Barrister Francis Davey has examined clause 11 of the Bill and
believes that it puts extraordinary powers to control the
information available to UK internet users in the hands of the
Secretary of State for Business, Innovation and Skills, currently
Lord Mandelson.
The Department of Business, Innovation and Skills (BIS) has
rejected the interpretation of the law, claiming that the EU's
E-Commerce Directive prohibits the activity described by Davey.
"Clause 11 gives the Secretary of State the power by minsterial
order to make any ISP [internet service provider] to take technical
measures against any subscriber," said Davey.
This clause has been widely read as being designed to allow the
disconnection of copyright-infringing file sharers, but Davey said
its application could be far wider. "Nothing it says has anything
to do with copyright infringement or even wrongdoing by the
subscriber," he said. "The Secretary of State could use this to
order ISPs to block access to a website or to certain kinds of
files."
The Digital Economy Bill has been controversial because it gives
the Secretary of State powers to order ISPs to take 'technical
measures' against subscribers, such as disconnecting the access of
those accused of illegal file sharing.
Davey is a barrister with a background in IT and specialises in
computer and internet law. His analysis could lead to even further
controversy about the Bill. He said that he does not believe that
the clause is a deliberate attempt to control access, but he said
that if it passes into law it will inevitably be used in that
way.
"My suspicion is that this is not an intentional power grab,"
said Davey. "I think that it is just bad drafting. Whoever was
doing it, rather than think of a subtle and complicated power that
had the right effect, they have just given the broad power that
would allow the Secretary of State to do what was needed."
"But we know from other laws that when a power exists it finds a
way of getting used," said Davey. "Look at the asset freezing
powers of anti-terrorist legislation. They were used to freeze the
assets of [Icelandic bank] Landsbanki. Now that upset a lot of
people in Iceland, but when you went back to the legislation it
actually didn't say anything about that power only being used
against terrorists."
A spokesman for BIS said that it had drawn up the legislation
only with filesharing in mind.
"It is clear from clause 11 and the Bill as a whole that
technical measuers are for the individual infringer and can't be
applied at the network level," he said. "At the network level the
law has to comply with the E-Commerce Directive."
The Directive, which became UK law as the E-Commerce
Regulations, absolves ISPs of liability for illegal material on
their networks as long as they do not know that it is illegal. It
also absolves them of the duty to monitor networks for illegal
activity.
"The Directive says that we can't draft legislation that imposes
a general obligation to monitor networks," said the spokesman. "And
this network level activity would require ISPs to monitor websites
on their systems."
Davey said, though, that while the E-Commerce Regulations and
Directive do prohibit the passing of laws that require ISPs to
monitor activity, this is different to what concerns him.
"What you can't do is require an ISP to look at the traffic
going over its network and find certain content. But if an ISP is
asked to block an IP address they can do that," he said. "Blocking
is not monitoring."
Davey also has concerns about the lack of restraints on the
powers in the Bill. "It is slightly unusual because of its breadth
and the fact that there is no right of appeal or obligation to
publish the notices or to go through Parliament," he said.
A person affected by an order can appeal the basis of an order
but not the order itself, he said. This means, for example, that if
their access was cut off they could claim that they did not conduct
illegal file-sharing but could not appeal the nature of the
Secretary of State's action, i.e. the cutting off of internet
access.
Ofcom will operate a Code of Practice in relation to the powers,
but Davey said that Ofcom will not be able to restrain a Secretary
of State's use of the powers.
"Ofcom governs the use of the power but can't inhibit it," he
said. "The Code of Practice allows certain things to be put in it
by Ofcom but it allows the Secretary of State to put things in as
well."
The BIS spokesman disagreed, saying that the Bill says that
"Ofcom has to consult" on powers, and that the first time the
Secretary of State wants to use the powers secondary legislation
will have to pass through Parliament. He conceded that after that
Parliament did not have to be consulted on their use.
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