The Slide from “Self-Regulation” to Corporate Censorship

THE SLIDE FROM “self-regulaTion” TO CORPORATE CENSORSHIP THE SCALE AND SIGNIFICANCE OF MOVES TO ENTRUST INTERNET INTERMEDIARIES WITH A CORNERSTONE OF DEMOCRACy – open elecTRONIC COMMUNICATIONS NETWORKS This document is EXECUTIVE distributed under a Creative Commons 3.0 SUMMARY Licence Discussion Paper Prepared by Joe McNamee EU Advocacy Coordinator European Digital Rights Introduction Self-regulation has traditionally been used in the Internet sector to permit companies in the fast-moving technology world to manage their networks efficiently in Rue Montoyer 39/9, B-1000 Brussels a way which gives flexible protection to their networks and protects consumers from E-Mail: [email protected], problems like spam. Now, increasing coercion of Internet intermediaries to police and punish their own consumers is being implemented under the flag of “self-regulation” http://www.edri.org even though it is not regulation – it is policing – and it is not “self-” because it is their consumers and not themselves that are being policed. 01/2011 Net neutrality and online policing Large Internet access providers are GLOSSARY requesting and, sometimes, demanding increased powers to interfere with Access provider IP address traffic – to limit certain services or to A company that provides connections to the Each device connected to the Internet has a demand payment from high-bandwidth Internet for individual consumers, organisations unique number that allows it to communicate services. Governments are demanding or companies. with other devices. more voluntary measures from access Deep packet inspection Net-minus effect providers in order to police the Internet A technology which permits access providers This is the term used in this paper to describe for a variety of vested interests – blocking to open each “packet” of Internet data sent or the situation where the limited action of a private gambling websites to protect tax revenues received on its network in order to assess where company is used to deal with a problem which and websites accused of facilitating it is coming from, who it is going to and the could be – and would be, without the involvement intellectual property infringements, to nature of the file, if it is not encrypted. of the private company – more effectively and comprehensively dealt with by official public protect media industries that have been Devolved enforcement bodies. The net effect of the intervention by the unable to adapt to the digital age. This Where the state or public bodies devolve the private company is less than zero. quid pro quo is made more interesting responsibility for policing, judging and/or Newsgroup for access providers whose businesses prosecuting alleged infringements of the law. are part of media groups or who have This is a form of public noticeboard system. Hosting provider close cooperation with them. Two Packet major European access providers are A company which provides the facilities necessary to maintain a website or store other files on the Files sent over the Internet are split into implementing highly invasive “deep packet Internet. “packets”, to be assembled by the recipient inspection” technologies to fulfil their own computer. and government demands. Internet hotline Peer-to-peer A private or state facility which permits citizens Scale of demands Activities to encourage to make (sometimes anonymous) reports of A technology which permits end-user computers intermediaries to achieve various public potentially illegal content and/or activities on the to communicate directly with each other without policy initiatives exist at different levels: Internet. relying on a single point of connection on the national (extra-judicial blocking of Internet. For example, Skype users find each Internet intermediary other online using the Skype database, but then websites accused of containing illegal connect directly to each other, rather than using material), ad hoc international (the This is a generic term referring to any company providing services on, or to connect to, the infrastructure provided by Skype. four-country -Netherlands with the Internet. UK, Germany and the Czech Republic - The slide from self-regulation to corporate censorship 002 initiative on illegal use of the Internet and ACTA), regional (various EU “self-regulation” dialogues with industry) and international CONTENTS (OSCE, OECD, CoE and UN). Dangers The dangers of extra-judicial policing and punishment Introduction 004 by private companies have not been assessed with regard to fundamental rights. Furthermore, they have not been assessed The slide from self-regulation with regard to their effectiveness for fighting crime. There are to voluntary policing 007 already examples of punishments (such as website deletion) being used instead of real sanctions, even in cases of serious Drivers for devolved regulation 010 crimes such as child abuse – resulting in a “net-minus” effect. Ad hoc policing measures imposed by Internet intermediaries are Devolved enforcement - resulting in less effective and less deterrent measures being taken mistakes made but no lessons learnt by the state. 014 Conclusion A public debate is urgently needed in order to assess Current devolved enforcement the scale of the policing measures being entrusted to Internet initiatives 021 intermediaries, the cost for the rule of law and for fundamental rights as well as the cost for effective investigation and prosecution International “self-regulatory” of serious crimes in the digital environment. initiatives 026 Ad hoc international measures aimed at “self-regulation” 029 The impact of “voluntary self-regulation” on legal content 032 Conclusion 035 Bibliography 037 The slide from self-regulation to corporate censorship 003 INTRODUCTION The largest and most developed Internet economies, including the extreme, they become the police, judge, jury and executioner the European Union and the United States, are in the process of with regard to alleged infringements of either the law or of their own making a crucial and irreversible choice on the future of openness, terms and conditions which may be stricter than the law. democracy, transparency and innovation on the Internet. This Broadly speaking, online intermediaries have had little if any interest choice is whether Internet intermediaries (access providers, in adopting devolved law enforcement roles, but increasingly feel website hosting companies, etc) should be allowed to manipulate obliged to do so as a result of either government pressure or legal Internet traffic for their own purposes or to police and punish uncertainty created by weak or unclear legal protections (“safe the activities of their own consumers to achieve particular public harbours”) offered to them in cases where their networks are policy goals. This decision is being made without any specific used for illegal activities. For governments, the aim is obviously democratic policy decision or analysis of the consequences. not to create a privatised police state. However, there is a general We are already reaching a “tipping point” in a gradual slide from the abandonment of the traditional concept of the rule of law and the traditional sense of “self-regulation” (where intermediaries manage role of the judiciary. The result is the “death by a thousand cuts” their own networks responsibly, as a more efficient approach than of traditional policing and judicial transparency. Each element of prescriptive legislation) to “devolved law enforcement”, where, at The slide from self-regulation to corporate censorship 004 Internet communication is being addressed While the dangers to innovation (and the with the responsibility to undertake in isolation with little coordination – leading knock-on effects for the economy, for regulation of communication when they to an overall detrimental effect. A list of such the take-up of Internet access and for cannot reasonably be expected to provide projects is included below in the section on investment) are very serious in their own the same level of impartiality, transparency devolved enforcement initiatives. right 2, this paper mainly addresses the and due process as traditional regulation of fundamental rights aspects of the increasing communications? Some form of “cooperation” between Internet interference of private companies in citizens’ intermediaries for the achievement of public This paper looks at the growing role right to communicate. Very basic questions policy objectives has always been supported of delegation of law enforcement and need to be asked about whether we should by the European Union (as in Article 16 of the quasi-judicial responsibilities to Internet E- Commerce Directive 1, for example). Now, intermediaries under the guise of “self- however, a mixture of business interests “The openness regulation” or “cooperation”. The first section and a conflation of the concepts of self- provides an introduction to the experience regulation, co-regulation and outsourcing of of the Internet of “self-regulation” and its slow slide from law enforcement to private companies have ISPs regulating their own systems (i.e. an redefined this approach. This fundamental enabled an entirely internal process) to the policing of change in the concept of “self-regulation” avalanche of customers based on data gathered outside represents a danger for the core values of the their systems by third parties (i.e. an entirely Internet and the benefits that these values innovation over external process which is, in fact, “devolved

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