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Here Come the Internet Cops
TJ McIntyreUniversity College DublinDigital Rights IrelandMerrion Legal [email protected]
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
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:
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.?