Dear Andrew Turner,
Following the passage of the Digital Economy Bill from the House of Lords to the House of Commons, I am writing to you again in order to express my concern at both the current state of the bill and, to quote the Earl of Erroll, the “unethical” way in which it is being passed into legislation (Hansard 15 Mar 2010 : Column 464 ( http://www.publications.parliament.uk/pa/ld200910/ldhansrd/text/100315-0004.htm ).
As you proudly state on your website http://www.islandmp.org: “First and foremost I am the Island’s representative at Westminster, scrutinising parliamentary bills, working to shape legislation to improve the lives of all my constituents and holding the government to account.”
Question: do you think it is right that as a member of the House of Commons, you will be limited in your ability influence the passage and content of this bill?
Question: I would like to ask you to detail the extent to which you are and/or will: a) scrutinise the bill and b) hold the government to account about the way in which it passes bills such as the Digital Economy Bill into law apparently without respect for due process.
Question: what steps will you take personally to demonstrate support for other members who are interested in scrutinising and influencing this bill, as well as those who wish to speak out about what is widely believed by industry members and and interested parties such as myself to be an example of bad (proposed) legislation?
As to the bill itself, I would like to ask you:
Question: whether you have you read it and formed an opinion about the consequences of passing into legislation the bill as currently drafted?
For example, regarding the amendment to Part 1 of the Copyright, Designs and Patents Act 1988, in particular the insertion after section 97A of:
“97B Preventing access to specified online locations for the prevention of online copyright infringement The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.”
my reading of this paragraph is that sites such as Youtube or flickr that encourage user contributed content under a post-moderation (takedown when informed) policy might in principle be identified as sites to whom access should be prevented. In situations where material is copyrighted and held in private, but where it may be in the public interest to share that material without permission (e.g. Wikileaks, or even accredited news sites), could the amendment be used to effectively censor sites hosting that content? If that reading is correct, do you think this (mis)use of the law as proposed is fair (i.e. using it not in the spirit it was presumably intended?)
Based on my reading of the Bill, it also appears that the Bill is drafted in such a way that a “Code” that is: i) enforceable by the terms contained within the Bill, if enacted, and that ii) can draw on provisions also drawn up within the Bill, has been proposed that has not, as yet, been written (and may not be…). That is:
‘After section 124C of the Communications Act 2003 insert—
“124D Initial obligations code by OFCOM in the absence of an approved code
(1) For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations.
(2) OFCOM may but need not make a code under subsection (1) for a time before the end of—
(a) the period of six months beginning with the day on which sections 124A and 124B come into force, or
(b) such longer period as the Secretary of State may specify by notice to OFCOM.
(3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b).
(4) A code under this section may do any of the things mentioned in section 124C(3) to (5).
(5) A code under this section may also—
(a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;
(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;
(c) provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code;
(d) make other provision for the enforcement of such awards and directions;
(e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;
(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person;
(g) make other provision for the enforcement of such awards and directions; and
(h) make other provision for the purpose of regulating the initial obligations.” ‘
Whilst I am not legally trained, my reading of this section, and the one shown below regarding what the Secretary of State (who may be anybody by the time the law, if passed, comes into force…) may or may not ask an unelected body (i.e. OFCOM) to do what can be summarised along the lines of “we might ask OFCOM to make up a legally enforceable code using some or all of the bits of some laws we’ve just made up; or not; whatever…”
Question: How would you summarise: a) the intent of the passages quoted immediately above and below? b) justify the passage of the legislation as stated bearing in mind your role as my representative at Westminster, with a “first and foremost” role for scrutinising parliamentary bills on the behalf of constituents such as myself?
’10 Obligations to limit internet access: assessment and preparation
After section 124F of the Communications Act 2003 insert—
“124G Obligations to limit internet access: assessment and preparation
(1) The Secretary of State may direct OFCOM to—
(a) assess whether one or more technical obligations should be imposed on internet service providers;
(b) take steps to prepare for the obligations;” ‘
I look forward to hearing your response, in particular your answers to the questions that I have specifically identified as such.
UPDATE (19-20/3/10): I had a holding letter response saying that Andrew Turner was looking into the matter. I just replied with an additional question: