What to do? I suspect the strategic question is what prevents the legislation (albeit secondary) being passed before the Election. Under the June 'Digital Britain' consultation, it would take 3 years until 3 Strikes would be introduced, so it was a political irrelevance.
The first element is to suggest to BERR that it cannot introduce what amounts to a new consultation before August Bank Holiday with the end-date of 29 September - that's 5 weeks including a Bank Holiday. They should be giving a 3-month period - i.e. end-November. The suggestion they have made is clearly inadequate: "we need to be able to properly consider responses in time to take account appropriately of views and evidence in the construction of the legislation." In fact, it goes against their own guidelines in the Better Regulation Taskforce.
The second is to point out the inadequacy of the Impact Assessment carried out thus far - the Assessment did not consider the costs of fraud to the software or games industries, only the costs to music publishers. It also admitted that there would be substantial consumer welfare losses, TWICE the benefits to industry: "Cost to consumers Under the assumption that ISPs fully pass down to consumers the annual increase in costs, we expect broadband retail prices to increase between 0.2% and 0.6%60. Studies on the price elasticity of demand have shown that demand for broadband is not very sensitive to price increases. Nonetheless, we estimate that this cost would have a relatively small but permanent effect of reducing demand for broadband connection between 10,000-40,000. This would represent additional revenue lost by the ISP industry between £2 and £9 million per annum. Additionally some consumers, especially those with low income or those that derive a relatively low welfare from creative content, only consume creative content at a price of zero or close to zero. As a result it is likely that the policy will have an impact on equality (i.e. those on the lowest incomes are likely to lose the most). However, it must be noted that the impact will only be to those that were illegally downloading digital content. These consumers will experience a net welfare loss as a result of the proposed policy option since they will stop consuming creative content altogether. *It is not possible to estimate such welfare loss with current data availability, but estimates for the US show that this welfare loss could be twice as large as the benefit derived from reducing the displacement effect to industry revenues*." (at p.50)
That is unacceptable when there is evidence available - and I am sure others know far better than me the up-to-date figures which illustrate that copyright breach is a far larger and longer-run issue for the software industries, but that they have developed strategies and business planning to account for a measure of such theft. Moreover, the paragraph I highlighted is obviously one that slipped in without political oversight, given its obvious conclusion that we should not be introducing these measures! Of course there is the point of principle that you should not be cutting people off without a court order, but preaching to BERR or Ofcom about this will be a waste of breath.
Does anyone know [a] the Conservative position on this? [b] whether the Communications Consumer Panel has any intention of getting involved? It should be their job to represent the consumer against this outrageous breach of due process, but they don't appear to have made any statement.
Of course what I am suggesting would benefit from some coordination with ISPs to establish clearly that accelerating such a complex and unclear process is procedurally and evidentially outrageous (as well as morally but that's not their interest).
Its always worth pointing out that such evidence as can be mustered will be passed to the European Commission, which of course monitors UK.gov legislation in this area (as with Phorm), pointing out that this breaches or at the very least stretches to breaking point Art.15 of the E-Commerce Directive, as well as the Charter of Fundamental Rights.