The Independent View: Liberal Democrats should oppose the Digital Economy Bill

Last week we reported that, following the concessions forced on the government, Don Foster MP is broadly happy with the Digital Economy Bill’s proposals on illicit downloads. Jim Killock of the The Open Rights Group has a different take on the situation:

The Digital Economy Bill should be opposed by Liberal Democrats. Mandelson’s Bill seeks to reduce illicit downloads by punishing innocent people, removing any chance of a reasonable defence, and by disconnecting people.

Let’s start with this first idea, of disconnecting ‘infringers’.

Let’s say you pay BT, for broadband and somebody else downloads a number of copyright music tracks. You, your family, and maybe the infringer, get cut off.

This is equivalent of banning a family from using buses because one of them appears to be a fare dodger (assuming that family needs the bus to visit the library, bank, paper shop and to attend political meetings).

We must be clear: this is draconian and inappropriate. The government even plans to make the offender pay for the opportunity to defend themselves. Proving you did not offend will not be a defence. If somebody else appears to have used your internet account, then you will be deemed guilty and punished.

This approach, the government says, will only kick in if their campaign of writing letters and taking people to court doesn’t work.

Legislators will, in this Bill, leave the door open to an extremely draconian enforcement regime, with no means of narrowing it or making it more reasonable. It will not be possible, for instance, to choose a more reasonable punishment such as a small fine. It will not be possible to limit the liability to actual infringers.

The Joint Committee on Human Rights recently warned MPs:

    “We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression.”

Clause 11, meanwhile, allows restrictions on the internet to be imposed for more or less any reason. Liberty warn this will be a wide-ranging power to censor:

    “The Secretary of State could for example order that those accessing websites that fit a particular criteria be cut off – for example political or religious websites considered to be extreme. It takes little imagination to envisage where such a power could lead. What has been described as a power to cut off illegal file-sharers is in fact better described as a power to cut of internet access for whomever the Secretary of State sees fit.”

This is a Bill that any liberal-minded individual should be working to oppose. Copyright deserves legal protection – which it already has – but not at the expense of punishing the innocent and our right to defend ourselves from unreasonable accusations.

Copyright enforcement should also not favour one part of industry – entertainment moguls –  over the ability of every other part of society to operate an open wifi network for their customers. Yet every café, hotel, library and school will risk disconnection because of the actions of their users and customers. No wonder everyone from the Federation of Small Businesses to librarians are worried: they too could be victims of the Bill’s unjust approach.

This Bill offers an appalling example of business special interests being allowed to trample over citizens’ rights. We must fight to prevent a pattern of industrial property rights being allowed to legally distort our online rights, just as those rights become important to the vast majority of UK citizens.

Please take action, by contacting your fellow Liberal Democrats and your MP.

If you want to help, you can take action via our website: http://www.openrightsgroup.org/campaigns/disconnection

The Independent View‘ is a slot on Lib Dem Voice which allows those from beyond the party to contribute to debates we believe are of interest to LDV’s readers. Please email[email protected]if you are interested in contributing.

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24 Comments

  • Lawrence Williams 10th Feb '10 - 8:38pm

    This is highly amusing reading, overall, and it is clear that Jim hasn’t actually bothered to read the Digital Economy Bill at all. Instead, what we get is what has characterised a lot of the opposition to the Bill itself – wild-eyed scaremongering that has nothing whatsoever to do with what is proposed. I implore you to look at the actual facts, then:

    “Let’s say you pay BT, for broadband and somebody else downloads a number of copyright music tracks. You, your family, and maybe the infringer, get cut off.”

    If you are a BT customer, you have already signed a contract which makes crystal clear that you, as the account holder, are responsible for any activity on your account. Exactly the same situation for any other utilities. What would actually happen under the Bill is that you would receive a number of warnings. The first letter would be educational in nature. If you, as the account holder, are filesharing, then it’s clearly time to stop. If it’s a family member, then a quiet word will probably be enough. If you have no idea how it’s happened, or suspect some kind of wifi hacking, then there will be clear advice on what to do to secure your network or implement security.

