09.20.09

connection failure: mandelson takes on the internet

Posted in politics, technology, web at 2:39 pm by Rob Fahey

In recent weeks, there has been some fairly solid grassroots inertia gathering behind a campaign against new legislation being proposed by Lord Mandelson, the business secretary. The gist of the legislation is straightforward – it proposes that individuals accused of illegal downloading should, after a certain number of accusations, be disconnected from the Internet.

There are several grounds on which this proposal is mad, bad and downright dangerous. First and foremost, while the details have not been fully nailed down yet, the implication of what has been revealed so far is that users will not be disconnected after being tried for a criminal offence which is proven beyond reasonable doubt – rather, you’ll just need to be accused a certain number of times before it’s decided that you’re definitely guilty and your connection is severed.

This is a brand new step in the abuse of the British legal system by copyright holders. Some of you may recall a series of cases in the past few years where copyright holders employed legal firms with low moral boundaries to send out letters to large numbers of people whom they accused of downloading movies, videogames and so on. (I reported on one of those mass-mailings, which was initiated by game publishers including Atari and Codemasters, for The Times – the story made the front page.)

Those letters were simple legal blackmail. They told the recipients that they had to pay a few hundred pounds, and warned that if they tried to contest this, the legal costs would be much more expensive – so just pay up, and we’ll leave you alone. The reason for this blackmail approach is straightforward – the “evidence” which they had of copyright infringement would probably never have stood up in court. It certainly wouldn’t have stood up in a criminal court, where you have to prove beyond reasonable doubt that your accusation is true – and on a good day, it would have fallen flat in a civil court too. (In Britain, civil courts have a less stringent standard of “proof” – you only have to prove that “on the balance of probabilities” something is true, rather than “beyond reasonable doubt”.)

The copyright holders know this. They know that it’s technologically nigh-on impossible to pin an act of downloading to an individual. Simply standing up and saying “I’ve got a Wi-Fi network” means that anyone within 100 yards of your house could have been responsible – even someone who sat on a bench in the park outside with a laptop – and that’s even before the question of things like spoofed IPs and the likes are considered. Unless you basically catch the person red-handed – raiding their home to find the infringing file sat on their hard drive and their bittorrent client merrily seeding it to the world – you basically can’t prove an act of downloading.

The solution the media industries have found is as straightforward as it is morally bankrupt – if you can’t work with the legal system, bypass it. Instead of having to fight things in the courts, and work with awkward concepts like “evidence” and “proof” and “justice”, they have lobbied the government to give them a system whereby they alone will be allowed to act as judge, jury and executioner. No courts, no police – just a few accusations from the likes of Sony, Disney or Activision and job done – off with his modem!

It’s not hard, of course, to see how a system where punishment is based on accusation rather than proof could be open to abuse. Indeed, it’s not so much a system open to abuse, as an abusive system.

Then there’s the question of the punishment itself – the cutting off of Internet access. There’s a generational issue at play here, I fear. Many people in their fifties, sixties or older – Lord Mandelson is 55, by the way – probably don’t see disconnection as much more than a slap on the wrist. These are people who probably don’t often check their own email or read webpages, who don’t manage their bank accounts or mobile phones or tax affairs online, for whom news stories about online shopping or Wikipedia or iPods seem impossibly exotic and futuristic. The Internet is a luxury, its removal no different to taking away a games console or a child’s toy.

That’s not what the Internet is to my generation – by which I mean anyone under 40, realistically speaking. I’m in the first generation to have grown up with the Internet as a constant presence (I’m a little ahead of the vanguard, since an early obsession with computers meant I was using Fidonet at a tender age), but people ten years older than me have used it for all of their working lives.

To many of us, the Internet is a service almost as vital as water, gas or electricity. It’s not only our primary social tool, it’s our first point of contact with the corporate and government services on which we rely. It’s essential for our work lives, for our lives as citizens – for our finances, our taxes, our democratic rights. It’s our touchstone for research, information and news.

This isn’t restricted to a handful of Internet obsessives. Countless people in the United Kingdom – whole swathes of the population – rely on the Internet for some aspect of their employment, even those whose job doesn’t involve computers in any way. They interact with their banks, their electricity, gas and water companies, their local councils, the Inland Revenue and the wider Government almost exclusively online. Their votes in elections are informed by online information, making it a crucial tool for democracy – and their social interactions with friends and acquaintances are often also carried out online.

Cutting that off is the removal of an essential service – the crippling of an individual’s ability to function as a normal member of modern society. This isn’t taking a toy from a naughty child (or at least, a child accused of being naughty by a biased third-party) – it’s a step back to the medieval concept of taking someone’s hand for being accused of stealing. It’ll cripple them, but at least they won’t do it again, eh?

Lord Mandelson doesn’t understand that, and nor do those who have worked with him on this proposal. (The media companies who urged him into this decision do know this, but why let the basic injustice of the punishment get in the way of protecting profits from their failing, outdated business models?) The proposed punishment in no way fits the crime – bear in mind that if you shoplifted a DVD from HMV, you’d get little more than a caution and a telling-off, despite the actual material losses involved in that crime. Download the same film from the Internet, an act which causes no direct material loss to anyone involved, and you could be cut off from the social, government, civic and financial services provided by the Internet. It’s an insane imbalance.

If you’re reading this, the chances are that you understand. You’re an Internet user. You know how vital it is – how damaging it would be to everything from your career to your social life if it was to be turned off on you. And unfortunately, you’re one of the few people who will ever know the extent of these laws, because the mainstream press – largely owned by the same companies which own the media groups lobbying for these laws – is mostly keeping quiet on this.

As such, you have a responsibility to act. That could be as much as writing to your local MP (they get remarkably little mail – and only a very tiny amount of that is lucid, well-argued and intelligent, so every decent letter gets considered fairly seriously, meaning that you can make a difference), or as little as getting involved in the campaign being waged by the fantastic Open Rights Group, or signing the petition organised by 38 Degrees, which is working with the ORG on the campaign.

Whether Labour is on its way out the door or not, this legislation needs to be killed dead in the water – because it’s much harder to repeal old laws than it is to bring in new ones. Be it just another in the litany of bad bills which Labour have run through parliament, or the sting in the tail from a dying government, this would be a basic attack on liberty, freedom of expression and the rights of consumers and citizens. We can’t let it happen.

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