Open Rights Group and Others Try Fixing the Digital Economy Act

Despite the fact that the hugely controversial Digital Economy Act (DEA), a law that ushered in a three strikes law in the UK, the battle to try and at least tweak the law into some sense of reasonableness has been raging up to this day. The Open Rights Group were among many to file submissions to voice concerns that have lingered all these years.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

The UK had been teetering on the brink of a complete collapse in digital rights for quite some time up to the point where the legislation was passed back in March of 2010. Back then, it meant that the UK was going to be getting a three strikes law, web filtering and an all out public ban on public WiFi. At that point, digital rights seemed to be pushed off a cliff. If you were so much as suspected of repeatedly infringing on copyrighted material, that meant you were going to be disconnected from the Internet regardless if you were actually innocent or not. In fact, as if to add insult to injury, some of the idea’s on how to filter the Internet got so extreme since the laws passage, it got to the point where the ideas received praise from China.

However, the passage of the DEA was not the end of the story. After numerous delays, we find ourselves at this point with the different sides of the copyright debate trying to at least tweak the “Initial Obligations Code” – a blueprint of how ISPs should conduct themselves if you will. OFCom, the regulatory body that covers ISPs, opened a consultation process for a second time as it continues to try and figure out how the Digital Economy Act should be enforced in practice. The second consultation process is now closed and one of the many groups to submit something is the Open Rights Group.

On Friday, the Open Rights Group announced that they have posted their submission to OFCom.

One of the main points that continue to be raised were the significant threats the DEA poses to WiFi. From the submission:

The definitions of ISP, subscriber and communications provider leave a number of bodies and organisations in an uncertain position.

In the consultation document, it is argued that cafes, bars, hotels and similar establishments, which are not currently excluded from the Code (henceforth referred to as ‘wifi providers’) have ‘clarity as to whether or not the Code applies to them or will be applied to them in the immediate future.’ (paragraph A5.41)

According to the consultation document, they will be considered an ISP if they have an implied, oral or other agreement with a subscriber. And they will usually be a ‘non-qualifying ISP’, as they are likely to have fewer than 400,000 ‘subscribers’. They will therefore not be subject to obligations, should they successfully communicate to their upstream ISP that they are a non-qualifying ISP.

However, the position is still not clear or certain. The confusion can be summed up by comparing paragraphs A5.40 and A5.53 of the consultation document. Paragraph A5.40 suggests that ‘a very broad range of providers are ISPs for the purposes of implementing the DEA provisions (though they may not be qualifying ISPs)’. Paragraph A5.53 then states Ofcom consider a person or an undertaking ‘receiving an internet access service for its own use is a subscriber…even if they make access available to third parties and, in that regard, constitute communications providers’.

While the issues surrounding WiFi took a large portion of the paper, there were other areas the Open Rights Group addressed such as the evidence standards and the identification of users:

It is critical that evidence standards are high and respected. We appreciate the work Ofcom have done to move to address concerns on this area since the previous iteration of the Code. We do believe that room for improvement remains.

The development of the proposed standards, which Ofcom are sponsoring, should be completed well ahead of the commencement of the evidence gathering, to ensure that Ofcom has a robust standard against which to assess the evidence gathering processes.

The development of the standard should be open to public scrutiny. In particular, we recommend that the contributions of experts in the field of detection online are incorporated. For example, we commend the report from Dr Richard Clayton, ‘Online traceability’, to Ofcom, which clearly sets out the key issues that need addressing for an evidence gathering process to be considered robust.

We suggest that any such process should involve requiring a full download of the relevant file. Actually downloading a file shows it really is the file expected and it really was available from that IP address at that time.

This is, of course, just a sample of what was submitted.

The Open Rights Group also acknowledged others for their submissions to OFCom:

We’re not a lone voice. Consumer Focus call in their submission for the Secretary of State to withhold approval of the Code in its current form ‘because it does not provide legal certainty on reasonable steps or for WiFi providers, business and public bodies which provide internet access to consumers’.

Mike O’Connor, Chief Executive of Consumer Focus said “Ofcom’s draft code does not provide clarity to WiFi providers, businesses or public bodies over who is responsible for copyright infringement carried out through a shared connection. We are concerned that libraries and universities could find themselves incurring significant costs which may result in them deciding to limit internet access. Hotels, pubs and cafes also face legal uncertainty. There is no evidence that significant levels of infringement occur on WiFi networks or the networks of libraries, which provide access to the web for those on low incomes and the 20 per cent of households without internet connection” and that they are “calling on Ofcom produce a revised Code which will respect legitimate consumer rights and help businesses and public bodies to continue to provide internet access to consumers”.

Libraries, universities and other research institutions recently called for Ofcom to address the position of wifi providers, arguing that as it stands, the Digital Economy Act risks ‘forcing public libraries, schools, colleges and universities to limit access to the internet.’

We’ll post more submissions to the Code as we see them.

So, while the battle may have been lost during the passage of the DEA, the war is not over yet in the UK.

Drew Wilson on Twitter: @icecube85 and Google+.

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