Our first impressions on the Digital Economy Bill 2016. We will be looking each section in more detail over the coming weeks.
Digital Economy Bill 2016
The Digital Economy Bill 2016 was announced in the Queen’s Speech 2016, and has its first reading in the House of Commons this week. It will deliver several policy initiatives that ORG has engaged with over the past two years. Over the coming weeks, we will provide further analysis and campaign around the many issues raised by this far reaching Bill.
The Digital Economy BIll looks like the drawer where all the "fix the internet" ideas that the current government has been considering over the past few years have ended up. Digital rights activists will be busy for some time.
• Part 1: Access to Digital Services
This part of the bill seems the least controversial and likely welcome. The government is introducing a new broadband Universal Service Obligation (USO) of 10Mps and enhancing Ofcom’s powers to demand more transparency and compliance. We will be looking at this part of the Bill to see if there are any potential pitfalls, or improvements that can be presented as amendments.
• Part 2: Digital Infrastructure
This part includes a highly technical series of measures dealing with a range of infrastructural issues, from land acquisitions to spectrum management. There seem to be few digital rights issues.
• Part 3: Online Pornography
This is a very problematic section. After several years of discussions, the government is finally making it compulsory for all porn websites available in the UK to implement age verification. The Bill covers all commercial websites designed for sexual arousal, including materials classified as 18 and not only R18 (the hardcore that must be sold only in sex shops), located anywhere in the world. On demand services are excluded, and there are issues with the definition of commercial, but the intent is to capture as many websites as possible.
A new regulator will be created to deal with this challenging idea. There are very serious privacy and security issues here - the potential data breach of British citizens' porn preferences and credit card details, is a blackmailer's paradise. The mechanisms for age verification are not defined and making this work in a privacy respecting manner will be very difficult, if even possible. Simple mechanisms such as providing a card or inputting a date of birth will not cut it. The Digital Policy Alliance (DPA) has been working behind the scenes with the porn industry and other sectors to try to define an industry led standard for age verification. We have heard some vague ideas about using smart crypto and decentralised trust frameworks similar to the government initiative Verify, but there are no details available.
The main enforcement mechanism appears to be based on the wider “follow the money” approach we see in copyright debates. The regulator will work with payment providers to remove sources of income. It is very unclear how this is going to stop advertising funded websites as porn specialist ad networks may not be easy to get on board. The Bill also includes injunctions, but we need to analyse properly to what extent blocking will be used.
Original proposals to use the existing web blocking infrastructure for the mandatory blocking of all porn websites unless they complied – a whitelisting of age verified sites – seem to have been abandoned. But it is unclear if an aggressive regulator could use the powers in the Bill to block sites. We have concerns that making payment providers a core element of enforcement is part of the slippery slope away from due process and clear state responsibilities in Internet regulation.
• Part 4: Intellectual Property
The penalties for “online infringement” (communication to the public) are being increased from a maximum of two to maximum ten year prison sentence. We ran a campaign during the consultation and it seemed that we had won the argument, but political pressure eventually bypassed the consultation process and other evidence.
Partly in an attempt to deal with headlines that this was “10 years for filesharing", the IPO has rewritten the definition of criminal liability. They told us during meetings that the new definition would make it very clear that ordinary internet users - including filesharers - would not be targeted, and raising the penalty would also mean narrowing its application to real criminals. Unfortunately the final draft appears to be as bad or worse than the original, with a very low threshold of “having a reason to believe” that the right holder will be exposed to “a risk of loss”.
• Part 5: Digital Government
This part of the BIll is the conclusion of the long process of open policy making on data sharing, where ORG has been involved throughout. There are no big surprises there, and we have summarised the issues and concerns in various blogs and consultation responses.
Some of the proposals are not too problematic, such as sharing data to help to deliver winter fuel discounts, but when put together they amount to a massive shift in data processing across government. The safeguards proposed are not always strong enough and are mostly placed in codes of practice of dubious enforceability. Some of the proposals are more worrying. We have raised concerns particularly about the bulk sharing of civil registration data - births and marriages - without any apparent purpose limitation and with thin safeguards.
The proposals to share the data of people in debt across government departments are also worrying as they could affect vulnerable people and may not deliver benefits without changes to how data is handled. Even if governemnt departments know that someone also owes money elsewhere, they cannot cancel or reprioritise the debt. Despite repeated assurances to the contrary, it is hard not to see this new power as connected with the new privatisation of debt collection across government with the Debt Market Integrator. It appears that the bill is creating the data sharing powers to enable policies that have not been properly outlined or discussed.
ORG will be seeking improvements in some areas: tightening purposes, strengthening safeguards and moving these from codes of practice to the face of the bill, and making any reviews proper sunset clauses requiring a Parliamentary reboot, rather than a ministerial nod.
We will also ask for the removal of the disproportionate powers for bulk sharing of civil registration, or at least severe restrictions on their scope.
• Part 6: Ofcom and Other Regulation
An omnibus within the omnibus Bill, this part contains a ragbag of measures around OFCOM, e.g. appeals process; but also apparently the power for the BBC and public service broadcasters to charge Sky and Virgin for retransmission. This is another area where we need further work picking up any issues.
There are also new powers for the ICO to deal with direct marketing and nuisance calls, which seem much needed, but may need improvements.
We will be campaigning on various aspects of the Bill. Get in touch or join ORG if you’d like to get involved.