What’s the situation?

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

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.


…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.


A question for @markpack @drjennywoods @julianhuppert @zoeimogen and all #libdem #libdems, please /cc @sunny_hundal

Mark, Jenny, Julian, Zoe:

After your near-exemplary record re: the CCDP / Communications Data Bill and the subsequent realisation that the LibDem grass roots are not always in sync with the parliamentary party, and having on Tuesday night been at a round-table including both Sunny Hundal (edit: LiberalConspiracy) and Mark Ferguson (LabourList) both of whom I consider powers in the choirs of parliamentary angels, I would really like to know:

  1. Does the LibDem grassroots organisation recognise the threats to individual liberties on the internet posed by the current phrasing of the Leveson Royal Charter and associated Bill?
  2. What does the LibDem grassroots organisation think about the same?



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 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 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.

“I’m from the Internet and I’m here to help” – an explanation for those who lack context

This is a clear political philosophy; just extrapolate a bit…

Part I:

Part II:

Meeting with #HackedOff / @HackingInquiry this Evening

Myself and several others met with #HackedOff this evening, re: the Leveson Royal Charter.

I won’t go too much into the details of who was there, what was said and who said what, not because it was painted as Chatham House or anything – I don’t believe that disclosure was even mentioned – but chiefly because I found the whole experience rather fraught and am still too angry.

The key points as I understand them are:

  • Any amendments to the charter and the clauses of whatever bill the charter has been attached to*, need to be tabled by Friday afternoon.
  • The Lords will debate whatever bill the charter has been attached to* on Monday; any amendments they demand will go back to the Commons for consideration.
  • Once the amendments (if any are accepted) are settled and bedded-in, the whole thing will get royal assent.
  • HackedOff spent an awful lot of time explaining that all of the bits of the bill that they thought we would think were the most bad, were chieflyTory bits.
  • Yet they also spent a lot of time arguing that the whole thing had cross-party support and was bound to get royal assent and was essentially inevitable…
  • …and that therefore we should settle our differences and all work together to focus on drafting potential amendments that would forward-guess the future of internet innovation in communication, which we could suggest to the Lords for debate.
  • Oh, and also, HackedOff was in no way responsible for the bill as-drafted. Or indeed the current rush. Honest.  Not their fault at all.

There’s a reason that I don’t like politics and prefer coding.  Coding is clean.  Politics at this level is not compromise, and it’s not about other peoples’ compromises either; it’s more like trying to waft the farts of other peoples’ compromises in a general direction which you hope will be least offensive to people you care about but who will definitely be impacted.

*It has been attached to some-bill-or-other that is being debated in the Lords on monday simply to assure the charter’s passage into law, irrespective of the (ir)relevance of Leveson to the bill at hand. This, apparently, is how law works in Britain nowadays, not unlike in the USA – shoddy legislation is shoehorned into law by parasitic means.

AT&T Hacker ‘Weev’ Sentenced to 3.5 Years in Prison | Threat Level | # But surely here in the UK we are safe? #techcity? #siliconroundabout?

Andrew Auernheimer, 26, of Fayetteville, Arkansas, was found guilty last November in federal court in New Jersey of one count of identity fraud and one count of conspiracy to access a computer without authorization after he and a colleague created a program to collect information on iPad owners that had been exposed by a security hole in AT&T’s web site.

The two essentially wrote a program to send Get requests to the web site.

The controversial case is one of a string of highly criticized prosecutions of security researchers who have been charged with serious computer crimes under the Computer Fraud and Abuse Act, prompting calls for reform of the legislation to make clear distinctions between criminal hacking and simple unauthorized access and to protect researchers whose activities are not criminal in intent.

Computer security researcher Charlie Miller tweeted Monday morning in reference to Auernheimer’s case that any security researcher could be facing the same fate.

via AT&T Hacker ‘Weev’ Sentenced to 3.5 Years in Prison | Threat Level |

Royal Charter or Star Chamber For Stars? | Wild Webmink #leveson #blog #chillingeffects

Of course, the proposals have no regard for this meshed world of creator-consumers. All the thinking revolves around Big Media, so there’s no representation for me or you in the regulatory body it creates, nor accommodation for the realities of the meshed society we inhabit. By including the new meshed world of creator-consumer citizens into this measure intended as a leash for dinosaurs, nothing is achieved in terms of realistic regulation.

But a new, deadly weapon is created to allow the rich to chill and punish any of those creator-consumers who dare to challenge them. When an established publication publishes a diatribe, they provide an umbrella for its author to shelter you from the new threats made available through this new regulatory mechanism. They are already pretty good at shielding authors; as long as they have jumped through the new hoops and behave reasonably, there’s not much more threat here than before.

But when the same writer tweets an opinion, or when I post my opinion about it on my personal blog, this new regulation allows the well-resourced members of the media elite to subject us to weapons tuned for deterring the Murdochs of this world. The penalties involved are out of all proportion to any harm as well as way beyond your and my means even to buy insurance, let alone to pay.

Read more at: Royal Charter or Star Chamber For Stars? | Wild Webmink.

… and calls on the Government to impose sanctions on Twitter until it agrees to fully co-operate with the UK authorities…

Say what you like about Galloway – if you are happy to risk doing so – but where he leads in thinking, others are likely to follow in only slightly watered-down ways.

Session: 2012-13
Date tabled: 14.03.2013
Primary sponsor: Galloway, George

That this House notes that Twitter is now a very widely used mode of social networking; further notes that Twitter is a US-based enterprise whose primary motivation is to maximise its profits; further notes that Twitter is now used for a variety of criminal activities including sending malicious communications; further notes that Twitter refuses to co-operate with the UK authorities in general and the police in particular in trying to detect the source of criminal communications ‘unless it is a matter of life and death’, to be determined by Twitter; believes that this failure to co-operate with the detection of the sources of criminal behaviour is reprehensible; and calls on the Government to impose sanctions on Twitter until it agrees to fully co-operate with the UK authorities and police in the detection of crime.

via Early day motion 1190 – TWITTER AND THE DETECTION OF CRIME – UK Parliament.

HT peter bradwell

#Leveson Royal Charter – Register All The Blogs #allthethings



UK Bloggers & Tweeters: Be aware that the Royal Charter re: #Leveson is also aimed at regulating *you*

I mentioned this last night, but just for the sake of clarity:

Screen Shot 2013-03-18 at 09.11.02

Don’t say that you weren’t warned.

You do know what will happen to you if you are sued and have not signed up to the voluntary regulation scheme? ‘Course you do!