Here Come the Internet Cops TJ McIntyre University College Dublin Digital Rights Ireland Merrion Legal Solicitors [email protected].

Here Come the Internet Cops

TJ McIntyreUniversity College DublinDigital Rights IrelandMerrion Legal [email protected]

“Three strikes…”

The cyber-libertarian utopia

Disintermediation Everyone a publisher Editors, producers, financial barriers to entry… all

removed Structural resistance to control

Internet does not respect borders Encourages regulatory arbitrage No central points of control “The internet interprets censorship as damage and

filters around it”

…and the response of cyber-paternalism Re-intermediation

Internet use results in new intermediariesOften exempt from existing lawsGiving the possibility of finer grained controlsRegulators will shift their focus to “elephants”

rather than “mice”Why target the user when you can target the

host, ISP or software author?

Cyber-paternalism ctd.

Remaking internet architecture Code as a means of regulation and surveillance Anonymous speech, decentralised distribution,

encryption, virtual geography are contingent features only

“Spam, security and spondoolicks” threaten the end to end architecture of the internet

Sender authentication Application signing Content geolocation

Implications?

Advantages?EffectivenessCost-effectiveness (for governments, at least)“Light touch” self regulation

Possible disadvantages?What effect does regulation by architecture

and intermediary have on constitutional norms?

Transparency

Transparency

How are controls introduced? Primary legislation? Litigation? (e.g. Sony v. Eircom) Agreement between state and intermediaries? (“Three strikes”)

Who is a party to the negotiations? Is the agreement public?

Secret government action (data retention) Are restrictions “prescribed by law” as required by ECHR?

Do e.g. users know that ISPs filter URLs, or search engines filter results?

Does e.g. a filtering system deceive users as to why a page is inaccessible?

Are public law norms evaded?

James Boyle’s prediction: “Intrusions into privacy,

automatic scrutiny of email, curtailing of fair use rights … all of these would occur in the private realm, far from the scrutiny of public law”.

Fair procedures

Is there a right to be notified / to make submissions before e.g. a site is blacklisted?

Do these systems provide for a “separation of powers”?

Is there an (independent) appeal mechanism?

Incentives and Intermediaries

Commercial realities - Block / takedown first, ask questions later or not at all?

US v. EU (E-Commerce Directive) protections – how have intermediary incentives affected speech?

Effect on proportionality?

Proportionality

Filtering and collateral damage DNS blacklisting – e.g. Finland and Pennsylvania Blocks all sites hosted on a particular server – not

merely Pirates’r’us.com but also InnocentBystanders.com

More granular filtering will still struggle with borderline cases – e.g. fair use

By outsourcing costs, will states be tempted to engage in over-blocking?

The UK Experience: “Cleanfeed”

The Internet Watch FoundationEstablished 1996

Agreement between Government, Police and ISPs ISP liability for illegal material then unclear Met. Police threatened to prosecute ISPs unless

they blocked certain newsgroups and established take down procedures

Status of IWF

Private, charitable body No state representation on board Works closely with Police, Government Funded by EU and Internet Industry Designated as a “relevant authority” under

UK legislation for immunity purposes

The IWF Blacklist

Child sexual images and content URL list Initially maintained and used internally onlyBased on public complaintsClassified in-houseNo prior notification to blocked sites Internal complaints mechanism for wrongful

inclusionAppeal lies to Met. Police

Takeup by ISPs

2004 – list made available to IWF members Following Home Office pressure

BT take lead in developing blocking system (internally – “Cleanfeed”); agree to make it available to others

Voluntary takeup by other ISPs during 2006 / 2007 Government indicated plans to legislate unless 100% of

ISPs implemented a content blocking system by end 2007

95% of broadband providers now appear to “voluntarily” filter against the IWF list

Lessons from “Cleanfeed”?

Transparency and legitimacy No formal legal basis May clash with E-Commerce Directive guarantees

Is this a general duty to monitor? Difficult to assess the effectiveness of a system

divided between various private actors E.g. BT – 230,000 attempts to access child pornography over

three weeks? No indication to owners or users that a site has been

blocked:

(Swedish child pornography blocking information page. Source – blockpage.com)

Other public law norms?

Proportionality? Be Unlimited – IP blocking & collateral damage System blocks only a very limited subset of internet traffic – IRC,

filesharing, Usenet, etc. are left untouched. TOR / other proxies defeat it entirely

Accountability No prior notification Limited ability to challenge decisions No independent appeal mechanism as required by Art. 6 ECHR Amenable to judicial review? Outside the scope of e.g. Freedom of Information Act 2000

Function creep?

Reuters 10/11/2007 – “Web search for bomb recipes should be blocked: EU”

The Guardian 17/1/2008 – “Government targets extremist websites”

Byron Review 3/2008 Extreme pornography and racial hatred; Blocking of

non-illegal material to be kept under review The Telegraph 1/8/2008 – “Ministers seek curbs

on internet suicide sites” Pro-anorexia sites, etc.?

Thank you

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