In our increasingly digital times, freedom of expression may look like one of the positive beneficiaries of our ever more interconnected world. Countries like China or Iran build firewalls and employ small armies of censors and snoopers in determined attempts to keep their bit of the internet controlled and uncritical of their ruling elites. But with social media, blogs, citizen journalism, and ever greater amounts of news on a diverse and expanding range of sites, information is shared across borders and goes around censors with greater ease than ever before.

Yet online and off, free speech still needs defending from those in power who would like to control information, limit criticism or snoop widely across people and populations. And it would be a mistake to think the free speech attackers are only the obvious bad guys like China, Iran or North Korea.

While Putin’s Russia jails members of Pussy Riot, passes new laws to block websites and journalists continue to face risks of violent attack, it is Turkey, in 2013, that has more journalists in jail than even Iran or China. In 2004, the European Union assessed Turkey as democratic enough to be a candidate for EU membership. Today, Turkey’s government puts pressure on media companies and editors to rein in critical journalists and self-censorship is rife.

Meanwhile, in the UK, a fully paid-up member of the democracy club, the government and opposition argue over whether Parliament should regulate the print media (“statutory underpinning”, to use the jargon introduced by the Leveson Report into the phone-hacking scandal). On 18 March, the UK’s three main political parties agreed on a new press regulation system whereby an independent regulator would be set up by royal charter. And in this debate over media standards and regulation, the most basic principle, that politicians should not in any way control the press (given their interests in positive, uncritical press coverage), has been too easily abandoned by many. Yet the press faces big questions: what has happened to its standards, how can individuals fairly complain? Similar debates are under way in India, with corruption and the phenomenon of ‘“paid news” among concerns there. Falling standards provide easy targets for those who would control press freedom for other reasons.

Plenty of governments of all shades are showing themselves only too ready to compromise on civil liberties in the face of the large amounts of easily accessible data our digital world produces. Shining a light on requests for information — as Google and Twitter do in their respective transparency reports —  is one vital part of the campaigns and democraticdebate needed if the internet is not to become a partially censored, and highly monitored, world.

Google’s recent update of its figures for requests for user data by law enforcement agencies shows the US way ahead of other countries — accounting for over a third of requests with 8,438 demands, with India coming in at 2,431 and the UK, Germany and France not so far behind India.

Both India and the UK have also used too widely drawn laws that criminalise “grossly offensive” comments, leading to the arrest and prosecution of individuals for innocuous social media comments. Public outcry and ensuing debate in both countries is one sign that people will stand up for free speech. But such laws must change.

A new digital revolution is coming, as millions more people move online via their mobiles. As smart phone prices fall, and take-up expands, the opportunities for free expression and accessto information across borders are set to grow. But unless we are all vigilant, whether we face democratic or authoritarian regimes, in demanding our right to that free expression, our digital world risks being a partially censored, monitored and fragmented one. This is the global free speech challenge of our times.

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post Global view appeared first on Index on Censorship.

Against a backdrop of heavy austerity measures in Greece, free speech and the right to protest are being both challenged and undermined. The policies are the result of agreements between the government and the so-called troika, made up of the European Commission, the International Monetary Fund and the European Central Bank. Since 2010, steps taken to restore fiscal balance have led to the impoverishment of large segments of society and unemployment has reached new highs: 26.8 per cent in October 2012. At the same time, the rise of the neo-Nazi party Golden Dawn, with an agenda of targeting immigrants, homosexuals and “dissidents” of all kinds, has created palpable social tensions. Police repress protests and political activity by a range of groups, including anarchists and leftists, a fact that has been widely documented. These tactics have been regarded by many as evidence that the government is adopting an authoritarian stance when it comes to criticism and dissent.

The current government, run by Prime Minister Antonis Samaras’s conservative New Democracy Party, took office in June 2012. In a report published in July 2012, Police Violence in Greece: Not just “Isolated Incidents”, Amnesty International stated:

The failure of the Greek authorities to effectively address violations of human rights by police has made victims of such violations reluctant to report them. … Between 2009 and the first months of 2012, numerous allegations have been received regarding excessive use of force, including the use of chemical irritants against peaceful or largely peaceful demonstrators, and the use of stun grenades in a manner that violates international standards.

In the report, Amnesty made “urgent recommendations to the Greek authorities”, urging them to ensure that police “exercise restraint and identify themselves clearly during demonstrations” and calling for them to improve “safeguards for those in custody and creating a truly independent and effective police complaints mechanism”. The mainstream media — owned mainly by business leaders seen as having a cosy relationship with politicians — have censored or fired journalists who have attempted to speak out about the costly bailout agreements with the troika.

Those who have reported on allegations of police brutality, such as Kostas Arvanitis and Marilena Katsimi of the Greek state-owned public radio and television broadcasting corporation ERT have also been targeted. On 9 October 2012, Thanos Dimadis, a correspondent for Greek TV and radio station SKAI, reported that bailout payments had been only “partial” and carried out “under a regime of strict economic surveillance”. Later that day, he received instructions from SKAI TV news director Christos Panagopoulos not to include that information in the afternoon and evening news reports. The text of his story was removed from SKAI TV’s website. Dimadis’s report was annoying for the government, which was keen to prevent details about the bailout from becoming public. Payments from the troika had been suspended since June, after a partial tranche was released. The authorities were worried that the public would believe that payments were conditional on even more stringent austerity measures. Dimadis complained to SKAI’s news directors, threatening to resign if they did not back up his report. He eventually quit.

Dimadis told me that senior management at SKAI argued that the reason they withdrew his report was that the prime minister’s office had dismissed it as false. Moreover, Dimadis’s reactionwas described by SKAI as “over the top”.

Censoring the news

The government’s modus operandi is best illustrated by the Kostas Vaxevanis case. Vaxevanis, an investigative journalist and publisher of Hot Doc magazine, was arrested on 28 October 2012 for publishing the names of over 2000 Greek citizens who held Swiss bank accounts, dubbed the “Lagarde list”. The story focused on alleged tax evasion by wealthy Greeks during a time of economic crisis.

“A few months ago, before the release of the ‘Lagarde list’ and my aggressive arrest, there was an organised attempt to destroy my professional reputation: a publication presenting a fake receipt attempted to incriminate me as being on the payroll of the National Intelligence Service (EYP). I realised I was under heavy surveillance and one night I was ambushed by strangers at my home,”Vaxevanis told me in an interview.

During our discussion, on 26 December 2012, Vaxevanis said free speech in Greece was coming under attack yet again: “It’s not something new. When you have ongoing dealings between politicians and businessmen who own media groups, then it comes as no surprise that journalists are driven to self-censorship. Take a look, for example, at the non-existent coverage of the Reuters story on the Piraeus Bank case. You have such a big story, but what you see in the newspapers instead is an advertisement by the bank.”

