net.wars

"If you are going to do this damn silly thing, don't do it in this damn silly way," Sir Humphrey Appleby tells Jim Hacker in a fit of unaccustomed straight talking.

We think of this often these days, largely because it seems as though lawmakers, having been belittled by impatient and malcontent geeks throughout the 1990s for being too slow to keep up with Internet time, are trying to speed through the process of creating legislation by eliminating thought, deliberation, and careful drafting. You can see why they'd want to get rid of so many civil servants, who might slow this process down.

In that particular episode of Yes, Minister, "The Writing on the Wall" (S1e05), Appleby and Hacker butt heads over who will get the final say over the wording of a draft proposal on phased Civil Service reductions (today's civil servants and ministers might want to watch episode S1e03, "The Economy Drive", for what their lives will soon be like). Hacker wins that part of the battle only to discover that his version, if implemented, will shut down his own department. Oops.

Much of the Digital Economy Act (2010) was like this: redrafted at the last minute in all sorts of unhelpful ways. But the devil is always in the details, and it was not unreasonable to hope that Ofcom, charging with defining and consulting on those details, would operate in a more measured fashion. But apparently not, and so we have a draft code of practice that's so incomplete that it could be a teenager's homework.

Both Consumer Focus and the Open Rights Group have analyses of the code's non-compliance with the act and a helpful <"a href=http://e-activist.com/ea-campaign/clientcampaign.do?ea.client.id=1422&ea.campaign.id;=7268">online form should you wish to submit your opinions. The consultation closes today, so run, do not walk, to add your comments.

What's more notable is when it opened: May 28, only three days after the State Opening of the post-election parliamentary session, three weeks after the election, and six weeks after the day that Gordon Brown called the election. Granted, civil servants do not down pencils while the election is proceeding. But given that the act went through last-second changes and then was nodded through the House of Commons in the frantic dash to get home to start campaigning, the most time Ofcom can have had to draft this mish-mash was about six weeks. Which may explain the holes and inadequacies, but then you have to ask: why didn't they take their time and do it properly?

The Freedom bill, which is to repeal so many of the items on our wish list, is mute on the subject of the Digital Economy Act, despite a number of appearances on the Freedom bill's ideas site. (Big Brother Watch has some additional wish list items.)

The big difficulty for anyone who hates the copyright protectionist provisions in the act - the threat to open wi-fi, the disconnection or speed-limitation of Internet access ("technical measures") to be applied to anyone who is accused of copyright infringement three times ("three-strikes", or HADOPI, after the failed French law attempting to do the same) - is that what you really want is for the act to go away. Preferably back where it came from, some copyright industry lobbyist's brain. A carefully drafted code of practice that pays attention to ensuring that the evidentiary burden on copyright holders is strong enough to deter the kind of abuse seen in the US since the passage of the Digital Millennium Copyright Act (1998) is still not a good scenario, merely a least-worst one.

Still, ORG and Consumer Focus are not alone in their unhappiness. BT and TalkTalk have expressed their opposition, though for different reasons. TalkTalk is largely opposed to the whole letter-writing and copyright infringement elements; but both ISPs are unhappy about Ofcom's decision to limit the code to fixed-line ISPs with more than 400,000 customers. In the entire UK, there are only seven: TalkTalk, BT, Post Office, Virgin, Sky, Orange, and O2. Yet it makes sense to exclude mobile ISPs for now: at today's prices it's safe to guess that no one spends a lot of time downloading music over them. For the rest...these ISPs can only benefit if unauthorised downloading on their services decreases, don't all ISPs want the heaviest downloaders to leech off someone else's service?

LINX, the largest membership organisation for UK Internet service providers has also objected (PDF) to the Act's apportionment of costs: ISPs, LINX's Malcolm Hutty argues, are innocent third parties, so rather than sharing the costs of writing letters and retaining the data necessary to create copyright infringement reports ISPs should be reimbursed for not only the entire cost of implementing the necessary systems but also opportunity costs. It's unclear, LINX points out, how much change Ofcom has time to make to the draft code and still meet its statutory timetable.

