Should the Secretary of State have the power to determine whether websites and Internet services can be blocked? Behind closed doors, proposals are being floated which would enable Industry and Culture Ministers to give the go-ahead for ‘technical measures' against file-sharers, without any referral to Ofcom or due process for the user.
The music and entertainment industries in the UK are putting pressure on the government to bring in ‘technical measures' - that is, the use of deep packet inspection and other network-based techniques for Internetrestrictions to support copyright. The government is believed to be considering a response that would involve amending its P2P consultation. The power to decide on Internet restrictions and blocking of peer-to-peer and other web services, could be given to the Secretary of State - Lord Peter Mandelson for BIS and Ben Bradshaw for DCMS.
It is understood that the rights-holder industries are demanding that the government should shorten the timescale for bringing in "technical measures" on the basis that the government's proposed timescales, as set out in the P2P Consultation, are too long.
It seems they want a short-cut to decision-making which by-passes the established procedures for communications policy. Under the proposals, which have not been made public, decisions to implement Internet restrictions be taken by the Secretary of State. Ofcom, the regulator, would not be involved. Ofcom is bound by due process and consultation procedures - and a duty to protect citizens.
Any amendment to the P2P consultation document, which is currently published and open for responses, would be an unusual breach of procedure.
The rights-holders wrote to The Daily Telegraph on 10 June setting out their demands. An article in The Guardian
quotes the head of the Trades Union Congress calling for ‘technical measures' to censor the Internet.
‘Technical measures' mean protocol, URL and IP address blocking, ‘throttling' or slowing down the speed of a users connection, and interception of users communications to identify the content being transmitted. That means that web pages or websites, may be blocked, and access to particular services may be prevented. They will be implemented without the user's knowledge. The criteria will be set outside of any established public processes, and it is not clear on what basis this kind of blocking would or would not be permitted.
Under the proposals in the BIS P2P Consultation, there will be a 12-month period where file-sharers will be sent warnings by their ISP, following allegations by the rights-holders. BIS wants to ensure that there will be a standard for the evidence supplied by right-holders. The process is to be supervised by Ofcom. If the warnings do not achieve a certain target for reduction of file-sharing, then the government will consider legislating for technical measures. It is widely expected that the latter will indeed be the case.
It is arguable that the BIS P2P proposals already breach EU law, because the broadband providers are ‘mere conduits' and legally have no responsibility for content. In a free and democratic society, this is the correct way for a communications network to operate. In this respect, the ‘mere conduit' principle upholds the fundamental right to freedom of expression, enshrined in EU law, and in the UK Human Rights act. The BIS P2P proposals do appear to be in breach of Amendment 138 to the EU Telecoms Package, which is still to be debated in the European Parliament this autumn.
That is not to say that musicians should not be paid, or even that record producers should not earn money. However, as the Internet industry consistently argues, the music industry should adapt their business models to the Internet era. The figures produced by their own organisations indicate that the music industry is not suffering as much as many other industries in the current recession.
‘Technical measures' amount to censorship. Today, it is about copyright, tomorrow it is news media. Taking this new step of giving the Secretary of State the power to determine if and when the Internet should be restricted, takes us one step further away from a democratic society. It is a very, very dangerous step indeed.
Further information: please see my coverage of the EU Telecoms Package. The underlying issues are all founded in this esoteric piece of EU law which is currently blocked in the European Parliament. It will enter its third reading this Autumn.
The UK P2P consultation document is available for download. There is still time to submit to it.
This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2009) Copyright industries pressure UK to filter the Net http://www.iptegrity.com 6 August 2009.