Why the UK Cover-up of ISP Spying Proposal?

The documents obtained by FoI requests that I referred to in an earlier post today have proved richer than we expected:

Previously confidential documents detailing Universal Music’s meetings with the former UK government over the Digital Economy Act are revealing a whole lot more than the pair intended. Blacked-out sections now uncovered show that Universal believed that ISPs could spy on their users and hand over information to rightsholders in order for them to sue.

Here's the relevant paragraph that was blacked out in the supplied PDF:

LG: Universal have entered into an arrangement with the Internet Service Provider (ISP) Virgin to target legitimate broadband users with a £10 "all you can eat" offer. There is a commercial risk with this strategy, which could be like "putting a Coca Cola pipe in your house which would then supply the whole street". In return for a fixed fee revenue share Virgin have agreed to anti-piracy measures, including pop-up warnings on screens. As ISPs can monitor the amount of power used by specific users and the sites connected to, it is possible for ISPs to pass on any details to owners of particular rights, who could then get take legal action.

"LG" is Lucian Grainge (CEO, Universal Music Group International).

Now, the idea that he wanted ISPs to spy on users as a matter of course (using Deep Packet Inspection, presumably) is extraordinary, and I'm sure we'll be seeing some interesting legal analyses of that. But I want to consider another question here. By what right did the UK Government try to censor that embarrassing admission?

The FoI covering letter lists various possibilities for such censorship:

Please note that some material has been considered against the following exemptions:

Section 35 (1a) Formulation of government policy
Section 35 (1b) Ministerial communications
Section 40 Personal information
Section 43 Commercial interests

I presume that it was under the last of these that the material was redacted. Looking more closely at the conditions, as explained in the letter:

Section 43 sets out that information is exempted from the right to know if:

The information is a trade secret, or
Release of the information is likely to prejudice the commercial interest of any person (A person may be an individual, a company, the public authority itself, or any other legal entity

Moreover:

This is a qualified exemption. A public authority can only refuse to provide the information if it believes that the public interest in withholding disclosure, outweighs the public interest in disclosing it.

The public interest in knowing about plans to spy on its Internet connection certainly outweighs the public interest in not disclosing (which is zero).

So is this just another case of the UK Government taking the side of the recording industries again, and to hell with the public and their rights, including the right to know what is happening in meetings with their government?

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It's Good to Share

The passing of the Digital Economy Act remains one of the worst blots on the British political system in recent years. As anyone who had the misfortune to witness the final hours of the previous government, the way in which the act was pushed through Parliament by a handful of (mostly) indifferent politicians (with a few honourable exceptions - step forward, Tom Watson...) was a real slap in the face of the British public - and democracy.

We've always known that Peter Mandelson was the driving force behind the legislation, but we now have some of the appalling details of how and why it happened thanks to excellent work by Phil Bradley using the WhatDotheyKnow.com website to submit Freedom of Information requests on the subject. Basically, the whole public consultation being conducted at the time was a cynical sham, since Mandelson had already made up his mind, and wanted to move on to disconnection of alleged filesharers immediately.

Since there are now two excellent analyses of the documents released, one on TorrentFreak, and one on Mark's Musings", I won't repeat the exercise here - I'll just urge you to visit those sites and experience the full arrogant high-handedness of the Dark Lord.

However, I'd like to mention two positive aspects of this sorry tale.

First, the importance of sharing information gleaned through FoI requests. The ability to find out what really happened is great, but not much use unless people can see it and build on it. The WhatDotheyKnow site allows just that.

Secondly, it's great to see yet another fine post from Mark Goodge, who writes the blog "Mark's Musings. I've only just come across this, and I'm impressed by the depth of analysis he offers on a range of subjects that are dear to my heart - for example, this fine discussion of the Meltwater judgment.

Not that I can always fully agree with his viewpoint. For example, as a follow-up to the Mandelson post mentioned above, he has written one called "A balanced approach to copyright", with a list of "things that have to be accepted". Mostly good stuff, but inevitably the following sticks in my craw:

Intellectual property rights do have a solid justification for their existence. It’s their implementation which is the issue.

Well, no - more details to follow later this week.

Still, it's great to have Mark as another voice exploring these key issues for the digital world with such intelligence. It's good to share...*roughly* the same general viewpoint.

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Mandelson's Power to Censor the Net

I and many others have already noted that the proposed Digital Economy Bill gives far too many sweeping powers to the government. According to this detailed analysis, looks like there's one more clause to worry about:

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.

And how might that be used?

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.

Hidden away inside the Bill, there's unlimited - and arbitrary - censorship of any site the Secretary of State takes against:

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.

If this goes through, we are in deep trouble, people....

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Mandelson's Madness

The trajectory of the Digital Economy Bill has been extraordinary, constantly experiencing will-he-won't-he moments as successive consultations and comments and rumours have contradicted each other over whether “three strikes and you're out” would be part of the plan. Today, the Bill is finally published, but that particular element now looks almost mild compared to what is apparently coming...

