British civil liberties have been dismantled systematically since 2001. The National Identity Register, biometric passports, the NHS spine, Contactpoint and the Vetting and Barring Scheme are just a few of the most egregious privacy invasions we have suffered.

Our every move is watched with suspicion by the authorities. ANPR systems record every journey we make. Video and audio Surveillance Systems (SS) watch us in every public space and many private ones too. Thousands of public bodies abuse their RIP Act powers to spy on us for trivial reasons. The police can stop us and search us arbitrarily, and they keep “pre-crime” databases on the innocent. Our private communications are monitored, analysed and recorded both by the Government and private companies.

Yet often MPs want one rule for us and another for them. The children of MPs can be “shielded” on ContactPoint to protect their privacy – but ours can’t. Very few MPs have an ID card even though ministers have been doing everything in their power to coerce the public into “volunteering” for them. Many MPs voted to exempt themselves from the Freedom of Information Act, to protect their “privacy”, whilst passing laws that erode ours.

When it comes to liberty in Britain today, all animals are equal, but some are more equal than others. This hypocrisy has to end and the systematic assault on our civil liberties must be reversed.

The Power2010 campaign is conducting a letter writing campaign asking Prospective Parliamentary Candidates to:

…commit that, if you are elected, you will vote to repeal the Identity Cards Act 2006 and will defend our privacy as fiercely as you would defend your own and that of your family.

The above reproduces what I sent to Sheffield Central PPCs. You can take part in the campaign here.

I’m writing to ask you to represent the voice of UK citizens during the passage through the House of Lords of the Government’s Digital Economy Bill.

I am deeply concerned by the measures this Bill would introduce, and given that my MP seems unwilling to represent my views or even to engage with me in a debate about them, I’m appealing to the House of Lords for representation. I chose to write to you as members of the Lords Science and Technology committee in the hope that you will weigh the Government’s proposals against objective evidence, accounting for bias on all sides including my own, and arrive at proportionate and evidence-based conclusions where, in my opinion, the Government has not.

The main issues with the Bill as it currently stands are:

1. Problems with due process procedures and indiscriminate sanctions targeting Internet users accused of copyright infringement.
2. Extremely wide powers to amend copyright law with minimal oversight or scrutiny.
3. Reduntant powers to nationalise Nominet – the body responsible for the .uk top-level domain.

It is the provisions to tackle copyright infringement on the Internet that I find most worrying. The Digital Economy Bill says much about how those accused of illegally sharing copyright material should be punished yet it contains few measures that will actually strengthen the UK economy by enabling digital business to thrive. The digital genie cannot be put back into its 20th century bottle. Copyright infringement is wrong however businesses must adapt to a digital Britain or they will die.

1. Copyright Infringement on the Internet.

Disconnection is not an appropriate sanction for copyright infringement. The damage caused by such a punishment would be indiscriminate and collective, imposed on households or businesses rather than an individual infringer, and could be very severe, hampering people’s jobs, businesses or education. Financial sanctions proportionate to the actual damage caused, against a test of evidence, would be more appropriate.

The standards of evidence relied upon in the Bill are low. Errors in recording such evidence are common, and in any case evidence can never identify an infringer, only an account-holder. However the Digital Economy Bill currently allows punishments to be imposed on people who are merely accused of wrong-doing on the basis of this flimsy evidence. Furthermore, the Bill fails to impose a duty on rights-holders to make sure evidence and accusations are fair and accurate. No mention is made of the roles of libel, malicious falsehood or data protection law.

The Government has attempted to assuage some of these concerns by including an appeals process, however there is no obligation to tell people they can appeal, and no legal aid would be available to help with necessarily technical defences unless the matter went to court (a process that might take years). The appeals themselves do not extend to any discretion exercised in imposing a punishment, which is unreasonable. A right of appeal is not the same as a trial. Appeal presumes guilt – this is wrong. People should be presumed innocent until they are proven guilty, the accused should be allowed their day in court and only people who are proven guilty should be punished.

The government has said that introducing disconnection as a punishment is a last resort however the trigger for the imposition of so-called “technical measures” is open to abuse. Evidence from Ofcom would be supplied but the Secretary of State may order the sanctions into force in view of such a report or “any other consideration”. This would encourage lobbying by vocal rights-holders, such as media content companies with vested interests, to secure decisions that maximise their shareholders’ profits without taking into account objective evidence or the rights and needs of citizens. This may damage the valuable communications sector and discourage music and film rights-holders from innovating towards more sustainable and modern business models.

The Government proposes to introduce “technical measures” if its target of a 70% reduction in copyright infringement is not met within a year. This appears to be an arbitrary threshold. In addition, there are no accurate measurements of the current level of copyright infringement, and the Government has not said how it proposes to test whether its target has been met. An objective quantification of Internet copyright infringement is technically and legally problematic: technically because identifying and classifying all UK Internet traffic as it traverses the Internet would tax the state-of-the-arts of computer science and engineering; legally because firstly the copyright status of works depends on many complex factors so is not easy to determine automatically, and secondly, the Regulation of Investigatory Powers act makes it illegal for ISPs to employ the kind of communications interception required. Meanwhile wildly varying estimates of the cost and prevalence of copyright infringement continue to be circulated by all sides in the debate. The scientific and statistical rigour of these reports is questionable.

I mentioned that the technical process proposed to identify infringers can only trace back as far as the account holder of the connection used. The Bill sidesteps this issue by making account-holders responsible for the actions of others using their connection. This liability will adversely affect many businesses such as Internet cafés, pubs, hotels, libraries, community centres, schools, colleges and universities, all of which share their Internet connections as part of their business models. Many people extend to their neighbours and communities the use of their Internet connections as a public good. The Bill puts all of this activity in jeopardy: it may bring about the end of the wifi hotspot in the UK.

