For the past few months the Digital Economy Bill (DEB) has been quietly making its way through the House of Lords. As is the way of these things, large numbers of amendments have been proposed, their lordships have had a series of mini-debates on each set of issues, and the Government have been busily amending the Bill in an attempt to fix all the things that they didn’t think through properly.

The main thrust of the DEB’s approach to dealing with unlawful file sharing of copyright material has been a “three strikes” policy. That is, should you be detected to be sharing some popular beat combo’s music without permission, then on the first two occasions you’d receive an admonishing letter, and on the third time then you would be subject to “technical measures” (ie: very slow Internet speeds) or disconnection, the latter doubtless annoying the rest of your family as they would be unable to visit DirectGov / keep up their social life / catch-up TV shows / do their homework / avoid being sacked from their work-from-home job!

However, the Government are concerned that this won’t be enough, and that unlawful sharing of copyright material might occur in new ways in future. So in clause 17 of the DEB they set out a scheme for amendment (in ways that would be decided as future circumstances required) of the Copyright, Designs and Patents Act 1988 through secondary legislation.

It is unusual to grant such open ended powers to amend primary legislation, because Parliament would be presented with an unamendable statutory instrument and invited to vote for it — no such SI has been defeated in the House of Lords since 2000, and the time before that was in 1968.

There was an outcry over the breadth of clause 17, and so the Government set out amendments to restrict it — but last week peers voted for an opposition amendment (120A) to have an alternative arrangement altogether, a regime of High Court injunctions that would force ISPs to block websites.

This is such a dumb (and dangerous) idea that it has all the characteristics of a wrecking amendment, added to the Bill just to eat up parliamentary time so that the whole Bill will fall at the dissolution for the upcoming election.

There are so many problems with the new clause that it’s hard to know where to begin.

For an analysis of how the costs regime makes it very likely that ISPs will just block, rather than risking the cost of a court action see this article by Francis Davey (a working barrister).

The next problem is that most ISP blocking is trivial to evade. Although Ofcom reports that 98.6% of UK consumer broadband lines are supplied by ISPs who use the Internet Watch Foundation (IWF) list to block child sexual abuse images, in practice all of the systems are trivial to evade by using https links, by using proxies, or in most cases by running your own DNS server or just hard-coding IP addresses into your HOSTS file.

It suits everyone (IWF, ISPs, Government) to pretend that the IWF list blocking schemes work, but when ISPs are faced with the prospect of being found in contempt of court, they will have to implement something which is actually effective — which can in practice only mean “blackholing” IP addresses so that no traffic can be exchanged.

That will mean that everything else at that address is will be blocked as well — so all of t35.com, smtp.ru or blogger.com would disappear if a foreign company’s view of what was a copyright infringement in their jurisdiction was to differ from that of the UK High Court (for example, Disney’s Snow White is out of copyright in Japan — the term is 75 years from 1937 date of release — but not in the UK — where the term is Walt Disney’s 1967 death + 70 years).

IP address blocking is also relatively simple to evade (as has already been discovered by the citizens of China, Iran and elsewhere), by means of proxies, by IP address agility by the websites, or by means of general purpose anonymity systems such as Tor. When the content industries find that the sites aren’t actually blocked, how realistic (or how draconian) will the High Court be ?

Interestingly, the security services (MI5/MI6) share this concern. If evading blocking systems becomes a mainstream activity (and there’s said to be 6-7 million illegal file sharers in the UK) then it will be used, almost automatically, by subversive groups — preventing the spooks from examining the traffic patterns and comprehending the threat. The amendment says that the court must consider “any issues of national security raised by the Secretary of State”, but it’s unclear how they’ll do that even if Lord Mandelson is prepared to wander down to Strand and say that he’s worried that snooping won’t be so effective in the future.

The final problem is that their Lordships clearly envisaged these injunctions being taken out by major film studios against the latest incarnation of The Pirate Bay or some equally high profile den of wickedness. But what if it turns out that they’re used:

• to block US University websites — It’s common to find otherwise hard to view academic papers on such sites, usually through allowing non-local access to material which is being provided to students under “fair use” provisions;
• to block YouTube — which contains thousands of copyright infringing items; there’s not even any need for a High Court litigant to be the copyright owner, so one aggrieved party could point at all the other infringements to show how substantial the problem is;
• to block access to embarassing leaked documents on Wikileaks or (as Microsoft briefly managed recently under US DMCA provisions), on Cryptome;
• to block access to the next disclosure of unjustifiable Parliamentary expense claims!

The Earl of Erroll who, although a hereditary peer, is one of the few members of the Upper House with substantial “clue” on Internet matters spoke out clearly against the amendment and in favour of just deleting clause 17. Perhaps in Third Reading, next Monday, the House will listen more carefully to what he has to say — sending this Bill to the Commons in its current form makes a mockery of the Lords’ claim to intelligently revise flawed legislation …

… for the real risk is that the Bill could subsequently go through all substantive Commons stages “on the nod” in a few frantic minutes after the election is called, with the Government accepting all the Lords amendments to avoid a time-consuming game of Parliamentary ping-pong. Wrecking the bill is one thing, wrecking the Internet in the UK is quite another!