This article was originally published on Open Democracy, as a part of a week-long series on the future digital freedom guest-edited by Index

Threats to digital freedom are growing just as the number of people accessing the internet is taking off, with millions more likely to join the digital world through mobiles and smartphones in the coming years.

The range of challenges is wide: from state censorship, including firewalls and the imposition of network or country-wide filters, to increasing numbers of takedown requests from governments, companies and individuals, corporate hoovering up of private data, growing surveillance of electronic communications, and criminalisation of speech on social media.

The rapid growth of threats to our digital freedom, in democracies as well as authoritarian regimes, means that the next few years could prove to be a watershed period determining whether the net remains a free space or not. Defending our freedom online means taking action now — beginning with understanding the nature of the threats and who lies behind them.

Governments send mixed messages
In democracies such as the US, UK, Sweden, India or Brazil, governments and politicians will often make stirring calls to defend digital freedom, emphasising that fundamental rights to freedom of expression and privacy apply online as much as off. But faced with temptations, such as the growing technological ease of mass population surveillance — from mobile phones to internet usage, web searches and social media chat — too many governments in democracies are starting to look at the sort of mass gathering of communications data that previously only authoritarian regimes would consider.

This leads to strange contradictions in government policy stances. In the UK, the government has temporarily withdrawn its proposed “snoopers’ charter” (the Communications Data Bill) in the face of swingeing criticism from an MPs’ scrutiny committee and from wider civil society. The Bill in its proposed form would have represented the most extensive mass surveillance of a population’s activities in the digital world of any democracy.

Yet at the same time, the UK along with the US, Germany and many other European countries has stood firm against attempts by China and the Russia, with some support from an array of other countries, to introduce top-down global control of the internet. Instead the UK government, along with many other (though not all) democracies, has argued for the current more “multistakeholder” model where no one body, country or group controls the net. The Indian government wobbled to a disturbing extent on this before refusing to go along with China and Russia at the major international telecoms summit in Dubai last December, in their push for this top down control.

Countries such as China and Iran have, unsurprisingly, been in the vanguard of those trying to build firewalls, block websites, and in myriad ways limit, control and monitor their population’s use of, and access to, the web. Yet the number of countries limiting the internet in some way has grown sharply in the last few years. Some of the limits introduced may seem unimportant, such as the Danish government having a country-wide internet block on their population accessing gaming sites in other countries (not for censorship reasons but to preserve the Danish monopoly on this profitable business). But the more the internet is filtered at network or country level, the less free it becomes.

There will always be arguments why a particular filter is necessary — to tackle child porn, to protect children and young adults from legal adult porn, to tackle crime and terrorism, to stop offence. Filtering and blocking sites always run the risk of over-blocking, of hiding not stopping a problem, and of being used for reasons beyond those stated.

Unless governments stand up for free speech, there can be segments of the public who demand limits on speech that undermine free expression as a fundamental right. One key example of this is the growing sensitivity of many people to offence. Yet there is no right not to be offended, and one person’s offence is another’s honest argument or piece of creative art. In the UK and India, we have recently seen arrests and prosecutions for supposedly offensive comments or photos and other postings on social media (in the case of these two countries relating to the common root of a 1930s English law that criminalised ‘grossly offensive’ phone, and then electronic, communications). There is now growing concern and debate about this criminalisation of mostly harmless social media comment. In the UK the director of public prosecutions Keir Starmer has issued interim guidelines in an attempt to rein in the growing number of such prosecutions.

Corporations as censors
Another disturbing part of this growing set of threats to our web freedom is the role played by corporations. Many web hosting companies and internet service providers state their support for fundamental rights, including free expression, while insisting that they also have to obey the laws of countries they are in. Google and Twitter have led the way in publishing transparency reports showing the number of takedown requests and user data information requests they have received from different governments.

But companies can become complicit in censorship if they take content down too readily in the face of public or government complaints — avoiding the risk of court cases or libel suits, playing safe. Companies such as Facebook or Twitter also set their own terms of service which define what is and is not acceptable usage and behaviour on their platforms. Perfectly normal perhaps — just like a club sets the rules of behaviour of its members.