On 1 November, Vaxevanis was acquitted and cleared on changes of violating privacy laws. But two weeks later, the prosecutor’s office ordered a retrial, claiming the original verdict was “legally flawed”. He could face up to two years’ imprisonment if he is sentenced. In April 2012, Reuters reported on an investigation into documents, including financial statements and property records, relating to Michalis Sallas, executive chairman of Piraeus Bank, and his wife, Sophia Staikou. The press report said “the couple may also be emblematic of the lack of transparency and weak corporate governance that have fuelled Greece’s financial problems”.

But according to journalist Apostolis Fotiadis, no major national or international media outlet reported on the lawsuit filed by Piraeus Bank against Reuters, though the New York Times anda couple of independent journalists attended the trial, including Fotiadis. The ruling is still pending.

On 29 October 2012, a popular morning talk show on the Greek state broadcasting corporation, ERT, was suddenly suspended, following a decision by ERT’s general director of news, Aimilios Liatsos. Shortly before the show was dropped, Kostas Arvanitis, co-presenter of the programme, and his colleague Marilena Katsimi had made comments on air about the minister of public order’s response to an article published in the British newspaper the Guardian written by Helena Smith.

Arvanitis told me:

I’ve been working as a journalist for 25 years. I’ve never experienced anything like this — not to this extent and with such intensity, at least. I consider what happened as aggressive meddling by the political system. It’s becoming more and more clear: every question that is different, every perspective that is different is considered provocative. You can understand what’s happening if you take a careful look at the media coverage of strikes.

Influential columnists and unsigned editorials very often neglect the reasons lower and middle working classes decide to go on strike. Instead of shedding light on their requests, these outlets prefer to present the strikes as instances of “abusing the public space” or “disturbing public peace”. This is the typical official government response as well. In the broader context, of course, this approach fails to report on the growing pressure on workers — on those who still have a job but with reduced salaries, and on those without one.

A Guardian article written by Maria Margaronis was published on 9 October and mentioned allegations of police brutality against protesters. It also referred to and confirmed an earlier article,published on 28 September, written by Helena Smith, that quoted ‘analysts, activists and lawyers’ as saying that the “far-right Golden Dawn party is increasingly assuming the role of law enforcement officers on the streets of the bankrupt country, with mounting evidence that Athenians are being openly directed by police to seek help from the neo-Nazi group”.

Margaronis also wrote:

Fifteen anti-fascist protesters arrested in Athens during a clash with supporters of the neo-Nazi party Golden Dawn have said they were tortured in the Attica General Police Directorate (GADA) — the Athens equivalent of Scotland Yard — and subjected to what their lawyer describes as an Abu Ghraib-style humiliation. If it hadn’t been for the Guardian stories, it is highly unlikely that Golden Dawn’s purported connection with the police would have reached a foreign audience — or the Greek public. The fact that these claims never made the Greek press and that Arvanitis was censored for simply commenting on one of the articles shows just how prevalent censorship is in Greece today.

Dimitris Katsaris is a lawyer for four of the protesters who alleged that they were tortured in GADA after they were arrested during the 30 October protest. He says the way the situation has been handled is a clear “indication of censorship … interviews with the anti-fascists took place in a climate of terror; at the end, the policemen tried to grab me and push me away while I was complaining to them. All of this has been recorded.” However, the censorship didn’t stop there.

Ignoring the truth

Minister of Public Order Nikos Dendias claimed on SKAI TV talk show New Folders on 16 October that the Guardian report on police brutality was false, and threatened to sue the British paper if no proof of torture was found. He questioned the source of the photographs in Margaronis’s article — which showed an injured protester — and claimed that since the anti-fascists hadn’t gone on record with their names and reports, and hadn’t filed a lawsuit against the police, the Guardian was not justified in publishing the story.

Dendias also denied assertions that the arrested protesters were afraid to go on record because they had been threatened by police or extremist Golden Dawn supporters. According to Katsaris, although SKAI and the New Folders’ presenter Alexis Papahelas were already in possession of the photographs indicating police brutality at the time they interviewed Dendias, they did not report on the evidence or broadcast the photographs; had it not been for SYRIZA MP Dimitris Tsoukalis’s intervention on the show, the photos wouldn’t have been shown on air. “From the moment the Guardian’s report was published,” Katsaris says, “I was in contact with New Folders’ editor-in-chief. A week before the show I was providing him photos and evidence that proved torture by the police.” Katsaris says he called the editor-in-chief and asked him to intervene, but after many calls, he was told there was “‘no sufficient airtime” to provide the other side of the case. “So I could not contrast the ministers’ claims. I even asked them, given the material they had, to question the minister in a fair journalistic manner. They didn’t.”

It seems that every time a story about political actions by anti-fascist protesters unfolds, the censorship machinery of the government and Golden Dawn is set in motion. Niko Ago, an Albanian national who had been working as a journalist in Greece for 20 years, faced deportation after publishing a report about alleged criminal activity by Golden Dawn spokesman Ilias Kasidiaris, who is a member of parliament. Ago revealed that Kasidiaris was facing charges for allegedly participating in a 2007 attack on a postgraduate student and for illegal possession of a firearm .Since then, Ago has been receiving threatening emails containing defamatory and racist comments, some of which he published, including one that said ”Fuck you, Albanian … all you fucking Albanians are going to get what you deserve.”

Muzzling grassroots dissent

A great deal of pressure has also been brought to bear on independent, non-corporate media collectives or individuals who offer grassroots coverage. On 20 December 2012 and on 9 January 2013, police operations were carried out at the Villa Amalias squat in Athens, which has been an important meeting place for alternative political movements for the last 23 years, and at the Radiozones of Subversive Expression, an Athens-based radio station at the University of Economics and Business (ASOEE). Anarchists, leftists and political dissidents used both sites to organise labour, anti-fascist and antiracist rallies. As part of the operations connected with the ASOEE raid, in late December, anti-riot squads and police targeted immigrant street vendors originally from Nigeria, Morocco and Bangladesh who were selling pirated CDs and wooden animal figurines, as well as those who were regarded as supposedly condemning Greece to an economic decline, as the Radiozones website put it. The government, as well as Golden Dawn, tends to regard the economic activities of immigrants as detrimental to the national economy and as a threat to local workers.

Last October, during German Chancellor Angela Merkel’s visit to Greece, nearly 100 arrests took place, as Avgi newspaper reported. During the 6-7 November general strike, a group of parliamentarians from SYRIZA denounced the massive presence of undercover police on the streets of Athens. According to the coalition, they were both acting as provocateurs among peaceful protesters and arresting people who simply looked “suspicious”. The policy of  pre-emptive arrests has been repeatedly called unconstitutional by human rights organisations, including the Hellenic League for Human Rights.

Tomasz Grzyb/Demotix

During the annual Athens’ Polytechnic School rally on 17 November, dozens of pre-emptive arrests were reported on the website of the weekly political newspaper Kontra and activist websites documented many individual complaints. Indymedia Athens, the local collective of the international grassroots and activists network, published two complaints from citizens arrested on the day of the rally. In both cases, individuals were detained before the demonstration and were kept in custody for five hours without being allowed to contact a lawyer.

Mainstream media failed to report the events, while the government officially ignored complaints. Most news on the events came from blogs and free expression activists.

Online censorship

This systematic abuse is also taking place in the online environment. After posting a Facebook page that ridiculed a well-known Greek Orthodox monk, in late September 2012, a 27-year-old man was arrested on charges of‘”malicious blasphemy and religious insult”. Many online activists and commentators reflected that the page, called Elder Pastitsios the Pastafarian (which intentionally combines the name of the monk with a popular Greek food), angered members of Golden Dawn, who called for the man’s arrest under Greece’s anti-blasphemy laws. Free expression advocates responded, with the hashtag #FreeGeronPastitios trending on Twitter, and a petition addressed to parliament calling for the immediate release of the Facebook user was circulated online Vassilis Sotiropoulos, a lawyer and blogger specialising in internet legislation, writes:

“The legislature refuses to address the issue of internet censorship, thereby allowing law enforcers (prosecutors, police officers, judges and lawyers) to freely interpret and utilise the existing legal tools. This phenomenon has sometimes led to misunderstandings, which restrict individual rights of freedom of expression and privacy. Sotiropoulos added that the case of Elder Pastitsios provided perhaps the first example in Greece of an internet company disclosing information to the government in order to identify an individual accused of ‘alleged offences relating to religious satire’.

When considering freedom of speech as a universal human right, it is important to comprehend the social and economic context of our times. Currently, the political and economic elites, in Greece but elsewhere in Europe as well, are repositioning themselves within a capitalist system that is undergoing a continuous transformation.

Speaking to Al Jazeera, William I Robinson, Professor of Sociology and Global Studies at the University of California, Santa Barbara, argued that we are currently living through a phase of capitalism where “nation-state constraints” no longer apply. He stated that the “the strength of popular and working class movements around the world, in the wake of the global rebellions of the 1960s and the 1970s”, are now being effectively and successfully undermined.

Historically, during periods when there have been attempts to devalue the working class, there have also been challenges to the fundamental right to voice dissent, which has had a direct impact on efforts to improve living conditions. The current economic crisis, then, fits this model; it can also be used as an effective tool for the far right and those using fascist rhetoric to attack immigrants and workers.

Freedom of speech and protest in Greece must, then, be seen in very specific terms. The right to free expression is being systematically and effectively challenged by formidable political and economic agendas. It is crucial that activists, journalists and those being censored and abused continue to make their voices heard.

Christos Syllas is a freelance journalist in Athens. He tweets from @csyllas

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post Free speech takes a beating in Greece appeared first on Index on Censorship.

In a statement  announcing the report, Microsoft’s General Counsel Brad Smith acknowledged “the broadening public interest in how often law enforcement agencies request customer data from technology companies and how our industry responds to these requests” and commended Google and Twitter for leading the way with their annual transparency reports. In addition to user data requests, Google’s reports reveal takedown requests and, for the first time two weeks ago, the number of secretive national security letters it receives from the US government each year. Index encourages Microsoft to reveal this data in subsequent reports. As the number of companies issuing transparency reports grows, we encourage government agencies to do the same in the name of greater transparency and accountability.

Click here to read Microsoft’s report . Standout statistics include:

• 99 per cent of the 1,558 requests Microsoft complied with by disclosing customer content came in response to lawful warrants from US courts.
• Skype released no content in response to the 4,713 requests for user data it received but did release user account information in some cases.
• Two-thirds of the cases in which Microsoft disclosed non-content (ie user account details) came in response to requests from the US, the UK, Turkey, Germany and France.

The post New Microsoft report: a step towards transparency appeared first on Index on Censorship.

Brazil’s constitution guarantees both freedom of the press and free speech. The government does not impose censorship in the media. However, recent actions taken by the judiciary —  most of them concerning the removal of online content deemed defamatory —  have been extremely controversial.

In September 2012, a judge from the state of Mato Grosso do Sul ordered the arrest of Fabio Coelho, Google’s top executive in Brazil, after videos about a mayoral candidate were uploaded to YouTube. They were considered to be offensive to Alcides Bernal, who was running for office in the state’s capital city. When the posts were not immediately deleted, Brazil’s federal police temporarily detained Coelho.

Fabio Coelho’s case illustrates clearly how rigid the country’s laws are when it comes to offensive material. Still, many people argue that some of the judges’ decisions in these cases have been excessive. “There are gaps in Brazil’s electoral legislation that make this kind of situation possible”, said Google Brazil’s Public Policy Senior Counsel Marcel Leonardi when asked about Coelho’s detention. He hopes that the case will shine a light ‘on the need to adjust Brazil’s law, so that legitimate political outcries from internet users can be differentiated from, say, unlawful propaganda. The internet’s dynamics need to be understood.”

By not removing the videos, Google tried to make a case for the need for more liberal laws regarding free speech in Brazil, says Marcelo Träsel, Digital Journalism Professor at Pontifícia Universidade do Rio Grande do Sul University (PUCRS) in Porto Alegre. To make the internet giant responsible for the content ”is like making builders liable for crimes committed by apartment-buyers, or a bus company for crimes committed by its passengers”, he says. “As long as Google has proper means for filing complaints about content — and it does have them — and takes effective measures to restrict abuses when warned about them, the final responsibility must be laid upon the client that published controversial material”, he adds.

Falha de S Paulo is a blog that was shut down for parodying one of Brazil’s leading newspapers

When Folha de S Paulo, the country’s most influential daily newspaper, was criticised for its coverage of that year’s general elections in a blog called Falha de S Paulo (Folha, meaning “newspaper”, was replaced with falha, meaning “fail”), Folha filed a lawsuit claiming the blog’s logo, content, pictures and text font imitated its graphic design and confused web users. A judge demanded the website be removed and imposed a daily fine on its authors. On 20 February, the ban was upheld. “Censorship is supposed to be prohibited [in Brazil]“, said one of the blog’s creators, Lino Ito Bocchini, in an interview with the website Comunique- Se, “but in reality, free speech is only guaranteed to those who have money”. He later expressed his intention to appeal the decision. The case was raised with Frank la Rue, UN Special Rapporteur on Freedom of Opinion and Expression. In a recent visit to Brazil, he referred to the situation as “terrible”. Marcelo Träsel agrees that financial pressure comes into play in cases like this. “Politicians, business people and other powerful personalities found that they can silence their critics by filing lawsuits. Influential figures who become  the subject of a scandal are in a financial position to “torment” those who criticise them. “These people don’t even need to win in court”, Träsel says. Filing a lawsuit claiming damages could be enough to shut up a whistleblowing blogger, for example. ”I believe that’s the main threat to free speech in Brazil, and I believe that cases like Falha de S Paulo will grow in number.”

The practice of filing lawsuits to remove defamatory content from the internet also disturbs Google’s Marcel Leonardi. “The internet gives you the possibility to immediately respond to anyone, and in many different ways, like posting videos or creating hyperlinks,” he told Index. In situations like the Falha de S Paulo case, the best way of replying to criticism is by having an online presence so that people can “inform and reply to critics in one’s own virtual space,” he said. According to a recent Transparency Report published by Google, Brazil tops the list of countries that regularly removed digital content. In Leonardi’s opinion, Brazil will continue in this vein unless the “culture of lawsuits” is somehow overcome.

In Brazil, the judiciary has the exclusive power to order content to be taken down from a website — no government body has the right to do so. Other public agents, like federal prosecutors, can only file their demands through lawsuits, as regular attorneys must do. Leonardi believes Brazil is caught between liberal countries like the US, which seldom accepts non-copyright related content removal, and less democratic nations where the main problem isn’t content removal but attacks against publishers and direct government censorship over websites and social media.

Experts like PUCRS’s Marcelo Träsel say that adopting laws that differentiate the “virtual world” from traditional media would bring more clarity to judges’ decisions. In 2012, Congress debated two initiatives that pointed in this direction. One of them — a bill that deals with digital crimes, specifying correlated penalties — was voted in by lawmakers in early November.But another draft bill — called Marco Civil da Internet, or the Internet Civil Right Framework, seen as an “Internet Bill of Rights” — was shelved in November. Marco Civil would have guaranteed basic rights for users, content creators and online intermediaries and established that providers are not responsible for user content. It also would have guaranteed net neutrality, a move that angered the telecommunications industry, as it would prevent them from charging different rates for the various kinds of online content.

Deputy Alessandro Molon, who sponsored the bill, says Brazil’s main telecom companies lobbied hard against it, arguing it was contrary to the principles of the free market. “Approving Marco Civil would be a very important step to guarantee freedom of expression in Brazil”, notes Träsel. However, this type of guarantee for civil rights is unlikely to be seen in the country for the foreseeable future, and judges’ decisions are likely to remain as controversial and damaging as ever.

Rafael Spuldar is Index’s regional editor in Brazil. He tweets from @spuldar

This article appears in Fallout: free speech and the economic crisis. Click here for subscription options and more.

The post On the ground: Sao Paulo appeared first on Index on Censorship.

This is the sixth time we’ve released this data, and one trend has become clear: Government surveillance is on the rise.

• We received a request from a local law enforcement agency to remove 14 search results for linking to sites that criticize the police and claim individuals were involved in obscuring crimes. We did not remove content in response to this request. In addition, we received a request from another local law enforcement agency to remove a YouTube video for criticizing the agency of racism. We did not remove content in response to this request.
• The number of content removal requests we received increased by 98% compared to the previous reporting period

READ: Standing up to threats to digital freedom report [PDF]

The post Google report says government surveillance is on the rise appeared first on Index on Censorship.

This article originally appeared on Comment is Free on guardian.co.uk

Poor practice tends to get in the way of good intentions. During a meeting at the foreign office a few weeks ago, I gently reminded the decent-minded mandarins that they had a problem: Britain’s role in pushing internet freedom, and freedom of expression more generally, was being undermined by our own government departments. Trouble with rioters last summer? Well, go after BlackBerry messengers, David Cameron suggested, until it was pointed out to him that this was exactly the sort of thing the Egyptian and Tunisian regimes tried to do during the Arab spring.

Now, Britain’s parliamentarians, in all their familiar bluster, have come up with a new wheeze: why not order search engines to go on a giant trawl and delete – not only from their searches but from the internet itself – any material that is deemed to invade privacy?

“Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology,” reads the report published today by the joint Lords and Commons committee on privacy and injunctions. Translate these words into Russian or Mandarin and you can imagine the uproar.

Just in case these uppity tech firms don’t get the point, our MPs and peers recommend that if they refuse to censor voluntarily, they should be forced to do so through legislation. Our traditionally insular parliamentarians had, at least, the foresight to acknowledge that such “pro-active monitoring … may not be consistent” with the EU’s directive on e-commerce, but what the heck, why not give it a go?

The government is likely to thank the committee for its deliberations, and then give them a wide berth. In any case, everyone is waiting on Lord Justice Leveson’s hacking inquiry this autumn. The questioning I received in January at the hands of Leveson’s leading QC was more arduous, and informed, than the grand-standing of the committee. I was struck, when giving evidence in parliament in November, by their ignorance about the digital world. One of the few MPs who understands the issues, the Lib Dems’ Martin Horwood, tweeted straight after that session about the “embarrassing rudeness” and “ignorance about internet” from his “colleagues”.

Google (who, to declare an interest, I now advise part-time on freedom of expression) already complies with “take-down” requests by national authorities. However, if the content is legal in another state, it remains visible in that nation. These requests are now listed in a regular “transparency report“. What Google do not do is embark on giant fishing expeditions, acting as the global censor of taste, decency, legality and privacy.

Max Mosley, who successfully sued the News of the World over his privacy – appears to have seduced the committee. Not only have they bought completely his complaints that search engines have failed to erase in perpetuity all “offending pictures” of him, but they nearly bought his idea that all journalists be legally obliged to give prior notification to anyone they might be planning to write or broadcast about. His application was resoundingly thrown out by the European court of human rights – Index on Censorship was among those objecting to the application – but still the committee has recommended that Britain’s new beefed-up press regulator should require prior notification, “unless there are compelling reasons not to”.

The one, and perhaps only, innovative idea in this copious report is to put the onus on newspaper company directors to take responsibility for standards. One of the points that seems to be lost in the phone-hacking privacy maelstrom is that this has been much more a problem of the nexus between politicians, police and media moguls than it is about day-to-day journalism.

It is perhaps no surprise that parliamentarians are no great fans of the fourth estate. It was they who, still smarting after the expenses scandal, sought to exempt the issue from freedom of information scrutiny.

The UK needs a more professional and rigorous regulatory system. It needs executives and non-executives to be held more accountable for their actions. But this country already has some of the most restrictive laws in the democratic world, particularly when it comes to defamation and surveillance.

This report is replete with affirmations about the importance of free expression. MPs and peers talk a good talk, but fail to understand that – while improvements must be made to standards – the only people who benefit from a clampdown are the rich and powerful. Look at Hungary’s hideous new press law, with its statutes on licensing and other measures that some of the witnesses to Leveson have advocated. Look at France, where generations of politicians have claimed privacy to evade scrutiny on their financial misdemeanours. Ask yourself: does our media find out too much or too little about what is done in our name? It is no wonder that our politicians then seek to tame these feral beasts.

John Kampfner is the outgoing chief executive of Index

The post Tighter privacy laws would only serve the rich and powerful appeared first on Index on Censorship.

Transparency is at the heart of medical science. Every day decisions are made about when to stop and start treatment and how best to invest large sums of money in ways to protect the public from disease. All these rely on knowing as much as possible about the benefits compared to the risks of action or inaction.

No medical treatment is perfect or suitable for everyone — that’s why balancing risks and benefits is crucial. But healthcare is big business; it’s where science meets big money and not all research evidence makes it into the public domain — specifically into medical journals where doctors and academics glean their information.

Medical history is replete with examples of the benefits of a treatment being overhyped and potentially serious side-effects being buried, leading to poor decisions. This wastes public money and can cost lives.

Take the case of the drug lorcainide, used to regulate the heartbeat during a heart attack. In the early 80s, researchers in Nottingham carried out a study of the drug in 95 people using a method known as a randomised control trial. They noticed that nine out of the 48 people taking the drug died, compared to only one out of 47 who got a sugar pill, or placebo, instead.

At the time, the researchers thought that the high number of deaths in those given lorcainide might have been due to chance rather than the drug itself. For commercial reasons, the drug was not developed any further and the results of the trial were never published. However other, similar, heart drugs did make it onto the market and were widely used. But they too had serious safety problems and many were withdrawn.

According to Sir Iain Chalmers, a long-standing champion of transparency in medical research, the lorcainide trial might have been an early warning of trouble ahead for these other heart drugs. At the peak of their use in the late 80s, these medicines are estimated to have caused between 20,000 and 70,000 premature deaths every year in the US alone.

This is a particularly stark example of what might happen when critical evidence remains unavailable to doctors and researchers. Even when individual drugs do make it onto the market and have overcome the regulatory hurdles, information about their risks and benefits might well be hard to come by.

What the public doesn’t know

In western countries, legislation dictates that companies have to provide regulators with a thorough scientific dossier on all trials conducted on a drug so the data can be scrutinised before the drug is allowed onto the market. They are then required to do follow-up studies looking at any adverse reactions that might not have been picked up in the pre-market research. They must inform the authorities about what they find.

Many companies, however, have been reprimanded — mainly in the US courts — for hiding troubling side-effects of drugs, including: anti-depressants, such as Seroxat (known as Paxil in the US; generic name paroxetine) and painkillers, such as Vioxx (rofecoxib).

But it’s not always the companies which are unforthcoming about safety concerns; the regulators have dragged their feet too. Last year, the diabetes drug Avandia (rosiglitazone) was suspended from the market in Europe and severely restricted in the US because of an increased risk of heart problems. But this was long after both the manufacturer, GlaxoSmithKline (GSK), and the US regulator had reason to suspect an increase in serious side-effects.

Rather than the regulators — whose remit is to protect the public — it was the actions of the then New York attorney general, Eliot Spitzer, in a 2004 court case of GSK’s Seroxat, that led to the side-effects of Avandia coming to public attention. As part of a settlement with the state over its hiding of data on heightened suicide risk in teenagers who took the drug, GSK agreed to post results from its recent clinical studies on a website. And this included studies of the drug Avandia, many of which had been unpublished until then.

Three years later, Dr Steven Nissen, chairman of cardiovascular medicine at the high-profile Cleveland Clinic in the US, decided to analyse all the studies of Avandia on the website. Using a research method called meta-analysis, he pooled all the results together to see what they said overall. He found that the risk of having heart problems in people with diabetes who took the drug rose by 43 per cent compared to those who had diabetes and did not take it.

The following years entailed investigations into GSK’s conduct by the US Senate; intense deliberations by national drug regulators; questions about how we regulate medicine; and now pending class actions. But what really broke the case open was enforced transparency.
‘It’s important to realise what an important role publicly available trial results data played in the rosiglitazone story’, said Jerry Avorn, professor of medicine at Harvard Medical School.

During an investigation in collaboration with BBC’s Panorama in September 2010, the British Medical Journal looked into the different drug regulators’ attitudes towards transparency. In the US, the Food and Drug Administration’s (FDA) advisory committee discussions are held in public in front of the national press. Most of the relevant scientific documents are made available on a website in advance. Before the deliberations start, each panellist is required to declare any conflicts of interest in line with US legislation to increase transparency.

The UK: a need for transparency

But gaining an overall perspective of discussions within the European and UK regulators was far trickier. The BMJ attempted to speak to people who had sat on panels for them both, but they were bound by confidentiality clauses. Nor would Europe’s regulator release the names of the members of the scientific advisory group discussing the drug under the Freedom of Information Act (FOIA).

Doctors and the public in the UK had not been told that the national regulator had voted unanimously to take Avandia off the market several months before the European agency came to the same decision. If the European vote had gone the other way, who knows if the views of the UK’s panel would ever have been revealed.

Some say that open discussions and more transparency do not necessarily lead to better decisions. But documents obtained from the European regulators under the FOIA showed that advisers had concerns about Avandia’s side-effects from the outset. And knowing about these could have lent support to other academics who were ‘intimidated’ by the company, according to a 2007 report by the US Senate Finance Committee.

Manipulation of data

In 1999, when the drug was first licensed, Dr John Buse, a professor of medicine at the University of North Carolina who specialises in diabetes, told attendees of academic meetings that he was concerned that while Avandia lowered blood sugar, it also caused an increased risk of heart problems.

Concerned about the effects that his comments would have on their drug that had been touted for blockbuster status, executives at GSK (then SmithKline Beecham) devised “what appears to be an orchestrated plan to stifle his opinion”, the Senate Finance Committee report stated — in the light of internal company documents it had seen.

The report goes on to state that GSK executives labelled Buse a “renegade” and silenced his concerns about Avandia by complaining to his superiors and threatening a lawsuit. GSK prepared and required Buse to sign a letter claiming that he was no longer worried about cardiovascular risks associated with Avandia. Then, after he signed the letter, GSK officials began referring to it as Buse’s “retraction letter” to curry favour with a financial consulting company that was evaluating GSK’s products for investors. GSK has denied all allegations in the report, describing them as “absolutely false”.

Years later, Buse wrote a private email to a colleague detailing the incident with GSK: “I was certainly intimidated by them. … It makes me embarrassed to have caved in several years ago.”

Meanwhile, over on the other side of the Atlantic, EU drug agencies were drawing similar conclusions that the drug increased the risk of heart problems during their premarket discussions. In March 2000, Buse sent a letter to the FDA, saying Avandia might raise patients’ risk of heart attacks, and he criticised the company’s marketing, saying it employed “blatant selective manipulation of data” to overstate the drug’s benefits and understate its risks. Doctors may not have prescribed the drug if they had known from the outset there were issues around its safety.

