Sunday, November 22, 2009

UK "Pirate Finder General" law innocuous now, could get ugly; Ars Technica, 11/22/09

Nate Anderson, Ars Technica; UK "Pirate Finder General" law innocuous now, could get ugly:

Just two days after the Queen announced that an online copyright enforcement bill was coming, it landed in the House of Lords. It has no sanctions, no "three-strikes" rules, and no fines—but it gives one official the power to levy them at any time in the future.

"The Queen announced on Wednesday that her government would deliver Internet piracy legislation; today it arrived in the form of the massive Digital Economy bill meant to modernize the UK's approach to everything from copyrights to broadband to video game ratings to domain names. The bill contains no sanctions against suspected P2P file-swappers, but it introduces a "reserve power" that can be deployed whenever the Secretary of State feels that it's time to bust out the switch and administer some beatings.

The bill implements the Digital Britain report, which was completed earlier this year and attempted to chart a course forward for Britain in a high-tech world. It initially imposes two obligations on ISPs: they must forward warning letters from copyright holders to their subscribers, and they must maintain an anonymized list of the number of such warnings received by each subscriber. If a copyright holder asks, they must be shown the list, at which point the rightsholder can go to court and seek to uncover the names of the top offenders, and then sue them.

There are no sanctions, but such sanctions could be coming. The government has written "reserve powers" into the law that can be deployed at a later date without needing Parliamentary approval. What powers are those? Here's how the bill describes them:

"The Secretary of State may by order amend Part 1 or this Part for the purpose of preventing or reducing the infringement of copyright by means of the Internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur."

In other words, whenever the Secretary of State decides that speed throttling or Internet disconnections are a good idea, he can implement them with a simple order. The government insists that such power will be introduced only against the "most serious infringers" and only "in the event the initial obligations do not prove as effective as expected."

Public outrage
But the prospect is clearly on the table in this bill. That has kicked up furious opposition since the idea was floated back in April; public opinion was so against the idea—which came weeks after current Secretary of State Peter Mandelson vacationed with media mogul David Geffen—that the government had to publish a response called "Filesharing: some accusations and some answers."

Clearly sensitive to public outrage, the drafters of the Digital Economy bill go out of their way to explain that "introducing account suspension is by no means a given. If the initial obligations prove as effective as we expect, we will not need to introduce technical measures… We recognize that there is some concern over the proportionality of this measure [disconnection], and so we will ensure that the interests of consumers are properly recognized."

This is very much a "take our word for it" approach, since the bill does not appear to contain such safeguards. Indeed, the Secretary of State is given broad powers to give or remove rights and even to impose fines of his or her own choosing.

But there are two safeguards; the idea that the bill suddenly creates a totally autonomous Pirate Finder General who can go on a crazed seek-and-destroy mission and implement any rules he or she chooses has both a political and a Parliamentary limit. The political limit is that the bill requires any new order drafted by the Secretary of State to first be put up for public comment."

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