David Cameron says he backs “good, clean wi-fi” plans to filter public wireless networks from inappropriate content. Apart from this being a solution to a problem that doesn’t exist (hoards of toddlers plaguing cafes with porn watching), the potential problems are obvious.

Most public wifi networks already have content filters in place, however, and as an example of the sort of things they block, let’s look at the “UK’s largest public-access WiFi hotspot network”, The Cloud:

…continues with examples at #yeahitsabithipster • What’s wrong with “Good, clean wi-fi”?.

It’s not looking good for the Snooping Bill. The legislation is currently being re-written after serious concerns were raised with the first draft, but I’ve got hold of a letter from privacy campaigners which accuses the government of failing to hold the public consultation that was one of the conditions laid down in the damning report that killed off the first draft. The letter, from Big Brother Watch, Liberty, Open Rights Group and Privacy International, expresses fears that meetings between the organisations and Home Office ministers could be used as evidence that ministers have been consulting on the new legislation. It says…

continues at Govt keeps Snooping Bill campaigners in the dark » Spectator Blogs.

I’m not exactly pro-guns or anything like that – am not a great fan, plus those are “American” questions from a British viewpoint – however this YouTube video really makes you think about the future of intellectual property.

If the first minute puts you off, do stick with it; it’s a short video and it’s the latter two thirds which made me think:

Extract:

The government has defined a “relevant publisher” for the purposes of press regulation in a way that seeks to draft campaign groups and community-run websites covering neighbourhood planning applications and local council affairs into a regulator designed for the Guardian, Sun and Daily Mail. Even the smallest of websites will be threatened with the stick of punitive “exemplary damages” if they fall foul of a broad range of torts, encompassing everything from libel to “breach of confidence”. The authors of these proposals should reflect on their remarkable achievement of uniting both Tom Watson and Rupert Murdoch in opposition.

This appears to be the outcome of a botched late-night drafting process and complete lack of consultation with bloggers, online journalists and social media users, who may now be caught in regulations which trample on grassroots democratic activity and Britain’s emerging digital economy. Leveson was meant to be focused on the impact of “big media”. In the end it may come to be seen as a damaging attack on Britain’s blogosphere, which rather than being a weakness in British politics, has proved time and time again that it is a real strength.

via Letters: Botched draft that threatens the blogosphere | Media | The Guardian.

What’s the situation?

You will not believe today’s craziness, but here’s a quick recap of how we got to here:

• There’s the whole Leveson regulation thing, you probably know about that
• Then over the weekend we discovered that Leveson would regulate all blogs
• Then on Wednesday, OpenRightsGroup, Big Brother Watch and Index on Censorship met with HackedOff to try and fix this
• We decided that the best quick fix we could do to save unregulated blogging in the UK was to legally exclude non-business/small-business bloggers from regulation
• Thursday, Big Brother Watch drafted and released a suggested amendment text…
• …and we went looking for a supportive peer to table the amendment in the Lords
• Friday, we got out peer – Lord Lucas – and Guido posted pictures

The synopsis of the amendments:

Any blogger who is legally defined (via the Companies Act)  as a small or medium enterprise, or below, will not face regulation and thereby will not unavoidably risk a huge monetary spanking if they get dragged into court, irrespective of the court’s findings.

So if your journalism-like blogging business is worth less than 6 million quid per annum, you are safe; and if you’re insufficiently journalism-like then you are already basically safe.

Where are we now?

You would think that tabling this amendment would mean that the UK would remain safe for the strange bedfellows of British blogging, that common sense will undoubtedly prevail and that we’d be good, right?

Alas not. The amendments are not being voted on until monday, and by some spectacular mental feat there are a bunch of MPs who believe that the amendments are not a good idea and want the Lords to drop them.

Why?   BECAUSE PARANOIA:

…If this amendment is passed, we are concerned that [BIG NEWSPAPER COMPANY] will somehow avoid regulation by spinning off small subsidiaries to print the actual newspapers, that those will qualify as small-to-medium enterprises, and that they will thereby flout regulation…

It’s an legitimate concern for anyone who is driven to regulate the big newspapers, because we all know that “big media” are a bunch of sneaky bastards who will get away with anything they can.

HOWEVER: because the Companies Act 2006 is not a hastily cobbled-together piece of legislation, drafted in the dead of night by a bunch of vested interests who just want the problem to go away, but is instead a halfway decent piece of proper legislation, the Companies Act has already got this matter covered and all the paranoia is for naught.

Quoth Barrister Francis Davey, in an ORG blogpost:

There is always a risk of gaming with these sorts of provisions, but in the case of the SME definitions in the Companies Act 2006, there is some protection.

Taking “S” companies first. Section 381 defines a small company as one that meets conditions in s.382 subject to various exclusions found in s.384. Those exclusions include being in the same group as a public company. The definition of “group” is pretty robust (and can be amended for anti-avoidance purposes). It means that if one of the large media companies created a subsidiary it could not be an “S” company.

But this only works if you use the definition in s.381 not s.382.

The drafters of the companies act must have decided to define “M” companies differently. Here s.465 is like s.382 – it has no exclusions in it. The exclusions – much like the “S” exclusions – are found in s.467. They too prevent a company from taking advantage of the rules on M companies if they are in the same group as a public company.

But this requires another tweak to the definition so that s.467 is brought in. I think that was the intention but hasty drafting is very error prone.

The message here is that we can exclude small publishers without a significant risk of “gaming”. The Companies Act anticipates this.

So what can I do about this?