Tamiflu and hidden data

But data transparency doesn’t just mean exposing harm done, it can also help to establish how well something works —- and that reported benefits aren’t just hype. Major international decisions are made on how best to tackle impending health crises based on how well a medical invention works as reported in journals, for example the UK government’s decision to stockpile the influenza drug Tamiflu.

Back in 2009, during the swine flu pandemic, the internationally respected Cochrane Collaboration, a network of independent academics, was commissioned by the NHS to look at the evidence about the benefits and risks of using Tamiflu — a drug the UK had spent around £500m on to treat all those infected in the outbreak.

The academics, led by Christopher Del Mar at Bond University in Australia, scoured the medical literature to find all the different relevant studies of the drug to pool together all the results to see what they said. They were also aware that there had been reports of suicides in Japan — the biggest consumers of Tamiflu — and they wanted to find out more.

But when they went about surveying the medical literature, not all of the trials they knew existed about the effects of the drug in healthy people appeared in the medical press. To fairly reflect the evidence, they needed to know exactly what all trials said. But they couldn’t access all the data they needed — the majority of trials were unpublished. This included the biggest, and therefore arguably the most important, trial conducted.

The UK government at the time had based its decision to stockpile Tamiflu in such large quantities on one particular piece of research published in 2003. This paper showed the dramatic benefits of giving Tamiflu to healthy people who got the flu and not just those who were at particular risk of getting sick. It claimed that the drug reduced the number of people taken to hospital with the flu by a half and reduced serious complications by around the same amount. Little wonder that health officials, concerned about the strain on the NHS, stockpiled the red and yellow pills in such vast quantities.

But this piece of research was funded by the drug’s manufacturer, Roche. It relied upon eight unpublished studies, each given code names, and used the company’s own statisticians to draw conclusions about the data. The two independent researchers named on the paper — who are supposed to be accountable for the content of the research — could not produce the unpublished studies when the Cochrane Collaboration asked them.

Medical research relies heavily on the ability to replicate the findings of another piece of research. This helps to show that a finding wasn’t fraudulent or simply due to chance.

But the Cochrane Collaboration couldn’t replicate the 2003 findings. Its calculations based on the publicly available papers were at odds with the claims made and it needed to see the unpublished studies, so it turned to the company.

Despite asking Roche repeatedly for the full complement of research documents showing that Tamiflu would stop so many healthy people from going into hospital, the whole set were never forthcoming. What it did provide was limited in detail and not what the Cochrane Collaboration needed. Roche did nothing illegal — it is its commercial information. But its commercial information has huge repercussions for public health spend — both in terms of direct costs of the drug and its distribution, but also on what economists call the opportunity costs. Half a billion spent on Tamiflu is half a billion not spent on some other wonder drug.

Del Mar and his team were left to wonder if these bold claims really did stack up — and if the unpublished trials really were the best of the lot, why were they unpublished?

What should have been a straightforward exercise to confirm the evidence base for current policy and practice became instead a complex investigation involving the Cochrane Collaboration, the BMJ and Channel 4 News. Not only did this unmask the extent of unpublished data, it found that the person who actually wrote some of the journal papers was never credited — known in the trade as ghostwriting.

This is not the benign undertaking it is in celebrity autobiographies. Commercial medical writing firms team up with drug companies to draft a series of academic papers aimed at medical journals to promote a carefully crafted message. In the case of Tamiflu, it was that the drug helps to reduce serious complications.

The lead investigator author who was named on the biggest trial – which was unpublished — said that he couldn’t remember ever having participated in the trial when the BMJ/Channel 4 News asked him. And the investigation revealed that documents submitted to Nice (the National Institute for Health and Clinical Excellence) show different investigator names appended to the key Tamiflu trials at different points — nowhere is it totally clear who took overall responsibility for all of the studies.

Behind closed doors

In a later twist, an investigation the BMJ conducted with the Bureau of Investigative Journalism revealed that experts who had been paid to promote Tamiflu were also authors of influential World Health Organisation (WHO) guidance on the treatment and prevention of pandemic flu. Nowhere were their conflicts of interest made public, despite the WHO having a specific policy to exclude those with such major competing interests from crafting guidelines. And when the scientific evidence pointed to a serious global outbreak of swine flu in early 2009, the WHO pulled together an international expert panel called the Emergency Committee. Keeping up the trend of opacity that had been a recurrent feature of pandemic planning, the committee executed its decisions — which the former health secretary, Alan Johnson, said would lead to “costly and risky” repercussions — behind closed doors in Geneva. An internal WHO investigation conducted by Harvey Fineberg, president of the US Institute of Medicine, criticised the lack of transparency and timely disclosure of conflicts of interest in May last year.

After an inauspicious start — with experts from within the US regulatory agency saying the benefits of healthy people taking the drug were marginal at the outset — Tamiflu sales sky-rocketed. This, coupled with a mild strain of flu and an abject lack of transparency, allowed conspiracy theories to ferment that alleged the WHO was in league with big pharma and had fostered fears of a pandemic in order to boost sales of drugs. And with blogosphere rumours abounding, not only has the WHO’s reputation taken a hit, scepticism might well accompany future warnings of serious flu outbreaks.

“Open access should be the default setting”

Yet again the role of the regulators comes into the spotlight. Roche said that it had supplied all the required data to US and EU regulatory authorities. Only after five months of chasing drug regulators with FOI requests, asking for the full study reports of trials that Roche submitted for its market approval, did the Cochrane Collaboration get some of what it asked for.

“Open access should be the default setting for drug trials once the drug is registered. The public pay for the drug, the public should have access to the facts, not sanitised versions of them”, one of the Cochrane collaborators, Dr Tom Jefferson, said. He believes that drug regulators should make data accessible once a drug comes onto the market. Others suggest that the regulators should also publish the data of drugs that have failed to make it onto the market. That way the situation that happened with locainide would be avoided.

This, too, might be helpful for those charged with making decisions about which drugs health services should use, such as Nice. Writing in the BMJ last year, researchers from the official German drug assessment body charged with synthesising evidence on the antidepressant Edronax (generic: reboxetine) reported they had encountered serious obstacles when they tried to get unpublished clinical trial information from the drug company that held the data.

Once they were able to integrate the astounding 74 per cent of patient data that had previously been unpublished, their conclusion was damning: Edronax (reboxetine) is “overall an ineffective and potentially harmful antidepressant”. This conclusion starkly contradicted the findings of other recent studies that pooled the data published by reputable journals.

But the amounts of data submitted to regulators can be voluminous — another reason why overstretched and underfunded drug authorities could benefit from the safeguard of publicly available data that academics could analyse. The Cochrane Collaboration is now in possession of over 24,000 pages to peruse and distil. But this kind of volume doesn’t deter researchers; they are actively asking for it.