    Only after a series of escalating warnings is there the chance of any kind of technical measures being applied. And before any measures are applied, there’s a clear opportunity to appeal. How is this not reasonable?

  • Andrew Suffield 10th Feb '10 - 9:09pm

    If you are a BT customer, you have already signed a contract which makes crystal clear that you, as the account holder, are responsible for any activity on your account. Exactly the same situation for any other utilities.

    Yes. If somebody drowns another person in a sink filled with water from your tap, then you are held responsible, and banned from using water for any purpose.

    Oh wait, no. That’s pure fantasy. The situation for any other utility is that the person who commits the offence is responsible for it, not the ‘account holder’. And despite what some contract of adhesion says, the same thing currently applies to internet service. Just because BT would like to hold you responsible doesn’t mean that a court won’t immediately throw that clause out, and tell BT to go sue the person who was actually responsible.

    If it’s a family member, then a quiet word will probably be enough.

    What you are proposing here is collective punishment. By punishing the group, you force individuals within it to police themselves. It does, technically, work. It is explicitly banned by the Geneva convention, so we could not do this to an enemy nation during wartime – why do you consider it acceptable to do to our own citizens?

    If you have no idea how it’s happened, or suspect some kind of wifi hacking, then there will be clear advice on what to do to secure your network or implement security.

    And when that advice proves inadequate (all mainstream wifi systems including WPA have now been broken – what exactly are they going to tell you to do?), you get punished.

    If you have no idea how it’s happened, then you get punished.

    If it’s a student house, shared with six other people, and you have no idea who is responsible, then you all get punished (there will be no investigation, you’re just all collectively guilty for living in the same house).

    And before any measures are applied, there’s a clear opportunity to appeal. How is this not reasonable?

    Only the account holder has an opportunity to appeal. No other residents at the same address have a right of appeal, but they will be punished anyway. The scope of permissible appeal is undefined and will be invented by the next government (not this one) at a later date – it is undetermined what your rights to legal aid will be, what standard of proof will be required, and what all this might cost to defend.

    Actual facts, much?

  • “There is nothing reasonable about disconnecting people who rely on a service. That is blanket and indiscriminate punishment. Disconnection when applied to family, punishes all those family members. ”

    You mean somewhat like every ISP in the country is already only too happy to do should you not pay your bill.

    Stop distorting the truth Jim, you’re beginning to sound like a politician, or is perhaps that the point, trying to drive membership of your own political party.

    Oh, by the way, why single out the music industry, I gather this also applies to the film industry, book industry, games, sport, photographers, artists, writers, journalists……………….

    Seems to me that all of the above are not the ones been unreasonable here.

    Martin.

  • Andrew Suffield 11th Feb '10 - 11:58am

    And I disagree with the notion that when you contract a service from a private company they have not got the right to set whatever rules they like.

    Note that the ISPs here all hate this bill precisely because it’s interfering with their right to do that.

    (Also note that they don’t really have the right to set whatever rules they like; as with all contracts of adhesion, they are limited to reasonable rules, and any unreasonable rules are simply unenforcible)

  • I read the first response by Lawrence and LOL, to coin a ubiquitous internet acronym. It is utterly ridiculous for the law to attempt to address this issue. Are politicians and those with vested interests really so ignorant of the technicalities of digital filesharing that they believe that ISPs will simply be able to monitor and track every data packet that traverses their networks? Surely not. This bill if passed will very likely show a brief dip in sharing activity, followed by the release of a plethora of new tools to the same job, only data will be1000 times more encrypted and untraceable. I think that we have been priviliged as a generation to witness the dawning of a new age of information sharing. Owners of digital content (or content that can be digitised, which is most things lets face it), need to look at new ways to generate revenue (and there are ways to do it, but I’m not going to write a paper on it here). My humble but informed opinion is that bill or no bill, draconian or not, noone can stop the tide of information sharing in this digital age. Even terror in Iran hasn’t stopped it, and before anyone says; ‘ok, but that’s not filesharing’, just think about how much more zealously they have attempted to prevent viral digital content from spreading, and how publicly and spectacularly they have failed.