Get the message out; tweet your MP, e-mail your MP, talk about it in public, and if you know any peers then ask them if they can vote in the house and for them to support Lord Lucas’ amendment to protect British blogging and freedom of speech. Make sure that the politicians at the top of the heap know this: the Government’s fears of big media companies using Lord Lucas’ amendments to escape regulation are solvable through use of the Companies Act – see the ORG blogpost for details – and if they do not include the amendment then we all lose, for the sake of a paranoid fantasy.

tl;dr – WE NEED THE PRO-BLOGGING AMENDMENTS, FEARS ARE EASILY FIXABLE

So, as noted elsewhere, last night I was at a meeting with HackedOff; my colleague Jim Killock, executive director of Open Rights Group, has written it up with an optimistic perspective.

I am less of an optimist.

It wasn’t a “good discussion” - it was an outright shambles and I was left feeling that the process is being railroaded. Tragically I think even HackedOff are being railroaded. They’ve launched a missile and not all of them were expecting it to fly with such speed, power and arbitrariness, though I feel pretty sure that there’s at least one Strangelovian character amongst them who is waiting to bask in the glory of the nuclear explosion.

Sotto voce I asked one of the HackedOff people whether they’d signed up to regulate social media, and they responded, equally quietly, “It didn’t start out this way…”

Trying to be dispassionate for a moment: it was pretty clear from the HackedOff end of the table that their motivation was all about punishing ill-behaved newspapers and paparazzi magazines – the Daily Mail was repeatedly mentioned – and that they don’t much care about anything else.

That they’ve incidentally regulated the entire Internet is a bit of a surprise to them.

Evan Harris seemed utterly shattered, poor guy, so much so that when I tried to explain:

What’s happened is you’ve created a rule which captures prettymuch every website on the internet, and the “exception” clauses then try to carve-out “legitimate” activities, a whitelist of things which don’t need regulation.

…he responded with something along the lines of:

There are carve-outs and carve-ins…

…and even in retrospect I cannot comprehend what that actually means; it does not address the truth of the kill them all and let the regulator sort them out* approach that HackedOff / the bill is taking.

Last time I remember over-reaching legislation being similarly rushed, we ended up with the Terrorism Act Section 44 which started out as preventing terrorism and ended up as random stop-and-search powers being exercised by the Met on any motorist they felt like bothering.

Some political dog-whistling was attempted – various HackedOff folk kept repeating that “the bad bits are all Tory bits” as if expecting Open Rights Group, Index on Censorship and Big Brother Watch to be some consolidated bunch of lefties whose party alliances would make us back off the pressure a bit; I’m glad to say that nobody blanched at this and we all refocused on “Yes, but you also said that it now has cross-party support so now you have to fix it”.

Back to pessimism: We are probably screwed. HackedOff started a ball rolling, it has now gotten away from them, and they would like to avoid the blame. The best we can probably hope for is some tweaking of the Lords’ amendments, that the Lords amend the bill, that the Commons accept the Lords’ amendments, and that the first website that gets screwed by this has the chops to take the appeal far enough (Europe?) that the whole thing gets revisited.

HackedOff understands this near-impotence which is why Evan was probably quite exasperated by the repeated chorus of: DO YOU GUYS ACTUALLY REALISE WHAT YOU HAVE DONE? – but I cannot find enough sympathy in myself to say that they don’t deserve to be reminded of that occasionally.

My colleague Simon Phipps, also of Open Rights Group’s board, has written thusly to his MP:

I am extremely concerned about the way the Leveson response is being railroaded through Parliament. I see all the main decisions have been made without Parliamentary scrutiny and are about to be introduced with a nod & wink in the Crime & Courts Bill discussion in the Lords on Monday (see http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0137/amend/pbc1371803m.pdf). I’m contacting you directly as time is very short for Alan to act by expressing concern over the lack of due process and the risk of collateral damage.

I’ve discussed this with my colleagues both in my own consulting practice and at ORG. We believe that serious conceptual flaws exist in the language of the amendments, and that unwittingly the Leveson responses – nominally targetting large media corporations – will end up introducing new rules that regulate internet publishing by much smaller entities which were never targetted by Leveson.

As an example, Apple could use these new provisions to chill disclosure of newsworthy product leaks such as http://www.macrumors.com/2011/12/26/2011-biggest-apple-product-leaks/. A company like Monsanto could use them to discourage public criticism of its strategies. Energy companies could use them to threaten and chill coverage of climate change. Perhaps even whalers could use them to silence Greenpeace supporters.

In the amendments and reading NC29, pretty much any web site with adverts or run by someone with a consulting activity could be construed as “in the course of a business” and many bloggers have guests, co-writers and translations that plausibly qualify as “written by different authors”. It’s entirely feasible that a corporation could threaten litigation under these measures to chill discourse. NS5 offers no comfort.

These corporate repurposers don’t have to be right, and it doesn’t even need to go to court to have a chilling effect. With such high stakes, most of us would just fold rather than risk such enormous penalties. As drafted, the amendments create new weapons for corporate litigants that worry me and others greatly.

It doesn’t have to be this way, but the whole response is being railroaded by very narrowly-focussed non-experts with no concern for the collateral damage they are doing. The last time I recall this sort of panic – over the Terrorism Act Section 44 which started out as “preventing terrorism” – we ended up with “random stop-and-search powers being exercised by the Met on any motorist they felt like bothering”.

…and he has also posted a similar template on his blog.  Hopefully his effort will not be for naught, but do remember that MPs do not like cookie-cutting, so if you mail your MP then please be a human being and include large chunks of your own words.

–
* http://en.wikipedia.org/wiki/Arnaud_Amalric