How much more damage can unelected Labour politicians like Mandelson do before the forthcoming General Election ?
Quite a bit it seems, if you read the appalling Digital Economy Bill, published by the Department for Business, Innovation and Skills and the Department for Culture, Media and Sport, which Mandelson is in charge of, but which he obviously does not even pretend to devote his attention to full time.
The Digital Economy Bill manages to ignore most of the recommendations for faster, better broadband infrastructure in the Government's own Digital Britain: The Final Report - 16 June 2009 produced by Lord Carter.
It is being heavily and criticised by digital rights and liberties campaign groups like the Open Rights Group and by law professors like Liilian Edwards on her panGloss blog etc. for the horrendous threat to grab unlimited "Henry VIII" powers to amend existing Copyright legislation simply by Order, without any public consultation or parliamentary scrutiny.
The stupid and counterproductive plan to disconnect internet users simply based on hearsay of unreliable, often shared public IP addresses, by greedy and inept foreign and UK corporations and their all too willing shyster lawyers, will lead to lots of innocent people being affected, without any effect on serious organised criminals. These vested commercial interests are attempting, yet again, to get pliant Labour politicians to circumvent normal civil court cases requiring proper standards of evidence, and an independent judgement of proportionality, in favour of some inherently unfair, nebulous regulation based, probably "lawyer- bot" automated legal threat system.
As with most Labour Government Bills, even after you have found two or three controversial sections, around which most media and Parliamentary opposition will focus, there are usually further inept or deliberately evil sections which have been sneaked in
However, one section of this wretched Bill which has not had much publicity, yet, is the section which attempts to throttle the Internet Domain Name Registration system with the cold dead hand of Government bureaucracy.
The Digital Economy Bill 2009 Clauses 18 to 20 will damage or destroy the UK domain name registration system, and perhaps that of some other countries as well:
Powers in relation to internet domain registries
Some possible areas of UK Government regulation for the .UK domain name space
Some legal powers which might make sense, if the Government is really trying to protect the UK's critical national internet infrastructure, something which comes under the mantra of "the economic well being of the United Kingdom", which is one of the vague legal definitions of "national security".
- Where are the UK Government standards for Domain Name System security against hacking and denial of service attacks ?
- Where is the mandatory requirement for Disaster Recovery plans and procedures and backup data centre for UK based domain name registrars ?
- Why is there no provision for regular security audits by GCHQ / CESG accredited information security assurance experts, of the core Domain Name Server systems and also of the associated online credit card payment , and name and address data processing systems ?
- This Digital Economy Bill misses the opportunity of enhancing public confidence in the UK internet domain name space, by legally guaranteeing the chain of trust inherent in the Domain Name System, and especially in the move towards cryptographically digitally signed DNS Security Extensions (DNSSEC) technology, which is currently rolling out around the world's top level internet domain name registries.
- Why can't this Bill mandate the auditing of DNSSEC security and the digital counter-signature of the top level server Digital Signing Certificates, by an independent non-commercial UK Government public bodythe Department for Business, Innovation and Skills and the Department for Culture, Media and Sport itself, or even by GCHQ / CESG or even OFCOM ?
- Where is the legal protection against United Kingdom or foreign attempts by shyster lawyers to censor or deny service to UK based businesses or individuals, by attempting to seize or shut down a web site etc. not by serving a legal notice on the publishers or the actual operators of the web server, but on the Domain Name Registrar of its internet Domain Name e.g. like the unsuccessful attempt in the USA, to disproportionately censor the whole of the wikileaks.org website, because of a few documents, out of several million, on web servers in Sweden, alleging illegal tax evasion schemes operated by the Swiss Bank Julius Baer . This Digital Economy Bill should be providing legal protection from such disproportionate, malicious attack, which can involve disputes between two entirely foreign based parties.
- The BIll should should also provide legal protection for the current Nominet .UK domain name WHOIS opt out policy. Nobody should be coerced or forced into revealing the name and postal address or email details or financial payment details, of a private individual or non-trading organisation who have simply registered a domain name, without the registrant's informed prior consent, or without a Court Order.
- When a Domain Name Registrar is bought, sold or goes bankrupt etc., there must be enforceable legal protections on the privacy of this customer registration data - the Data Protection Act 1998 and the under resourced Information Commissioner's Office has been so weakened by later legislation (from a weak starting point), that it offers no real protection or assurance to the public.
This Digital Economy Bill does none of these things at all !
Instead,it attempts to regulate not just the .UK domain name space, but all other registries based in the United Kingdom.
There are no actual detailed Regulations published in this Bill.
Past experience teaches us that we cannot trust this Government to produce simple, practical or reasonable regulations on anything to do with computer or telecommunications or internet technology.
The Digital Economy Bill also forces Domain Registries to pay for the remuneration of appointed Government appointed "managers",and to bear the legal costs of any Court actions by the Government against them, regardless of whether they are found innocent of any wrongdoing or not, after false, malicious or petty accusations of wrongdoing.
If this Bill passes, then there is no technical reason why the UK Domain Name Registration industry will not simply pack up and move abroad, out of the clutches of Mandelson and his cronies, or else be destroyed by competition from foreign domain name registries - precisely the opposite of what the Digital Economy Bill should be trying to achieve.
See the UK top level domain name registrar Nominet, whose members comprise most of the United Kingdom's domain name registration industry, who are right to be worried - Together we can shape the future of .uk ;
the way the industry works and Nominet's role in it could change in some very significant ways with government imposed regulation, more red tape and paperwork and the erosion of members' business interests being the most likely outcome as outlined in the Government's proposed Digital Economy Bill last week.