But when the club, in the case of Facebook, is a billion strong, and its terms of service dictate what types of images and language are and are not acceptable, moreover dictating that anonymity is not allowed, then these are the sorts of constraints on free expression that are usually the preserve of governments to decide — governments that can be held accountable by their citizens (in democracies) and challenged by civil society, in the courts and through the ballot box.

The retention and commercial use of increasingly large amounts of individuals’ data from their internet activities has also sparked an extensive and vital debate about privacy. Privacy online is very often closely intertwined with free expression online: if someone is monitoring what you do or say or gathering it up and exploiting it commercially, that can be a major chill on free speech.

Whether and to what extent there should be a “right to be forgotten” is one part of this debate. Given the pervasive nature of the web, actually deleting individual data is becoming increasingly difficult. At the same time requests to delete individual data from news reports, for instance, is a sort of censorship of the historical record which would be highly undesirable.

Digital freedoms closing down

There are a wide and growing set of threats to our digital freedoms. But there are positive trends too. The rapid, intense and so far successful fight back against various forms of extensive imposition of copyright controls (ACTA, PIPA, SOPA and others) shows this is not a one-way street.

Even in regimes like Iran and China, many ordinary citizens have found ways to evade the censor, to widen their ability to communicate and access information. Governments can be challenged — at least in democracies — if they go down the route of mass surveillance or criminalisation of social media comment. Defending our digital freedom means becoming active, engaging with the arguments, making the case: bad decisions and laws can be stopped, limited or reversed. It is a national and an international debate — and the debate is now on.

The post Gathering clouds over digital freedom? appeared first on Index on Censorship.

As Wikipedia and other websites begin blackout to protest against US anti-piracy laws, Index and the international human rights community speak out on PROTECT IP Act

Sen. Harry Reid
Majority Leader
United States Senate
522 Hart Senate Office Bldg
Washington, DC 20510

Dear Majority Leader Harry Reid,

As human rights and press freedom advocates, we write to express our deep concern about S. 968, the PROTECT IP Act (PIPA), and the threat it poses to international human rights. Like H.R. 3261, the Stop Online Piracy Act (SOPA), PIPA requires the use of internet censorship tools, undermines the global nature of the internet, and threatens free speech online. PIPA introduces a deeply concerning degree of legal uncertainty into the internet economy, particularly for users and businesses internationally. The United States has long been a global leader in support of freedom of speech online, and we urge the Senate not to tarnish that reputation by passing PIPA.

Today, some of the world’s most repressive countries, like China, Iran, Yemen, Saudi Arabia, and Syria use DNS filtering as a means to silence their citizens. As over 80 human rights organizations recently wrote in a letter opposing SOPA, “institutionalizing the use of internet censorship tools to enforce domestic law in the United States… creates a paradox that undermines its moral authority to criticize repressive regimes.”[1] In fact, PIPA would send an unequivocal message to other nations that the use of these tools is not only acceptable, but encouraged.

DNS filtering is a blunt form of censorship that is ineffective at achieving its stated goal, while causing collateral damage to online communities on a massive scale. But while DNS filtering is trivial for users to circumvent, this technology would fundamentally undermine the integrity of the global internet, making users more vulnerable to cybersecurity attacks and identity fraud. Additionally, any legislation that mandates filtering of websites is prone to unintended consequences, such as overblocking. For example, in early 2011, when the Immigration and Customs Enforcement agency seized the domain mooo.com, it accidentally removed the web addresses of 84,000 (almost exclusively legal) connected domain names.[2] Moreover, once the technical infrastructure enabling censorship is in place, it allows future governments (and private actors) to block virtually any type of content on the web, making the provisions of this bill prone to mission creep.

The attempts at due process provisions in this bill do not respect the global nature of the internet. The network effects of the internet are realized when users and innovators are able to connect around the globe. However, creating a mechanism that requires a representative of a website to make a court appearance in the U.S. in order to defend themselves against an allegation of infringement would disproportionately impact smaller online communities and start-ups based abroad that do not have the capacity to address concerns in the United States. These websites would risk losing access to advertising services, payment providers, search engine listings, and their domain name. Together, these pieces of the bill would drive international innovators away from depending on U.S. services as a hedge against legal threats, while missing what should be the target of this legislation: preventing large-scale commercial infringement.

