[AfrICANN-discuss] The Real Internet Censors: Unaccountable ISPs?

Anne-Rachel Inné annerachel at gmail.com
Sun Feb 13 20:26:09 SAST 2011

Real Internet Censors: Unaccountable ISPs?

   - By Matthew Lasar, ars
technica<http://www.wired.com/epicenter/author/matthew-lasar/> [image:
   Email Author] <matthewlasar at johnabell.com>
   - February 13, 2011  |
   - 12:30 pm  |
   - Categories: Internet Culture &

  According to a new report, the Internet police are coming… and they’re not
wearing badges. Instead, governments are devolving enforcement powers on the
‘net to ISPs.

Here at Ars Technica, we regularly report on the uneasy relationship between
Internet Service Providers and the national legal systems under which they
operate. This tension surfaces most obviously when it comes to suing
individual consumers for illegal file sharing.

Plaintiff lawyers want maximum cooperation from ISPs in tracking down
be subpoenaed, while providers like Time Warner Cable insist they can
only process so many requests at a
Denounced as permissive on
ISPs and content industry lawyers collide in the courts.

But a new report
that nations are slowly turning ISPs into the off-duty information
cops of the world. Eager to placate politicians in order to achieve their
own goals (like the selective throttling of data), networks are cooperating
with governments looking for easy, informal solutions to difficult problems
like copyright infringement, dangerous speech, online vice, and child

Network and content providers are ostensibly engaging in “self-regulation,”
but that’s a deceptive phrase, warns the European Digital
Rights<http://www.edri.org/>group. “It is not regulation—it is
policing—and it is not ’self-’ because it
is their consumers and not themselves that are being policed,” EDR says.

The report, titled “The Slide From ‘Self-Regulation’ to Corporate
Censorship,” cites many situations and examples to make the case for an
emerging “censorship ecosystem” driven by ISPs. Here are two:

EDR sees the United Kingdom’s Internet Watch Foundation as a primary
concern. Established following a London police official’s open letter to UK
ISPs, insisting that they take “necessary action” against newsgroups
containing illegal content, Internet Watch has become an executor of
extra-legal rulings “on what is illegal and what is not,” EDR charges.
  When the nonprofit identifies sites as unacceptable, ISPs remove them. The
IWF is probably most
the United States for its 2008 recommendation that Wikipedia pages
showing *The Scorpions’* controversial “Virgin Killer” album be blocked.
They were, until the organization backed down on its insistence that the
cover constituted child pornography.

The end result of all this blacklisting fervor is that legitimate content is
censored and child pornography is not stopped, says EDR. On the contrary—in
some instances, important evidence leading to the prosecution of criminals
may be scattered.

But “the British government is happy with a system where it can show
activity in this important policy area without necessarily having to devote
significant resources to the problem. Similarly, the ISPs that have signed
up to the system get good publicity without having to invest significantly
in terms of either time or money.”

Interestingly, the report contends that the United States has a somewhat
fairer system for copyright takedown notification and appeal than Europe.
EDR cites a number of disturbing studies in which researchers sent bogus
takedown notices to European ISPs, and got what they asked for—deleted

One of the most famous of these was the Bits of
Freedom<http://www.bof.nl/docs/researchpaperSANE.pdf>takedown test of
October 2004. In this
experiment <http://www.bof.nl/docs/researchpaperSANE.pdf>, the Dutch digital
rights group published an excerpt from an 1871 text by Eduard Douwes Dekker,
author of the famous anti-colonialist novel *Max Havelar*. The text appeared
on various websites, which noted that it was in the public domain.

*Continue reading

Bits of Freedom then set up a fake group called the E.D. Dekkers Society to
claim ownership of the passage, and the Society sent this missive to
respective server hosts and hosting ISPs:

E.D. Dekkers society, Rotterdam

To whom it concerns,

I am writing to you as the legal representative of the E.D. Dekkers society.
The society owns the copyright of all the published works of E.D. Dekkers. I
hereby notify you that you are hosting material (published via a so-called
home-page) which infringes on our copyrights

The address of the website is <different per provider>

Use nor distribution of this material has been authorised by the E.D.
Dekkers society. Hence I have to conclude that this publication constitutes
an infringement of the copyrights of the society.

Under the European E-Commerce directive you as a hosting provider are liable
for unlawful content if you don’t act immediately after you have been
notified of this fact. I trust you will take all necessary measures upon
receipt of this notification to end this and all future infringements of our
intellectual property rights.

Thank you for your courtesy and anticipated co-operation,Mr. J. Droogleever
(legal advisor E.D. Dekkers society), johandroogleever at hotmail.com

Here’s how one of the hosting ISPs responded to the phony notice:

They did call and e-mail the customer, and confirmed the take down to
Droogleever. They took all the arguments for granted, and reported to the
customer on the phone that the infringement was ‘a fact’. In their e-mail
they said, ‘We are obliged to do this after we have been notified of an
alleged criminal act.’ In their zealousness to comply, to Droogleever they
added a very surprising line: ‘Normally we only take materials off-line if
we receive a written notification with proof, but in this case we have made
an exception.’

Bottom line: 70 percent of the providers in the experiment took down the
content without scrutinizing either it or the complainant.

All this is central to the censorship ecosystem that European Digital Rights
fears, and it worries that this sort of extra-judicial censorship could get
much larger in the near future. The group wants more debate “to assess the
scale of the policing measures being entrusted to Internet intermediaries,
the cost for the rule of law and for fundamental rights as well as the cost
for effective investigation and prosecution of serious crimes in the digital
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