On Open Enterprise blog.

Lies, Damned Lies and Media Industry Numbers

A few months back, I wrote about how some figures quoted in the "Copycats" report produced by University College London's CIBER for the UK governmnent's Strategic Advisory Board for Intellectual Property Policy were based on nothing more than wishful thinking by the media industries. You would have thought that having been caught red-handed once, they might have stuck to the truth. It seems not:

The British Government's official figures on the level of illegal file sharing in the UK come from questionable research commissioned by the music industry, the BBC has revealed.

Specifically, we're talking about that emotive "7 million people" that are engaged in allegedly illegal file sharing:

As if the Government taking official statistics directly from partisan sources wasn't bad enough, the BBC reporter Oliver Hawkins also found that the figures were based on some highly questionable assumptions.

The 7m figure had actually been rounded up from an actual figure of 6.7m. That 6.7m was gleaned from a 2008 survey of 1,176 net-connected households, 11.6% of which admitted to having used file-sharing software - in other words, only 136 people.

It gets worse. That 11.6% of respondents who admitted to file sharing was adjusted upwards to 16.3% "to reflect the assumption that fewer people admit to file sharing than actually do it." The report's author told the BBC that the adjustment "wasn't just pulled out of thin air" but based on unspecified evidence.

The 6.7m figure was then calculated based on the estimated number of people with internet access in the UK. However, Jupiter research was working on the assumption that there were 40m people online in the UK in 2008, whereas the Government's own Office of National Statistics claimed there were only 33.9m people online during that year.

If the BPI-commissioned Jupiter research had used the Government's online population figures, the total number of file sharers would be 5.6m. If the researchers hadn't adjusted their figures upwards, the total number of file sharers would be only 3.9m - or just over half the figure being bandied about by the Government.

I don't want to focus on the way the government supinely relies on the media industry for its "data", or the fact that the media industry continues to resort to these fabricated figures to justify its insane actions. Instead, I'd like to look at two other aspects.

First, let's give some kudos to the BBC for deciding to investigate these figures. At a time when the BBC is under attack (a) from interested parties like James Murdoch for daring to exist, and from (b) trouble-makers like me over its weak coverage of the computing sector, it's great to see some great reporting from it.

But what I really want to underline here is the own goal scored by the content industries. The more plausible 3.9 million figure mentioned above would have served their purposes admirably: it's quite big, and so is "shocking" enough. By foolishly going for the 7 million figure, the media moguls have dug their own grave.

By quoting that number, they are effectively saying a vast swathe of the UK population is engaged in that activity. And as history teaches us, when such a vast proportion of a nation is doing something that is technically breaking the law, this shows not that these people are bad, but that such a law is self-evidently unjust to that nation.

So, whether we believe it or not, we should use this 7 million figure, and throw it back in the face of the media industries as proof that they are totally alienated from their customers. And based on that, we should invite them either to show that they do indeed care about such people by changing their approach radically, or at least frankly to admit what seems obvious to any dispassionate observer: that they actually hate their customers for revealing them to be liars, bullies, cheats and fools.

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Good Thoughts on Naughty Lord Mandelson

One of the heartening things about the disheartening three-strikes saga currently playing out in the UK is the quality of the opposition that has provoked. I've already tweeted today about Cameron Neylon's splendid polemic - written with a rigour that only a scientist can provide - which I strongly urge you to read.

Meanwhile, here's an important point made by Monica Horten:

What he [Lord M.] doesn't get is that the Internet is not an entertainment system. It is a public communications network. The powers that he could acquire have serious implications for civil liberties, in particular for freedom of speech. Under the UK's own Human Rights Act, freedom of speech may only be restricted where there is a genuine public interest objective, and any measures must be specific and limited.

I think this goes to the heart of the problem with Lord Mandelson's intervention: he thinks the Internet is like radio or television, and does not appreciate how much bigger it is than that. As Horten points out, the UK's Human Rights Act may well provide the coup de grâce to his plans.

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Of Mephistopheles and Poodles

I was always under the impression that Lord Mandelson was dark, Machiavellian and very sharp; apparently not:

Lord Mandelson launched a crackdown on internet piracy just days after meeting a leading Hollywood critic of illegal file sharing.

The business secretary plans to criminalise the estimated seven million people - one in 12 of the population - who illicitly download music and films over the internet.

In what critics describe as a gross attack on civil liberties, those flouting new laws could see their internet accounts suspended and face fines of up to £50,000.

Parents could even be thrown off the net even if it is their children are caught downloading tracks upstairs in their bedrooms, not them.

Lord Mandelson ordered officials to draw up the draconian regulations days after dinner with David Geffen, who founded the Asylum record label which signed Bob Dylan.

The pair dined on 7 August at the Rothschild family villa on Corfu, while Mandelson was holidaying on the Greek island.

I've heard of poodles turning into Mephistopheles, but never the other way round.... (Via Techdirt.)

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