PIPA further creates a double jurisdiction problem, whereby non-U.S.-based sites must determine whether a site is legal in both the country it is operating in and the United States. This raises serious concerns about the scope of the bill, as foreign websites falling under PIPA’s definition of infringement may be perfectly legal in other jurisdictions. For example, the domain of a Spanish site, rojadirecta.org, was seized in early 2011 by U.S. authorities without adequate due process, notification to the site’s owners, or an option to defend themselves, despite having been declared legal by two Spanish courts.[3]

The definition of “information location service” is overly broad and would have a chilling effect on online speech. PIPA would make nearly every U.S.-based actor on the internet, including not only blogs, chat rooms, and social networks but users as well, potentially subject to enforcement orders of the bill. Additionally, the requirement that these service providers act “as expeditiously as possible to remove or disable access” to an allegedly infringing website imposes an unprecedented burden on any service that contains links, incentivizing the screening and removal of content in order to avoid being caught up in legal proceedings. Further, even if an accused website is later found to be innocent, links to that website could have effectively disappeared from the web, having been permanently removed when the court notice was served.

PIPA is also vague with respect to how links would be defined, including if all links associated with a domain or subdomain would be required to be blocked and if this would apply to future attempts by users to post content. This provision could potentially be interpreted in a way that would force services that allow users to post links to proactively monitor and censor the activities of their users, dramatically altering the role of these platforms in promoting free speech and setting a dangerous precedent for other countries.

We understand the pressure that lawmakers face in passing copyright enforcement legislation, and agree that protecting the rights of creators is an important goal. However, enforcement should not come at the expense of free speech or due process. This bill is fundamentally flawed due to its wide range of restrictive and potentially repressive measures. Even if individual elements of the proposal, such as DNS filtering are modified, postponed or amended, the legislation as a whole represents a precedent that is a real danger for human rights on the internet. We must remain conscious of the fact that the internet is a key enabler of human rights and innovation, and decisions over its governance should not be made hastily and without full consideration of collateral consequences.

We strongly urge the Senate to stand for human rights, defend the open internet, and reject the PROTECT IP Act.

Sincerely,

Access
AGEIA DENSI
Amnesty International
Asociatia pentru Technologie si Internet (ApTI)
Association for Progressive Communications (APC)
Article 19
Bits of Freedom
Bytes for All Pakistan
Centre for Internet and Society – India
Communication is Your Right!
Computer Professionals for Social Responsibility
Creative Commons Guatemala
ONG Derechos Digitales – Chile
Demand Progress
Digitale Gesellschaft e.V.
Eduardo Bertoni on behalf of iLEI/CELE UP (Iniciativa Libertad de Expresión en Internet, Centro de Estudios en Libertad de Expresión, Universidad de Palermo, Argentina)
Electronic Frontier Finland (EFFi)
EsLaRed
European Digital Rights (EDRi) (an association of 27 privacy and civil rights groups in Europe)
FGV/CTS
FoeBuD
Foundation for a Free Information Infrastructure (FFII)
Free Network Foundation
Free Press Unlimited
Free Software Foundation Europe (FSFE)
Fundación Karisma
FUNREDES
German Working Group against Internet Blocking and Censorship (Arbeitskreis gegen Internet-Sperren und Zensur, AK Zensur)
Hiram Meléndez-Juarbe on behalf of the New Technologies, Intellectual Property and Society Clinic University of Puerto Rico Law School
Human Rights Watch
Index on Censorship
Instituto Nupef
Internet Democracy Project – India
Iuridicum Remedium o.s.
Julia Group
Guardian Project
La Quadrature du Net
MayFirst/People Link
Net Users Rights Protection Association (NURPA)
Open Rights Group (ORG)
Open Source Initiative
Palante Technology Cooperative
Panoptykon Foundation
People Who
Public Sphere Project
Quintessenz
Reporters Without Borders
Vrijschrift
WITNESS
wlan slovenia, open wireless network

The post Why is Wikipedia down? appeared first on Index on Censorship.

Enforcing intellectual property rights and promoting Internet freedom are not — and should not be — mutually exclusive goals for the US government. Efforts to curb IP infringement in a manner that respects rule of law and free expression are not equivalent to government censorship.  Indeed, the Universal Declaration of Human Rights calls on states to multi-task, protecting the right to free expression, the right to participate in cultural life, and the right of artists to benefit from their works at the same time.  Setting up a false dichotomy belies the harder questions at the heart of current debates around the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) in the US: the question isn’t whether to protect, but how to protect intellectual property in the Internet age.

