I’ve written to my MP today to ask for his position on the issues raised by the green paper. I’ve also asked that he challenge Ed Vaizey and the Department of Culture, Media and Sport (DCMS) to open up their opaque round-table discussions on the Bill, which have thus far excluded all but one set of stakeholders. The government is making choices behind closed doors that will effectively carve up digital power between private interests. Citizens and human rights lack representation in this policy-making process yet if we act quickly we can change the direction of this legislation before any politicians have to make a “U-turn”. Why not write to your MP today and make your own views known?

In my opinion, and that of a great many other technical experts, the proposals are risible and cannot hope to achieve their stated objective of reducing illicit online file-sharing. Meanwhile they will cost billions to implement – costs that will be passed on to householders and businesses – and will reserve to a few corporations monopoly control over our online experience. (I suspect this last point is the real objective of the legislation!) The Government seems to think the world-wide web is a content distribution system, similar to television, whereas in fact it’s a communications network like the Royal Mail or the telephone. It is nonsensical to try to regulate the latter class of systems in the same way as the former. Imagine how daft Ed Vaizey would sound if he proposed steaming open all our letters to check whether we’re sharing photos in violation of copyright law, or tapping everyone’s phone calls to ensure we’re not using trademarked phrases in a way that might mislead our audiences!

Perhaps the worst effect of these proposals would be the extent to which they would violate our right to privacy and freedom of expression. Automatic censorship requires surveillance, because ISPs and search engines would have to examine every webpage request we make in order to check whether we’d asked for one of the blocked sites, which would be a gross invasion of privacy. Secondly, since filtering systems are notoriously inaccurate, the owners and users of many legitimate websites would have their speech censored arbitrarily. Redress for this might prove difficult to obtain since the proposals include replacing court oversight and due process with industry-led self-regulation.

The Open Rights Group have been trying to participate in the round-table discussions being held by DCMS yet it seems their views are not welcome there. I understand they were involved initially but have been excluded subsequently. In order that we can all trust and rely on the resulting legislation the DCMS must commit to a more open and transparent process from now on. How does Mr. Vaizey intend to ensure public confidence in the Government’s copyright enforcement regime? Will he commit to setting out a clear consultation process, being transparent about with whom the DCMS is meeting and in what capacity, and ensuring that all stakeholders receive a fair hearing? Will he end the private round-table discussions that prioritise one set of stakeholders and invite organisations such as ORG to participate again? Will he commit to basing copyright policy on evidence not industry spin? Enquiring netizens need to know!

Speaking as one who lobbies in a volunteer capacity I’m strongly in favour of transparency and I have another axe to grind too: equality of access. It’s much harder for individuals and small groups to get their voices heard at the closed, secretive round-table discussions at which Whitehall policy is often developed.

The consultation details are posted on the Cabinet Office website. If you want to add your voice don’t hang around as the consultation closes on Friday 20 April. If you don’t have time to respond directly there’s a tool at Unlock Democracy you can use to make a quick contribution.

What follows is the essence of my response. The quotes are from the consultation document. I’ve only commented on the bits I think need to change.

How should lobbyists be defined?

Lobbyists should mean those who undertake lobbying activities on behalf of a third party client or whose employees conduct lobbying activities on behalf of a third party client. It may also include certain other categories of person following consultation. It should not mean those who engage in lobbying activities on their own behalf rather than for a client.

This definition is inadequate because it excludes the majority of the industry: lobbyists who lobby full-time on behalf of their employers rather than for third parties. I believe the definition should include all paid lobbyists: those working on behalf of clients as well as those employed by companies, trade bodies, business groups, trade unions and large charities. Staff and firms working on a pro-bono basis should also be included because the aim is to make lobbyist influence transparent, and influence is not necessarily the same as spending.

Information to be included on the register

The information on the register should consist of the company registration details; the names of those persons employed, contracted or otherwise engaged to carry out lobbying and whether that person is a former Minister or senior civil servant. The information should also include a list of clients on whose behalf the lobbyist carries out lobbying activities. The information might also include limited financial information.

The proposed information to appear on the register is insufficient to make it useful. In order to understand how lobbyists influence policy we also need to know the topics on which each lobbyist is making representations, how often they’ve had an audience with the Government on each issue, when those meetings took place and the amount of money being spent by each company (or individual).

[The information on the register] should not include details of meetings with Ministers, which are already made available by each Government Department on www.data.gov.uk.

