Letter to Edward Garnier on online rights

Having finally caught up with the threat to 'Digital Britain' represented by the twin evils of Mandelson's three strikes approach to file sharing, and the Government's refusal to protect our online privacy from Phorm, I've followed the Open Rights Group's request to write to my MP... well, you know, email him. I'm not going to actually send him a letter about online rights, am I?

Dear Edward Garnier,

I would like to raise two related issues with you in connection with the vision of 'Digital Britain', and the question of how that vision relates to issues of privacy and justice.

The first is Peter Mandelson's so-called "three strikes" approach to P2P file sharing. It seems to me that the current proposals would give significant and far-reaching powers to politicians to curb people's access to the internet in ways which are not compatible with the vision of 'Digital Britain'. If it is true, as many politicians have said, including the Prime Minister, that internet access these days is as important to people's participation in society as a connection to utilities such as gas, electricity and water, then politicians having the power to deny people such access must surely be a dangerous infringement of civil rights. Especially when new powers under the proposals could be introdcued by means of a Statutory Instrument, not even requiring parliamentary approval.

The proposals suggest taking measures against people before they have been proven to be guilty. They also miss the point that those who have the technical capability to commit large-scale illegal file sharing will undoubtedly be able to find other means to access the internet - it will be the small-timers, the teenagers who download a few music files, who will be the softest targets for these actions. Possibly good headlines, but bad policy. The result will be a focus on denial of service to people who may need the internet for work, education or social interaction, while the major criminals continue their activities.

As a financial crime, illegal file sharing (and perhaps you could explain to Mr Mandelson when you see him that not all file sharing is illegal, he seems to have forgotten) should be punished with financial penalties, not punitive disconnection. And what other crime involves punishment not as a result of court proceedings but on the basis of a report to the Home Secretary?

I would hope that given your legal interests you would be keen to see the legal systems well-establish principles triumph over this cheap piece of dramatic over-reaction in the name of protectiing the profits of media industry corporations who would rather close down digital technology than learn to use it. Those media businesses who have embraced the internet are much less comfortable with Mandelson's proposals, and there is little evidence to suggest it would work anyway.

Please sign EDM 1997, and if you have the time, contact the Open Rights Group, who have a fully-reference response to the proposals available for MPs, and Consumer Focus, who are a statutory body who share the concerns of the ORG.

The second issue of concern is Phorm, the technology used to look inside web traffic to profile users for advertising. I understand that the EU Commission recently restated its position that the UK was not complying with EU laws in three areas:

1. That there is no independent national authority to oversee such interception, and thus to receive and investigate complaints.

2. That there is a reliance in the UK law on citizen's 'presumed consent' to have their web traffic monitored for such purposes which does not comply with the vision of consent as "freely given specific and informed indication of a person's wishes".

3. That the penalties under UK law only apply where interception is proved to be intentional, rather than protecting citizen's privacy by prohibiting unlawful interceptions and seeking sanctions when they occur, whether intentional or otherwise.

I understand that the UK has not yet responded to this judgement. If it fails to do so, or if its response is inadequate, we may face the UK government being taken to the European Court of Justice for failing to protect its citizen's privacy. Nothing new there, perhaps, but I would be grateful if you could raise these concerns through the appropriate channels and seek to ensure that the UK meets its obligations under the relevant EU law to protect its citizens' privacy online.

Taken together I believe these two issues show a glaring lack of concern over the privacy and rights aspects of 'Digital Britain' on behalf of the government. Just as the media industry has had to come to terms with the existence of the internet and change its business model accordingly, so too public policy, which is sadly lagging a long way behind. If Uk citizens are to remain exposed to interception for marketing purposes on the one hand, and threatened with disconnection without trial on the other, the chances of embedding the internet in citizens' daily lives is dramatically reduced. If we want Britain to be a world leader in new technology, and our citizens to play a full role in the online world, then we need a legal framework which protects and promotes our online rights. This present government seems unable to recognise that need.

Yours sincerely,

Nick Holden