And the inconvenient truth is that the “how” really matters.  How narrowly does the enforcement mechanism target infringement?  How much will the measure impact lawful expression?  How might the measure harm other important rights and interests like user privacy or economic innovation?  Ultimately, will the measure’s effectiveness be worth its unintended consequences?  What precedent will the measure set for other, more restrictive countries?  The answers will reveal whether an IP enforcement proposal appropriately promotes both intellectual property rights and the human rights of users, and not one at the expense of the other.

To maintain American credibility on Internet freedom, Congress must strive to craft effective IP enforcement measures in a way that does not unduly harm freedom of expression, privacy, and innovation online.  Doing so requires a sober assessment of the questions above, comparing the actual benefits against the costs to human rights and other important interests.  SOPA and PIPA’s proposed mechanisms fail any such reasonable assessment.

SOPA would create two mechanisms that would cause broad collateral damage to freedom of expression and privacy: First, it would allow the US government to interfere with “foreign infringing sites,” but the term’s definition is so broad that any non-US site that allows user-generated content could qualify.  Once the US government had a court order under this section, it could require ISPs and search engines to prevent access to a site, and compel ad and payment networks to stop doing business with a site. PIPA is narrower in scope, but includes similar remedies, including an obligation for ISPs to filter out requests for certain domain names.  As a group of prominent engineers has argued, domain-name filtering would have limited effectiveness, sweep in innocent expression, and seriously harm Internet security.

Separately, SOPA would create a notice-and-cutoff system that allows private parties to starve a website (whether foreign or US-based) of its financial resources.  Under this system, if a single rightsholder believes a site does not do enough to monitor and police user infringement, he could send notices to payment and ad networks to stop them from doing business with the site.

The implications of these mechanisms would be profound.  SOPA in particular takes direct aim at user-driven, online communications tools — tools like YouTube, Twitter, Wikipedia, Facebook, and Dropbox that we use everyday to communicate and access information.  General-purpose social media sites based outside the US could be tagged as “foreign infringing sites” that could be filtered in the U.S. and stripped of financial support simply for providing a platform for individual expression — even if they had no bad intent and are used largely for innocent expression.

And to protect themselves from the whims of an aggressive rightsholder under the notice-and-cutoff system, every user-generated content platform, social media website, or cloud-based storage service — anywhere in the world — would have to monitor and police the behavior of users, with severe impact on user privacy and expression.

Finally, SOPA and PIPA could have sweeping impact beyond US borders.  First, because SOPA’s broad reach would encompass legitimate platforms for expression, it could directly impact the work of human rights defenders and democracy activists everywhere.  We have seen the power of social media to enable grassroots social movements in the Arab world.  If these tools of social change get caught in SOPA’s crosshairs, it could hurt their ability to remain open platforms for expression and organisation.

More broadly, these bills stand for the proposition that online communications tools and the domain name system should be used as points of control to enforce local laws.  Nothing limits the use of such mechanisms to merely the enforcement of intellectual property.  If SOPA and PIPA are enacted, the US government must be prepared for other governments to follow suit, in service to whatever social policies they believe are important — whether restricting hate speech, insults to public officials, or political dissent.

If many other countries adopt these mechanisms, we risk further Balkanisation of the Internet, undermining its benefits as a global platform for expression, democratic engagement, and economic development.  This result is difficult to square with the US’s stated foreign policy of supporting a single, global network. The US cannot effectively urge other governments to stop blocking Internet content that violates local laws when the US is supporting precisely the same mechanisms in service of IP enforcement.

These unintended consequences for human rights and the global Internet must be fully weighed as Congress considers current proposals.  While there is no inherent contradiction between IP enforcement and human rights, Congress must ask whether the “how” of these bills truly supports both IP enforcement and human rights.

Cynthia M Wong is director of the Project on Global Internet Freedom at the Center for Democracy & Technology in Washington, DC. You can follow her on Twitter: @cynthiamw

Index on Censorship has written to the US Committee on the Judiciary in opposition of the Stop Online Privacy Act. Read the letter here.

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