Government says privacy safeguards are not ‘necessary’ in Digital Economy Bill

The House of Lords debated age verification for online pornography last week as the Committee stage of the Digital Economy Bill went ahead.

Peers tabled a considerable number of amendments to improve the flawed Part 3 of the Bill, which covers online pornography. In their recent report, the Committee on the Constitution said that they are worried about whether a proper parliamentary scrutiny can be delivered considering the lack of details written on the face of the Bill. Shortly after the start of the debate it became obvious that their concerns were justified.

Lords debated various aspects of age verification at length, however issues of appeal processes for website blocking by Internet service providers and privacy safeguards for data collected for the age-verification purposes will have to be resolved at a later stage.

In our view, if the Government is not prepared to make changes to the Bill to safeguard privacy, the opposition parties should be ready to force the issue to a vote.

Appeals process for ISP blocking

Labour and Lib Dem Lords jointly introduced an amendment that would implement a court order process into the blocking of websites by Internet service providers. The proposal got a lot of traction during the debate. Several Peers disagreed with the use of court orders, arguing about the costs and the undue burden that it would place on the system.

The court order process is currently implemented for the blocking of websites that provide access to content that infringes copyright. However, the Government is not keen on using it for age verification. Lord Ashton, the Government Minister for Culture, Media and Sport, noted that even the copyright court order process “is not without issues”. He also stressed that the power to instruct ISPs to block websites carrying adult content would be used “sparingly”. The Government is trying to encourage compliance by the industry and therefore they find it more appropriate that ISP blocking is carried out by direction from the regulator.

The Bill doesn’t express any of these policy nuances mentioned by the Government. According to Clause 23 on ISP blocks, age-verification regulator can give a notice to ISPs to block non-complying websites. There is no threshold set out in the clause that would suggest this power will be used sparingly. Without such threshold, the age-verification regulator has an unlimited power to give out notices and is merely trusted by the Government not to use the full potential of the power.

The Government failed to address the remaining lack of legal structure that would secure transparency for website blocking by ISPs. Court orders would provide independent oversight for this policy. Neither the method of oversight, nor enforcement of blocking have been specified on the face of the Bill.

For now, the general public can find solace in knowing that the Government is aware that blocking all of social media sites is a ridiculous plan. Lord Ashton said that the Government “don’t want to get to the situation where we close down the whole of Twitter, which would make us one of two countries in the world to have done that”.

Privacy protections and anonymity

Labour Peers – Baroness Jones and Lord Stevenson and Lord Paddick (Lib Dem) introduced an amendment that would ensure that age-verification systems have high privacy and data protection safeguards.

The amendment goes beyond basic compliance with data protection regulations. It would deliver anonymity for age-verification system users and make it impossible to identify users throughout different websites. This approach could encourage people’s trust in age-verification systems and will reassure people to safely access legal material. By securing anonymity, people’s right to freedom of expression would be less adversely impacted. Not all the problems go away: people may still not trust the tools, but fears can at least be reduced, and the worst calamities of data leaks may be avoided.

People subjected to age verification should be able to choose which age-verification system they prefer and trust. It is necessary that the Bill sets up provisions for “user choice” to assure a functioning market. Without this, a single age-verification provider could conquer the market offering a low-cost solution with inadequate privacy protections.

The amendment received wider support from the Lords.

Despite the wide-ranging support from Lib Dem, Labour and cross-bench Lords, the Government found this amendment “unnecessary”. Lord Ashton referred to the guidance published by the age-verification regulator that will outline types of arrangement that will be treated as compliant with the age-verification regulator’s requirements. Since the arrangements for data retention and protection will be made in the guidance, the Government asked Lord Paddick to withdraw the amendment.

Guidance to be published by the age-verification regulator drew fire in the Delegated Powers and Regulatory Reform Committee’s Report published in December 2016. In their criticism, the Committee made it clear that they find it unsatisfactory that none of the age-verification regulator’s guidelines have been published or approved by Parliament. Lord Ashton did not tackle these concerns during the Committee sitting.

The issue of privacy safeguards is very likely to come up again at the Report stage. Lord Paddick was not convinced by the Government’s answer and promised to bring this issue up at the next stage. The Government also promised to respond to the Delegated Powers and Regulatory Reform Committee’s Report before the next stage of the Bill’s passage.

Given the wide support in the Lords to put privacy safeguards on the face of the Bill, Labour and Lib Dem Lords have an opportunity to change the Government’s stance. Together they can press the Government to address privacy concerns.

The Government was unprepared to discuss crucial parts of the Part 3. Age verification for online pornography is proving to be more complex and demanding than the Government anticipated and they lack an adequate strategy. The Report stage of the Bill (22 February) could offer some answers to the questions raised during the last week’s Committee sittings, but Labour and Lib Dems need to be prepared to push for votes on crucial amendments to get the Government to address privacy and free expression concerns.