Further, regarding #HackedOff / @HackingInquiry, @OpenRightsGroup and the #Leveson meeting last night /ht @webmink

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.


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