Tuesday, March 09, 2010

Disconnection is disproportionate

Two weeks ago the government released its proposed replacement for the hated s92A: the Copyright (Infringing File Sharing) Amendment Bill. The bill would establish a regime of infringement and warning notices against those accused of violating copyright on the internet (for example, by file-sharing), and ultimately allows copyright holders to have people disconnected from the internet for six months. At the time, I complained that the proposed law did not recognise what a pervasive part of people's lives the internet had become. And reading the background documents, that's even more apparent.

First up is the bill's Regulatory Impact Statement [PDF] - carefully hideen away in a corner of the internet to reduce public scrutiny in accordance with the government's new fear-driven policy of secrecy. And right there on the first page, there's this:

The RIAT [Treasury - I/S] considers that the analysis shows there is a case for intervention, but that, due to the uncertainty about the scale of harm done by illegal peer-to-peer file sharing, the impact analysis does not point to a preferred option.
The options presented were basically "wait and see what everyone else does", send out "education" notices, the old s92A guilt by accusation regime, or the "preferred option" of escalating notices followed by fines and disconnection. The analysis points out that according to a UK survey, "up to 70% of illegal file sharers would, at least initially, stop file sharing if they received an education notice" - which suggests that that option of warning but no disconnection would largely achieve the policy objective in an unintrusive way. So you can see why Treasury had concerns.

The Ministry of Economic Development, which performed the analysis, considered that disconnection was a "proportionate" response to the harm of file sharing. But there's no acknowledgement in the RIS of the impact of this move. It seems to be assumed that all disconnection does is stop people from infringing copyright. But people use the internet for far more than that: for work, shopping, staying in touch with friends and family, paying your taxes, finding out what the government is doing and organising with your friends to speak up about it. This means that disconnection has very serious implications for freedom of expression (not to mention just the unlegislated right to participate in society). And those implications are not considered in the RIS.

Neither are they really considered in the Attorney-General's frankly laughable Bill of Rights analysis. Oh, it recognises that there is a prima facie inconsistency with freedom of expression - but it seems to consider the expression to be the copying of copyrighted works. It's not - it's everything, not just the freedom to speak, but the freedom to seek and receive information.

The Attorney-General considers that a six month ban on sending and receiving information through what has become the primary means of communication is "proportionate" to the important and significant objective of protecting copyright. Bullshit. It's screamingly disproportionate - as anyone who actually used the internet would immediately understand. Its like punishing an unauthorised singing of "Happy Birthday" by banning someone from talking for six months - or cutting out their tongue. Except that only captures half of the problem. The inability to receive information means that it is effectively putting out their eyes and cutting off their ears as well.

These comparisons to barbaric punishments are not lightly made. Disconnection from the internet is effectively a mutilation of us as citizens. It cripples our ability to function in modern society. It doesn't just steal our voice - it blinds and deafens us to our family, our friends, our community, and the world.

Today, the BBC reported that a survey of 27,000 people around the world found that almost 80% of humanity considers internet access to be a fundamental right. Its time the government recognised this, and scrapped its plans for digital mutilation.