However, the wording of the Digital Economy Bill makes no mention of the UK domain name space at all, it attempts to be much wider and all encompassing than that, as it uses the general wording
124N Notification of failure in relation to internet domain registry
"internet domain registry" means a relevant body that--
(a) maintains a register of all of the internet domain names that belong to a particular internet domain, and
(b) operates a computer program or server that forms part of the system that enables the names included in the register to be used to access internet portal addresses or other information by means of the internet;
In the same way that, for example, the De La Rue security printing company uses its technology and expertise to print the bank notes or passport documents of many small countries, there are UK based companies which provide Domain Name Registrar services for non-UK domain names. In fact there have never been any companies in the UK which have only relied on United Kingdom .UK business alone, as even from the early days of the industry, United States .COM business has been very popular.
What conceivable business is it of Mandelson or his minion,s to try to legislate about the intellectual property of every other country in the world , as well as that of the United Kingdom ?
These poorly worded clauses do not seem to acknowledge the international nature of internet domain names.
There is no awareness of things like RealNames which were, or are still, not limited to two or three letter ISO Country Code based domain name suffixes Remember that the Internet Corporation for Assigned Names and Numbers (ICANN), which actually controls the worldwide internet domain name system, has been slowly introducing money grabbing schemes like .aero , .museum, .mobile etc.
There is no mention or understanding in this Bill of foreign language alphabet translation of domain names:
ICANN Approves Initial Use of Internationalized Domain Names
Seoul, South Korea... October 30, 2009... The Internet's naming system has become truly global with the approval of new extensions that will eventually enable entire website address names to be written in all the language scripts of the world.
The Internet Corporation for Assigned Names and Numbers (ICANN) today agreed on the introduction of a number of "internationalized" domain names, or IDNs, where scripts such as Chinese, Korean or Arabic will be used in the last portion of an address name - the part after the dot such as dot-com and dot-org.
Currently, due to technical constraints, all domain names end in letters from the Latin alphabet (A through Z). After years of work by ICANN, a global system for the use of other scripts in domain names has been designed, tested and now approved. It could lead to a dramatic increase in the number of global Internet users.
Why should a Domain Name Registrar be in any way responsible for the subsequent activities of an "end-user" once they have purchased an internet domain name ?
18 Powers in relation to internet domain registries
After section 124M of the Communications Act 2003 insert--
"Powers in relation to internet domain registries
124N Notification of failure in relation to internet domain registry
(3) There is a relevant failure in relation to an internet domain registry if--
(a) the registry, or any of its registrars or end-users, engages in prescribed practices that are unfair or involve the misuse of internet domain names, or
(5) In this section and sections 124O to 124Q--
"end-user", in relation to an internet domain registry, means a person who has been or wants to be allocated an internet domain name that is or would be included in the register maintained by the registry;
This is absurdly unjust !
This betrays the whole concept of limited liability companies or partnerships !
Why has Mandelson's Department for Business, Innovation and Skills and the Department for Culture, Media and Sport, managed to ignore the very relevant, existing E-Commerce regulations, which it is itself already responsible for, having absorbed the former Department for trade and industry ?
Domain Name Registrars, even more so than Internet Service Providers or Telecommunications companies are certainly "information society service" providers.
How is attempting to make them responsible for the actions of their customers, at all compatible with the "mere conduit", "caching" and "hosting" legal protections of
"Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce"
as implemented in UK law by
These protections have been incorporated into the revised Computer Misuse Act 1990 and even into the draconian Serious Crime Act 2007 section 34 Providers of information society services, so why are they not mentioned in this Digital Economy Bill ?
In the same way that the notorious UK libel laws are so unfair and favour the rich against the poor, not because of the amounts of financial damages which are sometimes awarded, but because of the huge legal costs which can be incurred, this wretched Digital Economy Bill seeks to penalise small companies and new entrants to the marketplace, with the threat of forcing the Domain Name Registry to bear the costs of the bureaucratic government appointed "manager" in taking the company to Court, for an alleged infringement, of the as yet secret ad undefined rules and regulations.
19 Appointment of manager of internet domain registry
(1) After section 124N of the Communications Act 2003 insert--
124P Functions of manager etc
(3) The order may make provision about the remuneration of the manager,
including in particular--
(a) provision for the amount of the remuneration to be determined by the Secretary of State, and
(b) provision for the remuneration to be payable from the property of the registry.
So a Domain Name Registrar, even one which has been falsely or maliciously accused of some unproven or or minor infringement, will have to pay an arbitrary amount of money, out of the property of the registry !
Astonishingly, the Department for Business, Innovation and Skills and the Department for Culture, Media and Sport, which like all Whitehall central Government departments has plenty of lawyers already on the public payroll, is seeking to force Domain Name Registry's to bear the legal costs of being taken to Court, regardless of the outcome i.e. they even have to pay when they are found innocent of any wrongdoing !
However the wording " payable from the property of the registry" is fraught with potential problems, which will make it difficult or impossible to pay the parachuted "Manager", without involving even more legal court cases.
The Registry may not have very much "property", and what little there is may well be physically abroad, outside of UK legal jurisdiction.
"property" is not legally the same as "financial assets" or "income stream" or even "intellectual property".
Most of their computer equipment such as DNS servers or Web Servers or e-commerce payment systems will also probably be leased or rented from data centres, rather than owned outright as "Property".
It could be argued that even the top level ".UK" domain name is not the "Property" of Nominet, but of the foreign based ICANN, and the same is certainly true for say ".com" Domain Name Registrars based in the UK.
5) The Secretary of State may apply to the court for directions in relation
to any matter arising in connection with the functions or powers of the
manager costs of the application are to be paid by the registry).
Just the threat of such expensive legal action, where the costs are stacked against an individual or company, in favour of the Whitehall bureaucracy, will have a similarly chilling effect on the Digital Economy of Britain, as the notorious libel laws have on publishing and free speech.