The Government already publishes quarterly information about Ministers’ meetings. Information about which stakeholders are meeting Ministers to put forward their views on policies is therefore already in the public domain.

This is insufficient without also publishing the details of what those stakeholders discussed with the Ministers. It gives carte blanche to lobbyists working for large organisations, which can have a full range of interests, to lobby opaquely leaving the public to make vague assumptions about what’s going on.

Scope

A register should include those who lobby the UK Government and UK Parliament.

I think local councils should be required to maintain and publish similar registers as much murky influence is wielded by lobbyists at the local government level too.

Other comments

The register is not intended to cover the normal interaction between constituents and their MPs.

I agree with this point however I would prefer the line to be drawn significantly closer to this thin end of the wedge than is currently proposed.

Nor should the essential flow of communication between business leaders and Government, civil figures, community organisations and Government and so on, be included.

There’s no justification given for this decision and I don’t agree with it. If influence is being sought through these channels then it should sought transparently. We must avoid allowing lobbyists to obscure their their operations by fronting them through organisations that are technically outside the register’s scope.

The Government does not wish to create an obstacle to necessary interaction with policy makers or an undue burden on those who work as lobbyists or employ lobbyists.

In my opinion the extensions I’ve suggested would not impose any further obstacle for professional lobbyists than the existing proposals would.

To ensure universal access the register must be published in a machine-readable format compatible with the European Interoperability Framework definition of an Open Standard and licensed under the Open Government License.

In my opinion making lobbyist influence transparent is only half the battle towards an evidence-based policy-making framework in which all stakeholders are represented equally. The other half of the job is to ensure robust and meaningful public-interest representation during the legislative process. Lobbyists and commercial interests should no longer be allowed to hold opaque round-table discussions with minsters without seats at the table being made available to relevant public and consumer-interest groups too.

This session was on the Communications Capabilities Development Programme Green Paper. At the time this was due to be published imminently however nobody had yet seen the details. The Government had held discussions with various stakeholders, though, and some information had begun to emerge – not all of it good!

On Sunday 1 April the Government released further details of their plans to the press (and our suspicions that they’re not good were confirmed!). I’ve posted a round-up of relevant links on my delicious account.

The panel consisted of Pete Bradwell (campaigner at the Open Rights Group), Jeff Lynn (chair of COADEC) and Theo Bertram (UK policy manager at Google UK). The session was chaired by Alec Muffett.

Theo Bertram’s introduction

Jeremy Hunt recently gave a speech in which he identified “four pillars” (presumably in the fight against illicit sharing of copyright material without a license): payment processes, advertising revenues, ISP blocking and removing sites from search indexes.

In addition rightsholders have proposed a search-engine code of conduct. There are three main areas with which Google has issues. These can be summarised by the phrase “legal sites first.”

Legal: The government thinks Google is the internet and is magical. They think that binary instructions can decide whether something is legal or illegal in a nanosecond. This whole language about “legal” and “illegal” websites is already worrying. There is only copying that infringes copyright and copying that does not. Even if Google can recognise copyrighted material it can’t tell whether a copy of a piece of content is licensed. In fact judges often find this a difficult determination to make. Google can’t be a judge.

Sites: at the moment Google removes URLs from its index if they contain infringing content. The DMCA means rightsholders can remove, in theory, every page from the net as long as every page contains infringing content. What the government wants is for Google to remove whole sites – not just pages. Necessarily this means they want to remove non-infringing content! If site-level blocking is required surely there must be judicial oversight?

First: rightsholders would like their sites to appear at the top of search results for terms associated with their content. They want Google to push the “good” sites up and the “bad” ones down. This just isn’t possible. Google can’t identify good and bad. Also, if we’d had only a small cabal of approved sites listed in search rankings four years ago, YouTube would never have made it up the rankings. There would never be a British iTunes. It would be totally anticompetitive. We would also never have another artist become successful by being spotted from a pool of unauthorised talent – successful acts could only come from within the club not without.

We need to pick our moment and be careful of crying wolf – if we say this is the next SOPA, and it turns out not to be, we’ll lose credibility.

Jeff Lynn’s introduction

I’m the chair of the coalition for a digital economy. We represent the tech city, silicon roundabout startups. We help to support conditions for the creation of the next big internet properties.

