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Is Digital Economy Bill's "sacrificial lamb" diverting attention from its sharpest Clause?
15 Dec 2009 | 13.14 Europe/London
While all the industry, parliamentary and media attention currently appears to be on Clause 17 of the Digital Economy Bill, another clause could mean the "Government will be able to take increased control over the Internet and what passes over it." That's according to Francis Davey, a practising barrister and legal advisor to the technology sector, who says Clause 11 of the Bill could allow the Secretary of State to block groups of websites and implement "technical measures which could be imposed by stealth."
Clause 11 is concerned with, "Obligations to limit Internet access." Quoting from the Digital Economy Bill - and given certain caveats - it states:
Mr. Davey argues it's being overlooked partly because "the clauses before and after it act as a kind of (almost certainly unintentional) misdirection" - and partly because if it's enshrined into law the consequences are likely to be felt in the long term rather then immediately. To illustrate his point he cites other powers that have been introduced in response to "whatever is the popular issue of the day," only to be used later in ways that weren't envisioned by their creators. What's rapidly becoming the textbook example of this is the way that legislation designed to freeze terrorist funds was used against one of Iceland's banks, Landisbanki, during the country's recent financial crisis.
"Clause 11 could easily be used to force the blocking of specific sites or group of sites, such as those that have been identified as having unlawful content by an organisation like the Internet Watch Foundation; or the choking of specific forms of P2P protocol," he told Samknows. "There is not even a requirement that the subscribers to ISP's are made aware of technical measures which could be imposed by stealth. The fact that there is no need to publish or consult on the use of the power means that there is minimal external quality control, or publicity which might serve in lieu of parliamentary scrutiny."
The Department for Business, Innovation and Skills puts Mr. Davey's reading of the Clause down to a "little bit of a misunderstanding." A spokesman issued the following statement to Samknows:
But Davey says, if anything, the "misunderstanding" is on the part of the Government spokesman. "The problem with the Department's view - and here I like to think I know better since I'm a practising barrister and I make my living arguing with judges about what legislation does mean - is that Clause 11 contains no such limitation," he says. "It is possible - though its far from clear - to read into the clauses about [an Ofcom] code of practice that the can in some way control the exercise of the power. But even if that's right, there's nothing in to stop the Secretary of State doing what I suggest."
Davey argues that, while a code would be subject to parliamentary supervision, the "underlying power" that's given to the Secretary of State would not be. Not only that, he says the E-Commerce Directive mentioned by the Department of Business spokesman wouldn't prevent ISPs restricting access to specific websites - on a technical level, no monitoring would be required before measures to block them could be introduced. "It's quite possible that the civil servants involved haven't understood how this works - they are falling into the trap of thinking what they intended not what they wrote," he adds.
While an amendment has now been tabled to "delete Clause 17" from the Digital Economy Bill (on the grounds that the powers it would bestow are "unnecessary and over-reaching," in the words of Lib Dem peer Lord Tim Clement-Jones), Clause 11 isn't receiving such parliamentary attention. Nor have the likes of Google, Facebook and company haven't been writing letters about Clause 11 demanding for it to be removed. Whether or not Clause 17 is the deliberate "sacrificial lamb" that it's been made out to be - apparently designed to divert the flak away from other parts of the Bill - if Clause 11 really is a wolf in sheep's clothing then it could be next to the slaughter.
Clause for thought
Clause 11 is concerned with, "Obligations to limit Internet access." Quoting from the Digital Economy Bill - and given certain caveats - it states:
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.
Mr. Davey argues it's being overlooked partly because "the clauses before and after it act as a kind of (almost certainly unintentional) misdirection" - and partly because if it's enshrined into law the consequences are likely to be felt in the long term rather then immediately. To illustrate his point he cites other powers that have been introduced in response to "whatever is the popular issue of the day," only to be used later in ways that weren't envisioned by their creators. What's rapidly becoming the textbook example of this is the way that legislation designed to freeze terrorist funds was used against one of Iceland's banks, Landisbanki, during the country's recent financial crisis.
"Clause 11 could easily be used to force the blocking of specific sites or group of sites, such as those that have been identified as having unlawful content by an organisation like the Internet Watch Foundation; or the choking of specific forms of P2P protocol," he told Samknows. "There is not even a requirement that the subscribers to ISP's are made aware of technical measures which could be imposed by stealth. The fact that there is no need to publish or consult on the use of the power means that there is minimal external quality control, or publicity which might serve in lieu of parliamentary scrutiny."
"Little bit of a misunderstanding"
The Department for Business, Innovation and Skills puts Mr. Davey's reading of the Clause down to a "little bit of a misunderstanding." A spokesman issued the following statement to Samknows:
The point on (lack of) consultation and scrutiny is factually wrong. Clause 12 [which Clause 11 must be read in conjunction with] requires an Ofcom code; under the Communications Act, Section 403, Ofcom have to consult. The Bill requires the order by Statutory Instrument to be laid in both Houses of Parliament.
In terms of a banned list we could not block whole sites with unlawful content because it demands the question: "who decides and on what basis." And, unlike the IWF and their site list (based on the fact that possession of child abuse images is a criminal act in most jurisdictions), there is no such clear distinction on copyright where there could be a mix of content or where indeed the content is legal but the access to, and copying of, might be in breach. In addition, this action might require a general obligation to monitor, which runs counter to the E-Commerce Directive.
Falling into a trap
But Davey says, if anything, the "misunderstanding" is on the part of the Government spokesman. "The problem with the Department's view - and here I like to think I know better since I'm a practising barrister and I make my living arguing with judges about what legislation does mean - is that Clause 11 contains no such limitation," he says. "It is possible - though its far from clear - to read into the clauses about [an Ofcom] code of practice that the can in some way control the exercise of the power. But even if that's right, there's nothing in to stop the Secretary of State doing what I suggest."
Davey argues that, while a code would be subject to parliamentary supervision, the "underlying power" that's given to the Secretary of State would not be. Not only that, he says the E-Commerce Directive mentioned by the Department of Business spokesman wouldn't prevent ISPs restricting access to specific websites - on a technical level, no monitoring would be required before measures to block them could be introduced. "It's quite possible that the civil servants involved haven't understood how this works - they are falling into the trap of thinking what they intended not what they wrote," he adds.
While an amendment has now been tabled to "delete Clause 17" from the Digital Economy Bill (on the grounds that the powers it would bestow are "unnecessary and over-reaching," in the words of Lib Dem peer Lord Tim Clement-Jones), Clause 11 isn't receiving such parliamentary attention. Nor have the likes of Google, Facebook and company haven't been writing letters about Clause 11 demanding for it to be removed. Whether or not Clause 17 is the deliberate "sacrificial lamb" that it's been made out to be - apparently designed to divert the flak away from other parts of the Bill - if Clause 11 really is a wolf in sheep's clothing then it could be next to the slaughter.