  • The trouble with the Digital Economy Bill is that it will punish everyone with an Internet connection by making them pay £30 extra a year, but won’t actually stop anyone from downloading illegally. When faced with their first strike, a hardcore music downloader has two options:

    A) See the error of their ways and cease filesharing.
    B) Start logging on to an Anonymous 128-bit encrypted VPN server, enabling them to continue filesharing without fear of detection or disconnection.

    You’d have to be living in cloud-cuckoo land to believe that anyone tech-savvy enough to fileshare in the first place would choose option A, especially when the average monthly cost of a VPN is less than an album.

    Yes, given time, 128-bit encryption can be cracked, but as its the same level of encryption that is used to securely transmit credit card information on the web, this act would put all online commerce in jeopardy including legal music services. When thousands or millions of people start using VPNs on a daily basis, there’s no way that anyone will be able to track the level of illegal filesharing. Plus, as MI5 warned, this will endanger society as the mass adoption of encryption technology will make serious crimes like terrorism far harder to detect and prevent.

    I’m convinced that a legal P2P service would be the most effective way of cutting illegal downloads. It is truly amazing that a decade after Napster, the music industry still haven’t provided one.

  • Don Foster’s support for this bill is an absoute disgrace. I hope the party and our MPs will see sense on this.

  • Andrew Suffield 13th Feb '10 - 1:05am

    B) Start logging on to an Anonymous 128-bit encrypted VPN server, enabling them to continue filesharing without fear of detection or disconnection.

    Yes, given time, 128-bit encryption can be cracked, but as its the same level of encryption that is used to securely transmit credit card information on the web, this act would put all online commerce in jeopardy including legal music services.

    Let’s be specific here: ipredator costs €5/month and everybody in the file sharing community knows about it. It has been very carefully set up to be legally bulletproof; even if they get sued, they don’t have any records to hand over. The only reason more people don’t currently use it is because right now, there’s no reason. If this bill does pass then there will be a massive surge in its popularity. The industry’s figures will show a “significant decrease” in activity because they’re no longer able to detect it; they’ll claim this justifies the law being strengthened.

    While it is technically true that “given time” the encryption could be cracked, we’re talking about forty years here, and you’d have to do it once for each session, where a session is a few hours for a single user.

  • “Start logging on to an Anonymous 128-bit encrypted VPN server, enabling them to continue filesharing without fear of detection or disconnection.”

    What I love about this kind of fantasy is the way the exponent would trust a random filesharing company with his IP and money faster than he’d trust the UK government. Either way, it’s pretty easy for ISP’s to detect this sort of thing (because you’re using their connections…they give you the IP in the first place), and in the bill as it stand, as I understand it, they have the burden of ensuring that you don’t. Proxies always reduces speed, I think there’s a good chance that for all the hassles and potential pitfalls people will simply go legit, spend their $70 on iTunes rather than giving it to the Pirate Bay.

    “This is a film about how all of us have become Richard Nixon”…

  • Either way, it’s pretty easy for ISP’s to detect this sort of thing (because you’re using their connections…they give you the IP in the first place), and in the bill as it stand, as I understand it, they have the burden of ensuring that you don’t.

    There’s nothing inherently illegal about using a VPN, so I don’t think there will be a burden on the ISPs to stop them. Many people already use VPNs to connect to their workplace computer from home. I suspect a lot of internet users who have never downloaded anything illegal in their life will use this method in order to preserve their privacy.

    However, what concerns me most about the Bill is the fact that it overturns the fundamental principles of justice. A rights holder can make an accusation against an infringer with next to no evidence, and yet the accused will have to pay in order to appeal – that is “guilty until proven innocent” in my book and totally unacceptable.

