News that the UK government was doing a U-turn over the use of a “three strikes and you're out” approach has finally turned the growing tragedy of the Digital Britain process into a total farce.
For all its faults, at least those putting together the Digital Britain report seemed to understand a fundamental truth: that access to the Internet is now on a par with access to electricity and water – you simply cannot function properly in a modern society without it.
Thus its target of providing a minimum access speed of 2Mbits/s to everyone in the UK was a step in the right direction, albeit rather unambitious compared to what other countries like France and South Korea already provide.
From that understanding flowed the inevitable conclusion that cutting people's Internet connection was not a just or proportionate punishment for allegedly swapping copyright materials, any more than cutting someone's electricity supply would be for watching the TV without a licence, or cutting someone's water supply would be for brewing illegal spirits.
It's really comical reading the official explanation of why the UK government is now junking just about all that reasonable reasoning behind the Digital Britain report.
Full of weaselly phrases such as “our thinking on the process supporting the objectives and the obligations has developed”, “the previous proposals, whilst robust, would take an unacceptable amount of time to complete in a situation that calls for urgent action” etc., none of the explanations stand up to close examination (Simon Bradshaw has provided an excellent point-by-point analysis of why not).
And as we know, the real reason the UK government has junked its previous thinking is simply because Lord Mandelson “demanded it”. Indeed, it's striking how the new proposals arrogate to him wide powers to decide digital life or death over us mortals:
We would welcome comments on the proposal that the Secretary of State be given a two-part power of direction. The first part would enable him to direct Ofcom to carry out preparatory work on the mechanics of introducing technical measures, including an assessment of their efficacy on different networks, as well as developing the code that will apply to implementing such additional measures, and to consult on their conclusions.
The second part would allow the Secretary of State to direct Ofcom to introduce the measures they had determined were effective and proportionate should he conclude that such measures are necessary to achieve the overall objective. Ofcom will still have a duty to monitor the overall position and report on the effectiveness of the original obligations in order to provide an evidence base for the Secretary of State’s decision, but this advice would not be binding on the Secretary of State and he would be able to take into account other, wider factors and other sources of information before taking any decision on the introduction of technical measures.
Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation. It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services.
At times, a naïve observer could be forgiven for thinking that it's Lord Mandelson, and not Gordon Brown, who's running the country.
Of course, throwing away the hard work of those behind the Digital Britain report, and ignoring all the comments that were made, is bad enough; worse is the fact that the new proposals, evidently the product of extreme haste rather than mature reflection, won't work, for multiple overlapping reasons.
Legally, they won't work, because they fly in the face of Amendment 138 to the EU Telecoms Package – unless, of course, the UK government manages to subvert that clause forbidding them from cutting people's Internet connection off without judicial oversight, something that is entirely possible.
Even if they do, the European Court of Human Rights might also have something to say about being presumed guilty on the say-so of a few media organisations. To their credit, UK ISPs have already made it clear that they will challenge the new proposals in every way they can.
Technically, they won't work because the only way to find out whether materials being swapped over P2P networks are infringing on copyright is to use deep packet inspection – looking at the traffic type isn't enough. If the government aims to take that route – again, given it's total indifference to our privacy, eminently possible – all it means is that the more tech-savvy will start encrypting their traffic; those who can't take this route will simply buy a few terabyte external hard discs – costing around £50 these days – and swap files personally when they visit their mates.
But beyond showing the UK government to be fickle and pig-headed, this U-turn is something else: suicidal for the Labour party. Leaving aside the fact that it antagonises the seven million people who allegedly download copyright material – a not insignificant proportion of the electorate - who are likely to be most affected by the new proposals? Will it be the middle classes, who can not only afford to pay for overpriced music downloads, but might even have Internet connections – including one for the children to use for their dodgy activities? Hardly.
But consider poorer families, who can barely afford one Internet connection, and who may even share a wireless connection across several adjacent households. Consider now if someone – maybe even using a poorly-secured wifi system from the street – allegedly downloads copyright materials, and the connection is cut off. That will affect the whole family, and maybe multiple families. Is that just? Are poorer Labour voters going to find this an appealing prospect?
In a sense, I am amazed that the usually cynical Labour government did not simply leave the relatively minor issue of copyright infringement until after the General Election, hoping that somehow it might win, and then dealing with it then. To come out with the half-baked, unworkable and unpopular proposals now seems to evince a real political death wish.
And to those who would point out that these ideas are simply being floated as part of the ongoing consultation, and that we are merely being invited to comment on them as an option, well, I have a bridge you may wish to buy.
The fact that they are being raised at this point, when the previous consultation was practically set in stone, and that they contradict that previous consultation and its careful logic, demonstrates that the government plainly intends to ignore anything with which it disagrees. It seems clear the government – or, rather, Lord Mandelson – has already made up its/his mind, and that U-turn will be enshrined in law as soon as possible.
For that reason, I won't be responding to these new proposals, and suggest you don't waste your time either. The government clearly won't take the blindest bit of notice of what we little people think: it has its orders from the media industries and – for reasons that still escape me – has chosen, lemming like, to follow them off the cliff.
Instead, I shall be writing in no uncertain terms to my (Labour) MP, pointing out all the above points, and asking him to support one of the few government MPs that *does* understand the issues here, Tom Watson, in trying to steer the Labour party away from this total train wreck. But frankly, I am not optimistic.
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