In June this year, Medtronic, a medical technology company, drew widespread criticism in the US for its alleged failure in published research papers to mention the side-effects of a spinal treatment it manufactures. Capitalising on the company’s dip in public opinion, Harlan Krumholz, professor of medicine and public health at Yale University, approached Medtronic to take part in a transparency programme for industry that he had set up. He wanted access to all data it had on file — published and unpublished — to commission two independent reviews of it to see what it really said about safety.

“Industry’s reputation has really dropped substantially. People are concerned. They’ve lost confidence and trust in these companies,’”Krumholz said, adding: “Marketing has sometimes gotten the best of the companies and there have been some episodes that have tarnished their reputation. So they are in great need to show to the public that they are really interested in the societal good and want to contribute in ways that are meaningful.”

The company obliged and described its move as “unprecedented in the medical industry”. Needless to say, not all companies are keen on having their data analysed by independent researchers. When Krumholz first approached manufacturers asking them to allow the scientific community to vet their data when safety concerns had emerged, he was rebuffed at every turn. Nevertheless, he hopes this will change and transparency will become expected rather than simply celebrated. He hopes his scheme will make it impossible for other companies — particularly when questions are being raised about the safety of their products — to simply say that they are not going to share all the information they have that may be relevant.

Betraying trust

But there is a broader ethical aspect to selective publication. People often participate in clinical trials because they want to help grow scientific knowledge. And the very nature of many trials means there is a level of uncertainty of what a drug or device may do. This includes any potential benefits and it also involves risks.

According to Chalmers, those who don’t publish all the studies are betraying the trust of those who have volunteered themselves to medical science. “If a patient takes part in a clinical trial — which is essentially an experiment — they are doing their service to humanity and putting themselves at the disposal of science. Unless patients are explicitly told that the results won’t be published if the trial does not show what the researchers or the company want before they start the trial, there is a dereliction of duty on behalf of the researchers.”

Chalmers is uncompromising on what the fate of doctors who are complicit in the burying of bad results should be — they should face discipline that might include the loss of their right to practise medicine or conduct research. His mood reflects a growing concern about the moral duty of medical scientists to publish their results. Journal editors have railed against what they consider a distortion of the medical literature.

But for many years there has been comparative silence from organisations representing people conducting medical research. In the UK, the charge for transparency has been led by the Faculty of Pharmaceutical Medicine in London. Over a decade ago, it said:”Pharmaceutical physicians have a particular ethical responsibility to ensure that the evidence on which doctors should make their prescribing decisions is freely available.”

In June this year, the Royal Statistical Society followed suit and released a statement saying it is “committed to transparency in scientific and social research”. It said it is “crucially important that the results of scientific research should be made publicly available and disseminated as widely as is practical in a timely fashion after completion of the scientific investigation provided that there is no conflict with any legislation on confidentiality of data”.

Chalmers is critical of organisations who represent people conducting medical research — such as the Academy of Medical Sciences and the Royal College of Physicians — which refuse to sign up to a bill of transparency.

Attempts have been made to limit a researcher’s ability to hide trials that they may not want to come to light. Registers of trials sprang up. In 2005, the International Committee of Medical Journal Editors said its journals would only publish trials that were fully registered before they started — which should make trials that went missing much easier to spot. Then, in 2007, the US implemented legislation to ensure that all trials protocols are listed on a public searchable website called clinicaltrials.gov. Companies are supposed to update the information with changes or highlight when and where their research has been published. But the BMJ has found instances where the information on the website is out of date. And, unless someone goes through the database systematically to identify what studies have surfaced publicly, it’s hard to pin down exactly what impact the register has had on publication bias.

But once again, Europe trails behind in terms of transparency. The names of the trials being conducted in the EU appear on the EudraCT database. But crucial details of the study design and where it’s taking place are not on the website.

Europe: an example of how bad it can get

If data transparency is an issue for drugs, the opacity surrounding medical device governance is in a different league. Medical devices cover a wide range of products from adhesive bandages and syringes to heavy duty implantables, such as hip prostheses, pacemakers and stents.

Representatives of the drug industry marvel at how devices get away with a comparative lack of government and public oversight both in the US and the EU. Debates about the perceived flaws in the US system have been hammered out in public — the media weighing in on what they considered to be a failure of their regulators to protect the public adequately. Front page coverage of hip replacements failing and heart devices misfiring has forced discussions about inadequacies in their system into the US Congress.

But this has not happened to the same extent in Europe. One senior US official asked me why the European media has not scrutinised device regulation in the way that the American press had. In the States, Europe has been held up as an example of how bad things can actually get — with patients on this side of the Atlantic having been described as “guinea pigs”.

A joint BMJ/Channel 4 Dispatches in May this year didn’t do much to quell concerns. The EU system of approval by agreement between manufacturer and a commercial regulatory body operates under conditions of almost total commercial secrecy and is overseen in a hands-off manner by national regulatory authorities. Manufacturers submit data to a private body, which then assesses it to see if it is fit for market, and it is then allowed to display a CE mark. It is the same process that non-medical products such as mobile phones and toys go through.

As Nick Freemantle, professor of epidemiology at UCL, said: “The current European regulatory framework — CE marking — might provide sufficient safeguards for electric toasters and kettles, but it is not adequate for treatments that can affect symptoms, health related quality of life, serious morbidity and mortality.”

Representatives of device manufacturers say that the European light touch regulation approach is fine — that there is no evidence it is any worse than America’s. But, as the medical adage goes, absence of evidence is not evidence of absence.

There is no way of knowing what percentage of serious medical devices are faulty, poorly designed or have had to be recalled, because the European authorities have no centrally maintained register listing the devices on the market. In short, they do not know exactly what patients have had put into them in the first place.

Nor do they know on what evidence market entry was based. No European governmental regulator has it — scientific data sits with the manufacturers and the private companies that “approve” the device. As the head of device regulation in the US, Dr Jeffrey Shuren, said: “For the public in the EU, there is no transparency. The approval [requirements] are just what deal is cut between the device company and the private [organisation].”

Even data about devices that have been pulled from the market is virtually impossible to come by. When the BMJ — together with two doctors from Oxford University — contacted 192 manufacturers of withdrawn medical devices requesting evidence of the clinical data used to approve their devices, they denied us access, claiming that “clinical data is proprietary information”, that it was “company confidential information” and that they could discuss only “publicly available information” — of which there is very little.

Likewise, when we asked the relevant commercial regulatory bodies for the scientific rationale for approval of various devices that had been recalled, the results were stark. This information was classed as confidential because they were working as a client on behalf of the manufacturers — not the people who have them implanted in their bodies.

Even the Freedom of Information Act is of little help in obtaining information on any adverse events. The BMJ/Channel 4 Dispatches attempts to get access to adverse incident reports for specific implantables from the UK national regulator through the act were thwarted because it is overridden by medical device legislation. Article 15 of the EU Medical Devices Directive states: “Member States shall ensure that all the parties involved in the application of this Directive are bound to observe confidentiality with regard to all information obtained in carrying out their tasks.”