  • Hey Miles

    >There’s nothing inherently illegal about using a VPN

    No, sorry, you’ve misunderstood my point – I meant using a VPN to try to hide the fact you’re downloading copyrighted content. Products like iPredator offer the user no protection, as you receive your half of the keypair via your ISP, who are already legally required to have a DPI system in place. like SonicOS. the latest version of which automatically holds any SSL keys acquired and decrypts anything incoming. SonicWALL actively promotes their DPI products as being capable of making systems like iPredator ineffective.

    This is the reason the bill targets ISPs, they’re already set up to carry it out, they just don’t want the hassle. There are a few people who haven’t sussed this out yet, and are using iPredator (apt title) not realising that they’ve painted a bright red target on themselves by “securely” connecting to a flagged IP block. To make this 100% clear, from the ISP end privacy doesn’t really exist – if you can get it, they can get it (or they can get you getting it). There are ways around all of this, but they’re usually too complicated or costly for the average user…or you just steal someone else’s connection. (Obviously transferring keys over different connections would help, but most people aren’t going to be bothered to do that).

    >A rights holder can make an accusation against an infringer with next to no
    >evidence, and yet the accused will have to pay in order to appeal

    I agree that isn’t an ideal circumstance, but actually you’re describing the law as it stands. A rights holder can already start civil proceedings against you, and you’d be forced to pay to defend yourself – at least under the bill you’d have warnings.

    At the moment, it’s become increasingly tempting for rights holders to make money by random entrapment (ACS:Law, etc), and it’s a method that has proven to be a successful revenue stream – you’ll probably make more money out of using this current legal grey area than you will selling CDs/software/etc. The Google Ads on this very site offer me the chance to “Blow the whistle on my boss” for rewards of “up to £100,000” (copywatch.org), so Liberal Democrat Voice is happily making money from advertising firms that have converted consumers into targets, and then argues that we don’t need this kind of legislation.

    Jim here is fighting against the bill, he’s arguing against a graduated response, leaving the current system where individuals can be sued for millions with little legislation to protect either party. Like most that make these arguments, Jim doesn’t offer an alternative and if he wins (the bill fails) the ACS:Law model will become the norm (this is a big legal growth sector, have a Google). The laws of the high seas are not for everyone, I fear.

    Since people started stealing my work from me I’ve been thinking a lot about stealing from them. I’m pretty sure that a society where everyone’s stealing from each other is going to be very unpleasant to live in, so I’d much rather find another way. The bill offers us a different path, we’d all lose out if we didn’t take it.

  • Hi Jim,

    Regarding SonicOS’s SSL DPI :http://www.sonicwall.com/us/support/230_15496.html

    “The SSL traffic is decrypted transparently, scanned for threats and then re-encrypted and sent along to its destination if no threats or vulnerabilities are found. DPI-SSL provides additional security, application control, and data leakage prevention for analyzing encrypted HTTPS and other SSL-based traffic.”

    They don’t “steal” the keys, just as they don’t steal your e-mail when they check it for links with terrorism. They don’t want to do it either, legislation is driving that marketplace. The purpose of this technology is to stop illegal uses of encryption, such as terrorism, child porn and distribution of illegal material, packets that don’t flag up are sent onwards with no interference or human inspection. It’s aimed at dealing with the obvious problems that encrypted communications cause, far from being illegal, there is much legislation that implies they’d be mandatory if the ISP were to be capable of fulfilling their obligations. If there’s no control of content, how do you stop child porn, terrorism, copyright theft, identity theft, hacking, etc? How would you deal with these things without such technology? Or would you not?

    “One minute we’re told Spotify will be the model – the next we hear Spotify’s business is likely to fail because the licensing model isn’t considered acceptable or isn’t priced appropriately.”

    That’s because it’s simply another model paid for by advertising, trying to convert work into “free”. If advertising is “the payoff” you’re led into strange territory – like I said, the adverts here encourage people to make money from grassing up your friends, family or colleagues. I think a lot of independent content creators find the idea of consumers paying for their products via advertising fairly unpleasant.

    I don’t understand what you mean when you say “a working market system in copyright goods”. Can you explain this? You show me the way, and I’ll follow, but I’ve yet to hear a compelling case put for an alternative system – please try, spare no detail.

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