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

“Three strikes…” “Three strikes…”

The cyber-libertarian utopia n Disintermediation ¨ Everyone a publisher ¨ Editors, producers, financial removed The cyber-libertarian utopia n Disintermediation ¨ Everyone a publisher ¨ Editors, producers, financial removed n barriers to entry… all Structural resistance to control ¨ Internet does not respect borders ¨ Encourages regulatory arbitrage ¨ No central points of control ¨ “The internet interprets censorship filters around it” as damage and

…and the response of cyberpaternalism n Re-intermediation ¨ Internet use results in new intermediaries …and the response of cyberpaternalism n Re-intermediation ¨ Internet use results in new intermediaries ¨ Often exempt from existing laws ¨ Giving the possibility of finer grained controls ¨ Regulators 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. n Remaking internet architecture ¨ Code as a means of regulation and Cyber-paternalism ctd. n 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 n n n Sender authentication Application signing Content geolocation

Implications? n Advantages? ¨ Effectiveness ¨ Cost-effectiveness (for governments, at least) ¨ “Light touch” Implications? n Advantages? ¨ Effectiveness ¨ Cost-effectiveness (for governments, at least) ¨ “Light touch” self regulation n Possible disadvantages? ¨ What effect does regulation by architecture and intermediary have on constitutional norms?

Transparency Transparency

Transparency n How are controls introduced? Primary legislation? ¨ Litigation? (e. g. Sony v. Transparency n How are controls introduced? Primary legislation? ¨ Litigation? (e. g. Sony v. Eircom) ¨ Agreement between state and intermediaries? (“Three strikes”) ¨ n n 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? ¨ n n 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? n James Boyle’s prediction: ¨ “Intrusions into privacy, automatic Are public law norms evaded? n 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 Fair procedures Is there a right to be notified / to make submissions before e. g. a site is blacklisted? n Do these systems provide for a “separation of powers”? n Is there an (independent) appeal mechanism? n

Incentives and Intermediaries Commercial realities - Block / takedown first, ask questions later or Incentives and Intermediaries Commercial realities - Block / takedown first, ask questions later or not at all? n US v. EU (E-Commerce Directive) protections – how have intermediary incentives affected speech? n Effect on proportionality? n

Proportionality n Filtering and collateral damage ¨ DNS blacklisting – e. g. Finland Pennsylvania Proportionality n Filtering and collateral damage ¨ DNS blacklisting – e. g. Finland Pennsylvania ¨ Blocks all sites hosted on a particular server – not merely Pirates’r’us. com but also Innocent. Bystanders. com n n More granular filtering will struggle with borderline cases – e. g. fair use By outsourcing costs, will states be tempted to engage in over-blocking?

The UK Experience: “Cleanfeed” n The Internet Watch Foundation ¨ Established 1996 Agreement between The UK Experience: “Cleanfeed” n The Internet Watch Foundation ¨ Established 1996 Agreement between Government, Police and ISPs n ISP liability for illegal material then unclear n Met. Police threatened to prosecute ISPs unless they blocked certain newsgroups and established take down procedures n

Status of IWF Private, charitable body n No state representation on board n Works Status of IWF Private, charitable body n No state representation on board n Works closely with Police, Government n Funded by EU and Internet Industry n Designated as a “relevant authority” under UK legislation for immunity purposes n

The IWF Blacklist n Child sexual images and content URL list ¨ Initially maintained The IWF Blacklist n Child sexual images and content URL list ¨ Initially maintained and used internally only ¨ Based on public complaints ¨ Classified in-house ¨ No prior notification to blocked sites ¨ Internal complaints mechanism for wrongful inclusion ¨ Appeal lies to Met. Police

Takeup by ISPs n 2004 – list made available to IWF members ¨ n Takeup by ISPs n 2004 – list made available to IWF members ¨ n n 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”? n Transparency and legitimacy ¨ No formal legal basis ¨ May Lessons from “Cleanfeed”? n Transparency and legitimacy ¨ No formal legal basis ¨ May clash with E-Commerce Directive guarantees n Is this a general duty to monitor? ¨ Difficult to assess the effectiveness of a system divided between various private actors n ¨ No E. g. BT – 230, 000 attempts to access child pornography over three weeks? indication to owners or users that a site has been blocked:

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

Other public law norms? n Proportionality? Be Unlimited – IP blocking & collateral damage Other public law norms? n 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 ¨ n 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? n n n Reuters 10/11/2007 – “Web search for bomb recipes should Function creep? n n n 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 n n The Telegraph 1/8/2008 – “Ministers seek curbs on internet suicide sites” Pro-anorexia sites, etc. ?

Thank you tjmcintyre@ucd. ie Thank you [email protected] ie