net.wars: Drafting the DCA was a three legged race

by Wendy M Grossman | posted on 30 July 2010

"If you are going to do this damn silly thing, don't do it in this damn silly way," Sir Humphrey Appleby tells Jim Hacker in a fit of unaccustomed straight talking.

Wendy M Grossman

We think of this often these days, largely because it seems as though lawmakers, having been belittled by impatient and malcontent geeks throughout the 1990s for being too slow to keep up with Internet time, are trying to speed through the process of creating legislation by eliminating thought, deliberation, and careful drafting. You can see why they'd want to get rid of so many civil servants, who might slow this process down.

In that particular episode of <i>Yes, Minister</i>, "The Writing on the Wall" (S1e05), Appleby and Hacker butt heads over who will get the final say over the wording of a draft proposal on phased Civil Service reductions (today's civil servants and ministers might want to watch episode S1e03, "The Economy Drive", for what their lives will soon be like). Hacker wins that part of the battle only to discover that his version, if implemented, will shut down his own department. Oops.

Much of the Digital Economy Act (2010) was like this: redrafted at the last minute in all sorts of unhelpful ways. But the devil is always in the details, and it was not unreasonable to hope that Ofcom, charged with defining and consulting on those details, would operate in a more measured fashion. But apparently not, and so we have a draft code of practice that's so incomplete that it could be a teenager's homework.

Both Consumer Focus and the Open Rights Group have analyses of the code's non-compliance with the act and a helpful online form should you wish to submit your opinions. The consultation closes today, so run, do not walk, to add your comments.

What's more notable is when it opened: May 28, only three days after the State Opening of the post-election parliamentary session, three weeks after the election, and six weeks after the day that Gordon Brown called the election. Granted, civil servants do not down pencils while the election is proceeding. But given that the act went through last-second changes and then was nodded through the House of Commons in the frantic dash to get home to start campaigning, the most time Ofcom can have had to draft this mish-mash was about six weeks. Which may explain the holes and inadequacies, but then you have to ask: why didn't they take their time and do it properly?

The Freedom bill, which is to repeal so many of the items on our wish list, is mute on the subject of the Digital Economy Act, despite a number of appearances on the Freedom bill's ideas site. (Big Brother Watch has some additional wish list items.)

The big difficulty for anyone who hates the copyright protectionist provisions in the act – the threat to open wi-fi, the disconnection or speed-limitation of Internet access ("technical measures") to be applied to anyone who is accused of copyright infringement three times ("three-strikes", or HADOPI, after the failed French law attempting to do the same) – is that what you really want is for the act to go away. Preferably back where it came from, some copyright industry lobbyist's brain.

A carefully drafted code of practice that pays attention to ensuring that the evidentiary burden on copyright holders is strong enough to deter the kind of abuse seen in the US since the passage of the Digital Millennium Copyright Act (1998) is still not a good scenario, merely a least-worst one.

Still, ORG and Consumer Focus are not alone in their unhappiness. BT and TalkTalk have expressed their opposition, though for different reasons. TalkTalk is largely opposed to the whole letter-writing and copyright infringement elements; but both ISPs are unhappy about Ofcom's decision to limit the code to fixed-line ISPs with more than 400,000 customers. In the entire UK, there are only seven: TalkTalk, BT, Post Office, Virgin, Sky, Orange, and O2. Yet it makes sense to exclude mobile ISPs for now: at today's prices it's safe to guess that no one spends a lot of time downloading music over them. For the rest…these ISPs can only benefit if unauthorised downloading on their services decreases, don't all ISPs want the heaviest downloaders to leech off someone else's service?

LINX, the largest membership organisation for UK Internet service providers has also objected (PDF) to the Act's apportionment of costs: ISPs, LINX's Malcolm Hutty argues, are innocent third parties, so rather than sharing the costs of writing letters and retaining the data necessary to create copyright infringement reports ISPs should be reimbursed for not only the entire cost of implementing the necessary systems but also opportunity costs. It's unclear, LINX points out, how much change Ofcom has time to make to the draft code and still meet its statutory timetable.

So this is law on Internet time: drafted for, if not by, special interests, undemocratically rushed through Parliament, hastily written, poorly thought-out, unfairly and inequitably implemented in direct opposition to the country's longstanding commitment to digital inclusion. Surely we can do better.

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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).