He is interested in what the law has to say about it. To keep things simple I'm not going to think about what he ought to be able to do or what he might get away with: working through the law will be enough for one post. Let us also assume that someone owns the copyright in the book being read.

Contract

John's first difficulty is that if he "bought" the e-book he may well be bound by a contract with the distributor. For example the mobipockets terms of trade (which are written in appallingly broken English) appear to prevent him format shifting since they say, under section 5 "Terms of Product or Service Use/Loadings":

You admit and you accept that the product or the service bought is exclusively readable on the PDA corresponding to the PID you registered on the Site at the inscription moment.

and further under section 9 "Property Rights":

Every elements you will find on the Site in particular the texts, the information, the images, the softwares, the logos and other distinctive signs etc. may be protected by property rights in particular copyrights. By the way you promise not to reproduce, copy, sell, resell, rent or exploit etc. whole or part of these elements in a commercial or other purpose, unless you have allowed to do it by the beneficiary.

These terms appear to prohibit John from copying an e-book to another device. If he does so he will be in breach of contract.

But at Christmas many of John's e-books were probably bought for him by his friends and family. Most legal systems won't enforce a contract against someone who was not a party to it (except in certain exceptional circumstances). In particular I think this is true in French law — the law selected by the mobipockets terms of service. John would therefore not be bound by the e-book's terms of service.

Copyright

John's second difficulty occurs if the book is subject to copyright. As a general rule John may only copy it with the permission (direct or indirect) of the copyright owner. The exceptions to the rule, most of which fall under the heading of "fair dealing" (a poor, stunted relation of the United States concept of "fair use"), are few and far between and most certainly don't include format shifting and backup.

That permission, or as we lawyers prefer to say licence, will usually come with strings attached restricting John to certain kinds of copying. For most e-books this will not include format shifting, though backup may be permitted. If John format shifts he risks doing so without a licence and thus infringing copyright.

Digital Rights Management

In practice this is all rather theoretical: no-one seems to take a blind bit of notice and format shifting particularly of recorded music in breach of its owner's copyright is the rule rather than the exception. Publishers have responded by adopting an asortment of technical measures to try to control what their customers are able to do with works that they have "bought". For example by adding region codes to DVD's so as to partition the world market, or in the case of e-books by adopting various format restrictions such as Amazon's AZW file format.

If reading E. E. "doc" Smith taught us anything it was that, given time, pretty much any technology can be beaten. The other side will invariably find a way around it. This appears to be true with DRM as with anything else. John will almost certainly be aware that the DRM used by the Amazon kindle has been hacked.

Legal protection of DRM

The next round in this rather sorry conflict between the desire of publishers to control the use of their works after they have been sold and their customers' understandable wish to be able to freely use what they have "bought" comes with the signing of the WIPO Copyright Treaty (a.k.a the WCT) on December 20 1996. Article 11 specifically requires parties to the treaty to take steps to prevent John getting around the DRM on his e-books:

Article 11
Obligations concerning Technological Measures
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

If you read this carefully you will see that there is no need to protect against the circumvention of a technological measure where that measure is being used to restrict an act that is permitted by law. In other words the states that are parties to the WCT do not need to enact laws that prohibit John from getting around DRM which is stopping him from doing something he is otherwise allowed to do: for instance if the e-book is not subject to copyright; or if he lives in a country (like France) where there is a private copying exemption or (if he lived in the US) where what he is doing would be fair use and so on.

The European Union legislative response to the WCT came on 22 May 2001 with Directive 2001/29/EC sometimes known as the Copyright Directive or the Information Society Directive. The directive is much less generous than the WCT. The definition of "technical measure" found in article 6(3) is even less easy to read than article 11 of the WCT, for reference (though feel free to skim over it):

For the purposes of this Directive, the expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.

So, a "technological measure" is anything which prevents an act not authorised by the owner of copyright (or some similar right) even if that act would otherwise be permitted by law. In this way the directive is going much further than the WCT. Article 6(4) does permit members states of the EU to incorporate some relief for anyone who is prevented from some otherwise lawful uses of their work by technological measures, but as we shall see article 6(4) does not sweeten things nearly as much as one might hope.

The directive enters English law on 31 October 2003 as a number of new sections in the Copyright Designs and Patents Act 1998. Section 296ZA attempts to prevent the circumvention of DRM ("technological measures"). It does this by making the circumvention of DRM the equivalent of copyright infringement. It permits not only the copyright owner, but also the publisher (strictly speaking the person who issues to or communicates to the public the protected work) to sue the person circumventing the DRM. Amazon could pursue John, alongside the owners of any copyright in any e-book he format shifts.

What if John wants to do something he would otherwise be permitted to do (for example that would be fair dealing for the purposes of private study)? In other words how has the UK tried to prevent DRM being used in an overly powerful way? Answer: they can complain about it. Section 296ZE permits them to issue a notice to the Secretary of State. The Secretary of State may then (but is entirely free not to) order the copyright owner or any exclusive licensee of the work to do something about it. As far as I know, the Secretary of State has never done so.

The real target of section 296ZA will not be John who after all is doing things in the privacy of his own home.Anyone who works out how to get around (say) Amazon's DRM and publishes that information on the web will also have circumvented a technological measure and will make a much more attractive target, not least because Amazon et al will have a much easier time in proving that they have suffered significant damages as a result of the circumvention.

Two small brighter points appear: first s.296ZF, defining a "technological measure", makes it clear that they only apply to a "copyright work". There should be no pentalty for getting around DRM attached to an out of copyright work. Second, only "effective" technological measures are protected. It would be marvellous, though I think unlikely, if the European Court of Justice accepts the literal meaning of that word so that once there is a widely known exploit that will crack any particular DRM we are all free to use it.

In conclusion: if John wants to avoid infringing any legal rights, he will only be able to format shift, take backups or otherwise copy material if permitted to do so by the copyright owner. Whether a company that digitised (say) the Complete Works of Shakespeare could claim that in doing so it gained a new copyright over the digitised version is another (and much more complicated) story. For now, Happy Christmas.

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.