The UK is a great place to grow a business. Great things will happen here so long as the Government doesn’t stop them. The government must understand the conditions that are required for success.

The fact that we don’t have the green paper in front of us today is an encouraging and interesting sign. It’s been expected since December and it’s slipped a lot. It was supposed to come out alongside the budget but there’s a view that now the local elections are coming up we won’t see it until May. What seems to have happened is that the government has listened to a few prominent campaigners. They don’t want a SOPA like situation – which activists were threatening based on an early draft.

The mood two years ago was that the government wasn’t listening to us. The fact that Number 10 is now paying attention is encouraging however we haven’t won yet and we’re nowhere near winning the understanding of government or rightsholders.

Talent moves – if the UK gets it wrong business will move.

We’re happy with the current direction of travel but there’s still a long way to go.

Pete Bradwell’s introduction

ORG has been campaigning for about a year against the closed round-table discussions being chaired by DCMS. We’re concerned about the lack of open policy-making and evidence based policy.

The government is making choices behind closed doors that are effectively carving up digital power between private interests. Citizens and human rights lack representation in this policy-making process.

This situation risks conflating good policy with the needs of the private interests in the room. It’s also anticompetitive. It hands decisions about what we’re allowed to do online to business. It also risks endemic censorship, adding a hidden layer of for-profit power betweeen citizens and the state, undermining what’s so promising about the open potential of the net.

What sort of due process should be involved when rightsholders make an accusation? What redress do site owners have when their sites are blocked or if they’re told to take down content?

It’s critical to keep making arguments about why these loose and vague discussions, and these secret meetings, are bad.

Questions

• The main issue is cooperation between ISPs and content industries. Google and other companies are already going in this direction. If there is no intent to profit then sharing shouldn’t be illegal. When will Google step up and say this?

  Content ID is softwhere on YouTube that automatically recognises that a piece of uploaded content is music or video and allows rightsholders to notify Google that this is their content and it should be taken down. It still follows the process laid down in law – it’s just more automated. Rightsholders don’t complain about YouTube any more because in some cases it makes them more money than iTunes!

  Key is for rightsholders to monetise distribution streams not stop them!

  Google supports all of the exceptions in Hargreaves.

  Tactics need to be considered – we’ve made lots of progress through level-headed and calm education. There’s not nearly as much opposition in government as COADEC expected. It’s a process of informing and explaining and reasoning with legislators. Ideological approaches don’t help our cause as much.

  Consumer focus have created the rights alliance to try to find middle ground between consumers and artists.

• Judicial involvement is easy to demand however if nobody is nobody paid to defend the public interest in an aversarial hearing then not all the arguments will come out in court and decisions won’t be balanced. In Newzbin, BT have been penalised for pressing too hard against the case for blocking, and have been slapped with a large costs order. Is there not a case for a statutory tribunal rather than judiciary?

  One of the frustrations with not being involved in the discussions, which are closed, is that those sorts of perspectives can’t be expressed and considered by legislators.

  No assurances received that “streamlined process” != “kangaroo court”.

• There is clear support for the idea that all non-commercial copying should be legal. Isn’t it the case that the vast majority of copying objected to by rightsholders is non-commercial? Surely this would be a thumping great exception rather than a small issue.

  Difference is whether it displaces consumer activity.

• What can we and ORG do to ensure ORG is in the room when these decisions are made?

  Talk to MPs. Try to convince them that the things we’re saying aren’t anti-copyright or in Google’s pocket etc. Explain the truth.

  Continue to press the case that this needs to be evidence based, open and transparent. Ensure the whole process is transparent. We need to open up the process so that other people can contribute.

• If a court decides that a URL links to tortuous or infringing material, do we think removing its URL is a proportionate response?

  Google already does this and it’s automatic. Applies by country on the appropriate services according to local laws. There is nothing magical about the Internet when it comes to Law. Concerns come when people say the Internet needs to be treated differently.

  Not a good idea in principal to solve a problem by reducing its visibility.

The tell-tale signs are everywhere. You can see them in our buildings and our transport networks. You can read them in your morning paper. You can hear them echoing down the corridors of Whitehall. Galvanised by fear whipped up by the media, to which our politicians pander persistently in pursuit of power, we’ve changed our society into one where nobody dares take a decision. We live in a post-accountability world where bureaucracies ruin lives for the want of someone – anyone – displaying a bit of courage or leadership or common sense.

