Monday 12 April 2010

Chewtoy's Digital Economy Readthrough. Part One: Sections 1-2.

OK.  I the final version of the controversial Digital Economy Act (2010) has now been published.

During the hurried progress of the Bill through the commons I became confused over which sections were dropped, which were modified and which made it through unscathed.

In a series of posts here I am going to read through the bill and make some comments on the content according to my interpretation.

I am not a lawyer.  I have a good knowledge of Internet infrastructure and surrounding technologies such as  DNS.  I should be able to make a good crack at the technical aspects of this bill but may make mistakes on the administration and law aspects.  If you spot an area where I am totally wrong, please let me know via the comments.

The opening paragraph of the Act lays out the areas covered.  There are twelve different topical divisions of the contents of the Act.  With such a wide ranging scope and the numerous sections with controversial aspects it really beggars belief that this was pushed through in the wash-up with just two hours of committee and debate before it was passed through largely unchanged.

So.  On with the read through.

The first two sections of the Act refer to duties imposed on OFCOM for the generation of reports.

Section 1: OFCOM reports on infrastructure, internet domain names, etc.

This section inserts additional sections (134A - 134C) into the Communications Act (2003).

Section 134A outlines the details of reports to be generated by OFCOM covering UK network infrastructure.  

Due to the complexity of this act and the wide range of subjects covered timing is a confusing issue.  The first Infrastructure report should be generated no more than 12 months after this section of the Act comes into force.  Fast forwarding to section 48 (Commencement)...  Basically the sections of this bill mentioned in 48(2) come into force on the day the Act is passed.  The sections mentioned in 48(3) require a statutory instrument before they come into force.  Sections one and two are not mentioned here so they come into force two months after the Act is passed.

This means that the first report due under section 134A of the Communications Act 2003 should be generated for a date no later than June 9th 2011.  There is then a further two months after generation to provide the report to the Secretary of State.

This generation of this report should then be repeated every three years, unless there is a significant change.  Significant being defined as having significant adverse impact to businesses or members of the general public (choice of order significant here?)

subsection 7 is interesting.  7(b) says that it should be published so that it can be brought to the attention of people that OFCOM consoder to have an interest in it.  Personally I would say this is everyone...

subsection 8 lets OFCOM omit information from the report using the same criteria as could be used to refuse a Freedom of Information request.  This is probably reasonable.

134B outlines the types of networks to be covered by the infrastructure report, and what details of those networks that should be included.  It is mostly a pretty dry list of items.  Basically says that there should be a report indicating the main types of network covering the country, how many people they cover, availablility information and disaster readiness.  I quite like the use of "Wireless Telegraphy" in 134B(2)(a).  Very quaint.

134C (OFCOM reports on Internet domain names) [Note: the document seems to use lower-case internet, rather than the correct upper-case Internet to indicate the global Internet]

The secretary of state may request OFCOM (no set timeline) to generate a report on the state of the Internet domain names.  It doesn't say so, but I assume this is to be limited to UK domain names, rather than a report on the state of the global DNS system.  But assumptions are dangerous...

The report should cover matters relating to "the allocation and registration of internet domain names" and misuse of domain names.  It doesn't define what is meant by misuse of domain names.

I think this is the first of the poorly drafted sections of the bill.  There is no indication of what would cause the Secretary of State to want to generate such a report, and the only time associated is "as soon as is practicable".  I assume the "people likely to have an interest" is probably the membership of Nominet at minimum, if not everyone.

On to section 2: OFCOM reports on media content.

This is another insert into the Communications Act 2003 (section 264A).

This section covers generating reports on media services.  References to television services in the existing Act are extended to mean media services which includes (264A(5)(a) television and radio (b)on-demand programmes and (c) services provided by means of the internet where there is a person who exercises editorial control over the material included in the service).  Not entirely sure what editorial control would entail...  I assume this report is intended to cover things such as internet TV and radio stations, but not cover user contributed sites such as youtube, etc.  I am not sure where this puts podcasts.  There is editorial content here so they seem to classify.  I don't know how OFCOM are supposed to report on them though.

Here ends the coverage of sections 1 and 2.  Next up are the sections on Online infringement of copyright.  Given that this is the most contraversial area of the Act it is likely to take me a while to dig through...