Keeping regulatory hands off the web, a report

Nowadays I am very sceptical about reading government consultation reports. After all, recent events would lead us to believe that consultation and evidence-based advice appears to be systematically ignored by decision-makers, and that the commercial interest will always prevail. So I was almost ready to ignore the report from the All Party Parliamentary Communications Group (apComms) regarding an inquiry entitled “Can we keep our hands off the net?”, which dealt mostly with ISP liability. Respondents were asked five questions, but I am mostly interested in questions 1 and 5, but I will leave the issue of net neutrality to the pros (nod to Daithí and Chris). The first question was:

“Can we distinguish circumstances when ISPs should be forced to act to deal with some type of bad traffic? When should we insist that ISPs should not be forced into dealing with a problem, and that the solution must be found elsewhere?”

The range of responses makes for an interesting read in itself. Many of the respondents adequately pointed out that the UK already has a content filtering system, the often maligned Internet Watch Foundation. Nonetheless, apComms surprised me with very informed conclusions, albeit I tend to disagree with some of them. With regards to filtering bad content, they say:

“50. We are concerned about the amount of “bad traffic” such as spam and denial of service attacks that emerges from some ISP networks. We have noted the reservations expressed to us about ISPs taking action in this area, but quite clearly a great deal more needs to be done in order to reduce the number of end users whose machines are malware infected. Although it is not necessarily the ISPs “fault” that these problems are occurring, they are uniquely placed to detect problems, to notify users, and to disconnect users who refuse to take remedial action.”

This seems sensible, but I’m not sure about just how accurately can ISPs determine whether there is bad content coming from UK computers, be it spam, malware or DDoS. There is not even a clear definition of what constitutes malware, so any solutions are deemed to become unenforceable soon. apComms recommends in paragraphs 51 and 52:

“51. […] Accordingly, we recommend that UK ISPs, through Ofcom, ISPA or another appropriate organisation, immediately start the process of agreeing a voluntary code for detection of, and effective dealing with, malware infected machines in the UK.
52. If this voluntary approach fails to yield results in a timely manner, then we further recommend that Ofcom unilaterally create such a code, and impose it upon the UK ISP industry on a statutory basis.”

Typical UK regulatory approach to technology: self-regulate, or we will issue legislation. I am sure that ISPs have heard this one before, and I am also sure that they are trembling in fear of failure to comply (please note the sarcasm dripping from that last sentence).

apComms then turns its sights towards file-sharing. Or rather, they sort of turn their eyes in that direction, but sort of fail to focus on the problem, much like Sauron seeing through the Hobbits in the Return of the King. The report admits that this is a shifting area:

“56. Turning now to the question of “bad” file sharing traffic. We are only too well aware that since we received written responses in May, and heard oral evidence in July, much more has happened. […]
57. We are therefore reluctant to make a substantial number of further recommendations based on the evidence we received in the Spring and Summer, since it is self-evidently now incomplete.”

This is a bit depressing, it is almost as if these policy-makers throw their hands in the air, and say “we know anything we say is going to be ignored by Peter Mandelson and his ilk.” Nonetheless, they do have some recommendations:

“58. We conclude that much of the problem with illegal sharing of copyrighted material has been caused by the rightsholders, and the music industry in particular, being far too slow in getting their act together and making popular legal alternatives available.”

Did these people said what I think they said? Has someone in government actually managed to understand what many of us have been harping about for the last 8 years? I would scrub my eyes if I could, but the doctor has forbidden me from doing so.

“59. We do not believe that disconnecting end users is in the slightest bit consistent with policies that attempt to promote eGovernment, and we recommend that this approach to dealing with illegal file-sharing should not be further considered.”

I have to applaud this sentence, thankfully everyone with at least two functioning neurons can see that disconnection for file-sharers is a misguided policy by any rational standard.

“60. We think that it is inappropriate to make policy choices in the UK when policy options are still to be agreed by the EU Commission and EU Parliament in their negotiations over the “Telecoms Package”. We recommend that the Government terminate their current policy-making process, and restart it with a new consultation once the EU has made its decisions.”

This is a case where the report went one paragraph further than it needed to. It is unnecessary to point out that the UK cannot fully agree on this policy unilaterally until the EU Telecomms Package comes out. Also, even more consultation after the other consultation? Will the endless cycle of inquires ever end?

I am in two minds about this report (indecisive? moi?). If anything, we have to welcome yet another clear statement against three strikes.