The Digital Economy Bill 2016: idiocy by the back door

Yesterday I sat through all five hours of the House of Commons’ second reading of the Digital Economy Bill 2016.  My reason for doing so was professional – it was immediately relevant to an article I was writing – even if the effort did make me want to stab myself with a fork.

As with previous iterations of the same name, the Digital Economy Bill – in the words of Open Rights Group – “looks like the drawer where all the ‘fix the internet’ ideas ended up.” Have a look at its table of contents. As you can see, this proposal contains everything from switching broadband to adult content to copyright to big data to tax fraud to the BBC.

Why is that a problem? There are two reasons. The first is that issues which could be important enough to merit their own bills – like copyright and age verification for adult content – get lost among other issues. Indeed, the provision of the bill relevant to the article I was writing was not discussed once in the five hour session.

The second is that when it comes time for these catch-all bills to be debated, what ensues is several hours of people riding hobby horses about the provisions of the bill which get the most publicity. For this bill, the chorus of “adult content? won’t somebody think of the children!” dominated at least half of the debate. Issues of broadband connectivity took up perhaps 40% more. All of the other issues within this massive bill merited less than 10% of the talk.

A complete walkover

The issues skimmed over in yesterday’s debate are not insignificant. ORG helpfully summarised them:

1. 10 year prison sentences that could apply to ordinary file sharers – empowering copyright trolls to threaten people with incredibly disproportionate punishments

2. Compulsory age verification to access websites hosting paid-for pornography – There are no safeguards to prevent the creation of a database revealing people’s personal sexual preferences. It also does little to stop under-18s accessing free pornography elsewhere on the Internet

3. Increased data sharing between Government departments – without sufficient safeguards or transparency about how our data will be used

The first issue, 10-year prison sentences for file sharing, was enthusiastically cheered by MPs Karen Bradley, Thangam Debonnaire, and Nigel Adams. Not one MP offered a dissenting view.

The second issue, compulsory age verification and access to adult content, was discussed ad nauseum. They like talking about porn, do our MPs.

The third issue, increased data sharing across government, was barely touched upon. Just four MPs mentioned the data sharing provisions at all. One of them, by Kelvin Hopkins MP, was the length of this sentence. Only one MP, Yvonne Fovargue, addressed the data sharing issue with any substance, although her angle was data sharing for debt collection.

Chi Onwurah raised the data sharing provisions at the very end of the day. She received a reply from Matt Hancock which used the example of sharing data to identify people in fuel poverty, which, curiously, is the only specific example the government has come up with in defense of these provisions. Keep an eye out to see if fuel poverty remains the stock answer on data sharing.

Huw Merriman MP asked “I understand that a breach of the data-sharing rules, as prescribed by clause 58, may result in criminal sanctions. Given the proportionality involved, may I suggest that that be reclassified as a civil matter?”, proving that at least one MP read the ORG briefing and brought their brain into the House.

The long story short is that if the data sharing provisions of the Digital Economy Bill do have potential to be abused, those who would do so got a complete walkover in the House of Commons.

Open mouth, engage foot

Aside from those issues, there were two moments during the five-hour ordeal which left even an old policy hack like me gobsmacked.

The first was Ed Vaizey saying this:

“It is almost impossible to deal with social media companies. They are like giant children.”

This is an astonishing slip of the tongue from someone who very recently was the Minister for the Digital Economy. It reveals a view of tech companies as “children” who need to be “dealt with.” He probably still wonders why he lost his job. (It might have something to do with this, mind.)

The second howler came from John Whittingdale MP, who said this:

“I agree with the hon. Member for Newcastle upon Tyne Central (Chi Onwurah) that the Bill should have contained cyber-security measures, and perhaps I should take some responsibility for that. Cyber-security is one of the great challenges facing our country, and I know that Ministers take it very seriously. At present, telecoms companies are required to report a cyber-attack—which TalkTalk had to do not so long ago—but that requirement is restricted to telecoms companies. The truth is that every company is being subjected to cyber-attack, and I think that in the event of a significant breach resulting in the loss of data affecting large numbers of people, companies should make it public and tell their consumers. That is not currently within the law, and we may need to consider it again.”

The idea he is describing is already happening. It’s called the NIS Directive on Cybersecurity. It’s an EU directive which takes effect in 2018. The reason it is an EU directive is because “cyber-attacks” (gah) do not stop at Calais. The Directive will allow tech companies across Europe to work together in real-time to identify, mitigate, and report cybersecurity incidents.

It goes without saying that John Whittingdale is a hardcore Brexiteer who, in his blinkered state, has clearly never heard of the NIS Directive.

Alternatively, he may well have heard of it, and will now make a play to lead on its implementation into domestic legislation, minimising its EU origin as much as possible, while presenting himself as the hero of the day.

The Digital Economy Bill 2016 now passes to the committee stage.

About the author
Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and has been a professional web site designer since 2007. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to write, speak, or consult.