2. Statutory Instruments

The Bill allows the Secretary of State to amend copyright law by statutory instrument. This would create massive uncertainty and business risk for online service-providers with a consequential chilling effect on innovation and investment in the sector. Amending the law by SI will prevent the Lords from scrutinising changes, and by convention, the Upper House does not oppose SIs approved by the Commons. Thus the Government of the day would be able to impose changes to copyright law without proper debate or scrutiny. This would further open copyright law to “special pleading” and unbalanced, politicised decision-making.

3. Nominet

The last provision that I want to bring to your attention grants Ofcom the ability to “nationalise” the .uk domain registry Nominet. This is inappropriate for a functioning self-regulatory system such as the one that currently exists. The proposed power would lend Ofcom an undue and unnecessary influence over this independent body. Existing emergency powers to take control of vital national infrastructure are sufficient. Furthermore the current wording of the provision is so poor that any domain registry operating in the UK would be subject to these powers. The many small countries that operate their Internet domain-registries through UK providers would find them subject to UK control. They would be likely to move their business out of the UK in response.

Conclusions

I believe the Digital Economy Bill has many serious flaws that, if they are not rectified, present a clear danger to the UK economy, the future of the Internet in UK, the freedom of its citizens to express themselves and engage in society, our cultural commons and many opportunities of the digital age that are yet to be discovered.

Please will you represent my views to the House of Lords during the second reading of the Digital Economy Bill tomorrow?

Given the urgency of this matter, perhaps you could also pass on this message to your colleagues on the Science and Technology Committee – Lord Broers, Lord Cunningham of Felling, Lord Krebs, Lord May of Oxford and Lord Warner – who do not list a public email address.

I would also be interested to hear your views on the points I have raised.

Yours Sincerely, etc.

Write to a lord today!

UPDATE 2008/05/14 23:15:

Shortly after this post was published, I received an email from Cardiff Council:

Dear Mr King

I refer to your request submitted on 15th April. I regret that there has been considerable disruption to our FOI service as a result of an accident to our FOI Officer on the weekend of 19 April, as a result of which he is likely to be off work for several months.

(continues)

I assume this message was auto-generated by some kind of script, arriving as it did 37 minutes after the legal deadline for a response, and signed as it was by the “information manager”. I’ve just pinged back a reply to ask when they now expect to be able to send me the information I requested, given the (clearly unfortunate) circumstances.

On a personal note: there have been too many people around here suffering serious injuries lately. Look after yourselves, everyone – I don’t want to hear about any more.

Meanwhile in the real world, following up the story of Poole Borough Council using the Regulation of Investigatory Powers Act to spy on a pre-school child and her family, the BBC reported this week on a survey of local council RIPA use by the Press Association news agency. They have found the law being used by some councils to investigate such important priorities as littering, dog fouling and misuse of a disabled parking badge. (Sightings of unlicensed accordion players with primate business partners remain unconfirmed, but I’m confident that should any be spotted, the Clouseau Councils won’t hesitate to RIPA them into submission).

Sir Simon Milton, Local Government Association chairman, told the BBC,

“It’s wrong to suggest that these are specifically anti-terror powers.”

Then why did the Government sell the laws as being specifically required to combat “serious crime, including terrorism” in the media, in Parliament, and even on the Home Office website?

“There are strict rules to protect people from unnecessary intrusion, and whenever a council applies to use these powers they must prove that it is both necessary and proportionate to the crime being investigated.”

The proportionality test barrier can’t be very high if councils are able to satisfy themselves it’s met in cases of littering.

The article mentions that 19 councils asked for the survey questions to be submitted under the Freedom of Information Act, but it doesn’t list which ones. Fortunately, I have already submitted an FoI request to Cardiff council to find out how my local administration has used the laws since they came into force. I was hoping to discover whether Cardiff was a Clouseau Council in time for the local elections this week, but sadly the mandated one-month turn-around time expires a fortnight after the polls close.

How does your local authority shape up in the cracking-walnuts-with-sledgehammers department? Is this an election issue in your area? Hit the comments link and share your thoughts.

The Regulation of Investigatory Powers bill was sold as being a vital tool in the fight against child abuse, serious and organised crime, and yes, even terrorism. Now that it’s an Act of Parliament, we find it’s actually being used to enforce school catchment areas and target nuisance dog poo. Is wanting the best education for your child a criminal offence? I don’t think so. Not even a little one.

Keith Vaz, the Labour chairman of the Commons home affairs committee, said:

“I am astonished that this very serious legislation is being misused in this way in cases which seem to be petty and vindictive. We have just completed an inquiry into the surveillance society and we have noted that there has been a huge growth in the use of these laws. The people responsible have some very serious questions to answer.”

While I agree councils should have been more restrained, the fact that it’s legal for them to behave like this is the fault of the Government. If it was never the intent for RIPA powers to be used in a “petty and vindictive” way, then why does the legislation allow it? I think the people with “very serious questions” to answer are the MPs who keep passing laws you could drive a bus through.

It is poor civic hygiene to install laws that could someday facilitate a police state. RIPA was supposed to combat bogeymen, not help pettifogging bureaucracies snoop on hard-working families. How can we trust the Home Secretary now as she presses for increased powers of detention without charge internment without a shred of evidence to suggest they’re either necessary or proportionate? It’s not very re-assuring to hear that only suspected terrorists will be interred when the risk of being accused as such is increasing all the time.

Legislators must think much harder about how such laws could be abused, and less hard about what great headlines they’ll make, lest public trust and human rights become things of the past.