Nowhere is this illustrated more starkly than in the case of Paul Chambers.

In the snowy depths of January 2010 Paul sent a message of frustration to his Twitter friends when he discovered the weather could affect his travel plans: “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together or I’m blowing the airport sky high!!”

A member of staff at Robin Hood Airport saw the tweet because they were searching Twitter for their employer’s name (goodness knows why). They judged it to be harmless, but reported it anyway, presumably so their ass would be covered if it turned out to be otherwise; and anyway, it didn’t cost them anything personally, so why not? Especially since the consequences of inaction might have proved career-limiting.

I imagine similar thinking drove the airport security team’s decision to tip off the police about the message, or rather, their decision to make it their policy to report every tip-off they receive no matter how improbable it seems. After all, it would have been no skin off their noses to include Paul’s tweet in their routine report, and the consequences would have been unthinkable if they’d failed to mention something that might, just might, have been important. Same with the police: it’s no problem for them to investigate any possible threat. They could have decided Paul’s tweet was a foolish act of bravado, yet if they had declined to act and something bad had happened, it would have been be their responsibility. Far be it for the police to take responsibility. That’s what the Crown Prosecution Service is for, right? Wrong.

At least when cases like this are blown out of proportion by a bunch of jobsworths, they’re usually set straight by the courts, aren’t they? Not this time. This was ass-covering at it’s finest, all the way down the line. Paul was convicted of sending “a message or other matter” which is “grossly offensive or of an indecent, obscene or menacing character” by means of a “public electronic communications network”. His fine currently stands at £384 plus £2600 in costs. He’s been given a criminal record and has lost two jobs as a consequence.

This is bigger than one man’s misguided message. Other tweeters have been arrested under section 127 of the Communications Act 2003 since Paul’s conviction, which was upheld unequivocally by Doncaster Crown Court last Thursday, and those people are still waiting to learn their fate. The chilling effect this ruling could have on freedom of expression is no laughing matter.

This is how the War on Terror has ended. Not with the capture of Osama Bin Laden and the routing of Al-Qaeda. Not with world peace nor by treating each other as we would wish to be treated. Instead, it’s ended with innocent people looking over their shoulders, thinking twice about what they say online and being thankful for every day they escape the dreaded knock that could ruin their lives.

There may be hope yet. Paul and his legal team are considering whether to appeal to the high court. Nobody would blame Paul if he decided to draw a line under this sorry affair and turn his energy towards rebuilding his life. If he decides to continue though (and I hope he does) he deserves our full support.

That’s why some of us are having a rally in Sheffield, tomorrow, to express solidarity with Paul, to protest against his conviction, and to champion the cause of free speech on the Internet.

If you fancy joining us the information you need is here: http://bit.ly/jokesontrial – but be quick. You’ve got less than 24 hours to get your shit together, and if you don’t make it, I’m gonna blow you sky high!!!!1

Your search terms are highly sensitive and very private. They are also uniquely identifiable. Examining what you search for can reveal deeply personal facts about you, such as your online reading habits, medical history, finances, sexual preferences and political affiliations.

A database of search terms, linked to subscriber accounts, would be a clear violation of the privacy rights of everyone who uses the Internet in Europe.

I’ve written to my MEPs urging them not to sign Written Declaration 29 and to withdraw their signature if they have already signed. You should do the same – it takes two minutes through writetothem.com

Here’s my letter (but, as always, please use your own words for maximum effect).

Dear Timothy Kirkhope, Edward McMillan-Scott, Andrew Brons, Godfrey Bloom, Diana Wallis and Linda McAvan,

Written declaration 29 [pdf] calls on the European Commission to extend the data retention directive (2006/24/EC) to Internet search-engines. If this were to happen all private searches done on Google et al would be monitored. I feel this would be an intolerable violation of article 8 ECHR privacy rights.

Written declaration 29 is being marketed within the European Parliament by using an emotionally-loaded picture of a child and talking about the need to set up an ”early warning system” to combat child abuse. Laudable though that aim is, as a technical expert it’s my opinion that these measures cannot achieve it, and the marketing is therefore misleading. Some MEPs have already said they feel they have been misled into signing the declaration because of the way in which it was presented to them.

If the declaration is adopted the names of the signatories will be made public.

If you have signed written declaration 29 and feel you have been misled I urge you to withdraw your signature.

Christian Engström MEP has published more information on his website.