I’ve followed (from a distance) the debate on the copyright-related provisions of the Digital Economy Bill. I find the House of Lords debate on such causes unnecessary stress, although I’m somewhat doubtful about the legislation ever finding its way onto the statute book, given the approaching general election and the length that the HL stage is taking (note that this legislation started there, so has yet to even trouble the elected house. However, I’ve been jolted into action by the frankly bizarre response of the Bill’s proposers to the initial criticism regarding the impact of the Bill on wireless/wifi networks. The Open Rights Group sets out the earlier stages of this sub-issue and the most recent developments here, and Lilian Edwards (who has been following it) has already analysed these questions very well indeed. The document referred to in this post is Factsheet B2, available here in .doc.

Now I have a bit of prior interest in this area, and it’s only fair to point it out. I wrote an overview of a bundle of legal issues, published in 2009 here. At the time, I was a little concerned (and mentioned in passing) about this issue of responsibility for the actions of others using the network. It formed part of the broader theme (which was amplified in contemporary press coverage) that wireless networks play an important social role in providing access to underserved groups and thinking about Internet use as something beyond a way in which ISPs make money. I suggested that there might be some conflict between defining the admin of a wireless network as a customer of an ISP (subscriber) or as the operator of another provider (public electronic communications network). There are advantages and disadvantages either way. The Bill, though, seems to take this doubt, refuse to answer it, and throw in some previously-unknown restrictions that I would now argue are a serious threat to the development of open networks that I did not then anticipate. This is not to suggest that I had any great insight – quite the opposite, I feel as if my crystal ball needs an upgrade. That said, on with business.

The current state of play is that the Government is not prepared to consider exemptions. The argument is a rather ignorant one that an exemption e.g. for libraries would lead to abuse of the exemption and even fake institutions taking advantage of it.

We have considered the extent to which an exemption might be provided in the legislation. We cannot give blanket exemptions for any such establishment. This would send entirely the wrong signal and could lead to “fake” organisations being set up, claiming an exemption and becoming a hub for copyright infringement. Similarly existing establishments might simply ignore the issue of copyright infringement (or treat as “too difficult”) and allow users to infringe copyright with effective immunity.

This is a little surprising, given the range of existing special provisions and exemptions in the law for libraries; the Copyright, Designs & Patents Act 1988 contains stacks of them. Presumably on the Government’s new view they should all be repealed forthwith. Great.

Furthermore, it’s also being suggested that operators of open wifi be required to put in place untested, burdensome and potentially pointless restrictions such as peer-to-peer blocking, commercial filtering software, and terms and conditions for users. Registration is also suggested – just like pay-as-you-go mobiles, the intention to have a complete record of users is clear. This is putting in place restrictions that are not currently required under UK law. Filtering software is not a legal requirement in this jurisdiction nor should it be. Effectively requiring it for cafes, universities and libraries – at the very time that we are suggesting that the future is based around Internet delivery of everything from video news to Government services – is absurd. Surely a system like this will lead to an environment where there are fewer open networks and those that remain being crippled. The presumption in the new proposals is that the best network is a closed network – indeed, one idea is that admins be sent instructions on how to secure the network. I am, as I mentioned above, already associated with the anti-closed network view, but I accept that there are complex arguments here. That said, this is something that should be considered in full, rather than as a subset of a subset of a copyright debate. If wireless networks are to be controlled, this should not be achieved through the nod and wink approach of allowing open networks but forcing those who provide them to change the essence of Internet access through the threat of liability for supposed copyright infringement. Given that the Government refuses to say what the status of the wifi admin is, it’s far too early to decide what their responsibilities are, especially when the net result of those responsibilities is a dystopian vision of the version of the Web used in primary schools. I’ll leave the final word to the document, which appears confused as to whether it is a legal proposal, a statement of fear, or a sales pitch for software:

Wireless connections are harder to secure. It is straightforward to limit use to only authorised users – via a password or by registering the PCs that can access. Access might also be limited to particular times of the day. Preventing authorised users from miss-using a connection is more difficult. One option is to route all traffic via a proxy server which does not support or allow (eg) use of file-sharing technologies. Another is to place similar restrictions on the router.
The “Get Safe Online” website (http://www.getsafeonline.org/) – supported by HMG and Ofcom – lists three companies who provide filters and software which can block or filter content and who can also block the use of P2P programmes: Cybersitter, Net Nanny, and Cyberpatrol.
It also provides a link through to other sites such as GetNetWise.org which lists and evaluates a wider range of products including BSafe, Safe Eyes, ChildSafe and Cybersentinel.
These products typically cost in the region of US$40 (about £30) and allow the user to block the most popular P2P applications such as: Bit Torrent, eMule, Gnutella, Kazaa, Morpheus, and Limewire.