So this is law on Internet time: drafted for, if not by, special interests, undemocratically rushed through Parliament, hastily written, poorly thought-out, unfairly and inequitably implemented in direct opposition to the country's longstanding commitment to digital inclusion. Surely we can do better.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

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Does anyone really know what their computers are doing? Lauren Weinstein asked recently in a different context.

I certainly don't. Mostly, I know what they're not doing, and then only when it inconveniences me. Don't most of us have an elaborate set of workarounds for things that are just broken enough not to work but not so broken that we have to fix them?

But companies - particularly companies who have made their fortunes by being clever with technology - are supposed to do better than that. And so we come to the outbreak of legal actions against Google for collecting wifi data - not only wireless network names (SSIDs) and information identifying individual computer devices (MAC addresses) while it was out photographing every house for StreetView, but also payload data. The company says this sniffing was accidental. Privacy International's Simon Davies says that no engineer he's spoken to buys this: either the company collected it deliberately or the company's internal management systems are completely broken.

This was the topic of Tuesday's Big Brother Watch event. We actually had a Googler, Sarah Hunter, head of UK public policy, on the premises taking notes (as far as I could discern she did not have a camera mounted on her head, which seems like a missed opportunity), but the court actions in progress against the company meant that she was under strict orders from legal not to say anything much.

You can't really blame her. The list of government authorities investigating Google over the wifi data now includes: 38 US states and the District of Columbia, led by Connecticut; Germany; France; and Australia. Britain? Not so much.

"I find it amazing that Google did it without permission and seemed to get away with it without anyone causing a fuss," said Rob Halfon MP, who took time between votes on Tuesday to deliver a call to action. "There has to be a limit to what these companies do," he said, calling Street View "a privatized version of Big Brother." Halfon has tabled an early day motion on surveillance and the Internet.

There are two separate issues here. The first is Street View itself, which many countries have been unhappy about.

I was sympathetic when Google first launched Street View in the US and ran into privacy issues. It was, I thought and think, an innocently geeky kind of mistake to make: a look! This is so COOL! kind of moment. In the flush of excitement, I reasoned, it was probably easy to lose sight of the fact that people might object to having their living room windows peered into in a drive-by shoot and the resulting images posted online. Who would stop to ask the opinions of the inept, confused user of typical geek contempt, "my mother"?

By the time Street View arrived in Europe, however, there was no excuse. That the product's launch has sparked public anger in every country with every launch, along with other controversial actions (think Google Books), suggests that the company's standard MO is that of the teenager who deliberately avoids her parents' permission because she knows it will be denied.

It is, I think, reasonable to argue, as Google does, that the company is taking pictures of public areas, something that is not illegal in the US although it has various restrictions in other places. The keys, I think, are first of all the scale of the operation, and second the public display part of the equation, an element that is restricted in some European countries. As Halfon said, "Only big companies have the financial muscle to do this kind of mapping."

The second issue, the wifi data, is much more clear-cut. It seems unquestionable that accidental or not - and in fact we would not know the company had sniffed this data if it hadn't told us itself - laws have been broken in a number of countries. In the UK, it seems likely that the action was illegal under the Regulation of Investigatory Powers Act (2000) and the Computer Misuse Act would apply. Google's founders and CEO, Sergey Brin, Larry Page, and Eric Schmidt, seem to take the view that no harm, no foul.

But that's not the point, which is why Privacy International, having been told the Information Commissioner was not interested in investigating, went to the Metropolitan Police.

"There has to be a point where Google is brought to account because of its systemic failure," he said. "If all the criminal investigation does is to sensitise Google, then internally there may be some evolution."

The key, however, for the UK, is the unwillingness of the Information Commissioner to get involved. First, the ICO declined to restrict Street View. Then it refused to investigate the wifi issue and wanted the data destroyed, an action PI argued would mean destroying the evidence needed for a forensic investigation.

It was this failure that Davies and Alex Deane, director of Big Brother Watch, picked on.

"I find it peculiar that the British ICO was so reluctant to investigate Google when so many other ICOs were willing," Deane said. "The ICO was asleep on the job."

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. .

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