Even the Association of British Healthcare Industries, a trade organisation of device manufacturers, agrees that the lack of transparency leads to misunderstanding and mistrust. “Today it is very hard for anyone, even manufacturers and authorities, let alone citizens, to find out what products are approved to be on the market. We would like to see enhanced transparency and information to patients, citizens and all EU government authorities.”

Signs of change

So what does this mean? It means that doctors and patients are left to trust the companies to provide them with information about the benefits and harms of using their products. But with little scrutiny, oversight and transparency, there are no guarantees of this being a fair reflection of what their data — where they have it — actually says.

But there is a movement for change. As Krumholz says: “I think one day people will look back and say now wait a minute. Half of the data were beyond public view and yet people were making decisions every day about these products? How did you let that happen? And I’m not sure how we let it happen.

“But I hope we’ll enter an era where that will be over, and in fact there will be a great sharing of data, that we’ll be able to have a public dialogue that’s truly informed by the totality of evidence, and that we’ll be able to make choices that are based on all of that
evidence, knowing that there are no perfect drugs. That’s always going to be a trade off. But we ought to be informed by all the evidence when we’re making these decisions.”

This article appears in Dark Matter the new edition of Index on Censorship magazine, which explores science and censorship.

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In addition to accessing user-data, the report points to a rise in censorship. Google announced it had received six requests from the British government and police to remove 135 videos for “national security” reasons, compared with zero requests during the previous six months. The Home Office has sought to justify the intrusion by stating that “the government takes the threat of online extremist or hate content very seriously”, but the requests point to an ongoing tension between citizens’ right to privacy and national security. It also puts into sharp focus current limits on free speech, based on the claim that online materials play a significant role in radicalization and are therefore legitimate targets for censorship. Following revelations Roshonara Choudhry took inspiration from YouTube talks by the late radical preacher Anwar al Awlaki in the attempted murder of Labour MP Stephen Timms, the total number of items that British authorities sought to censor more than doubled from 156 to 333.

But tensions over censorship have become equally salient in other countries. In India, the government placed a request for censorship of protests against social leaders and the use of offensive language in reference to religious leaders. Although Google declined the majority of these requests, it locally restricted videos that appeared to violate local laws prohibiting speech that could incite enmity between communities, inline with its official modus operandi. The report provides insight into how Google complies with local laws, even if they appear designed to stifle free speech, such as in Turkey, where Google restricted users from seeing material about the private lives of political officials. It also restricted Thai users from accessing 90 per cent of YouTube videos deemed insulting to Thailand’s monarchy, an illegal act under local laws.

Google has itself played a significant part in raising questions over the legitimacy of government intrusion into private data and the curtailing of freedom of informationand it is part of the company’s strategy to spotlight the issue of government access to citizens’ online information. Google is part of the “Due Process Coalition,” along with AOL, AT&T, Microsoft, and Facebook, a group which pushes for reform to the US Electronic Communications Privacy Act, a 1986 law that allows government investigators to review users’ online information (including email and other stored data) without a warrant.The internet giant has also said it hopes its report will contribute to the ongoing public discussion on the ways the internet needs to be regulated. Dorothy Chou, senior policy analyst at Google stated, referring to the report: “We believe that providing this level of detail highlights the need to modernise laws like the Electronic Communications Privacy Act, which regulates government access to user information and was written 25 years ago — long before the average person had ever heard of email.” Others have also added that the expansion of online activity is out of sync with out-dated legislation.  This has left companies with access to sensitive private data open to government intrusion, such as concerning web-user data in the US, where in many instances laws donot require a search warrant.

Derrick Harris of Gigaom claims that companies like Google are in the sensitive position of having to interpret laws that are too old to properly address these requests: “Content-removal requests come in before there has been any real legal proceeding, and platform providers such as Google are forced to play judge and jury. They must balance legal risks against free speech in deciding whether content should stay up or be removed.”

This raises concerns over the possible erosion of freedom of speech and personal privacy, through a failure to outline updated legislation which can adequately protect internet users.

The US, long regarded as a bastion of free speech through its constitutional grounding, currently leads the world in government requests for information on citizens’ online activity, sending 5,950 requests for data about Google users and services between 1 January and 30 June 2011, a 29 per cent increase over the previous six months. Given that Google says it complied wholly or partially with 93 percent of those requests, an almost 40 percent compared to a year earlier, both Google’s responses and the legislation underlying them, raise fundamental questions over digital safety and privacy.

Google’s report also indicates that compared to the previous six months, the number of content removal requests it received from the United States increased by 70 percent. Worryingly, this included requests for it to remove videos of police brutality and the defamation of police officers, to which the group declined to comply. In the US, Google says, it received 92 requests for data removal, covering 757 pieces of content, including YouTube videos and content posted in Google Groups. The company says it complied (at least partially) with 63 percent of these requests, but left information alone in cases where it didn’t appear to violate Google’s Terms of Service or local laws. Company spokesman Stephen Rosenthal stated “we don’t simply censor on request, we ensure there is a case for removal.” But Jim Killock, executive director of the Open Rights Group, has argued that given that YouTube is a public platform, any steps to censor it should be backed with a court order and some form of judicial process: “Police seem to be advising Google on what material might be breaking the law, and then Google decides to censor this material without a court order.”

Killock raised concerns over freedom of the media and its potential misuse as a police tool to gather evidence, referring to British prime minister David Cameron’s urging of news outlets to hand over to police all material collected during the UK riots.

The report’s findings suggest the need to rethink the idea of cyber-space as a place of unadulterated freedom, through its lack of regulation. Rather, the rise in government requests for accessing personal data and attempts to censor materials without any recourse to legal due process, suggests internet uses may be better protected through increased regulation which can adequately define the boundaries of state intrusion and ensure companies, like Google, are not left unchecked to make critical decisions about freedom of expression.

Myriam Francois-Cerrah is a writer, journalist, budding academic

The post Google: a case for internet regulation? appeared first on Index on Censorship.

First Amendment scholar Geoffrey R Stone wrote for Index back in 2008 that the American public’s right to know had been one of the greatest casualties of the Bush Administration. A previous colleague of Barack Obama at the University of Chicago Law School, Stone had high hopes that the new president would reverse many of his predecessor’s damaging policies. That has not exactly been the case. This week, Stone sat down with Index to assess Obama’s record on transparency, which, he concludes, may be the single most important — and fragile — civil liberties issue in the age of the War on Terror.

Index: When you wrote for Index at the end of the Bush Administration, the state of the public right’s to know had largely been damaged by government secrecy. At the time, what were you hoping would happen under the Obama Administration?

Stone: I was hopeful that when President Obama took office he would have a much more open sense of the importance of the actions of government being made transparent to the American people. Certainly, that was a theme in his campaign. So I think it was reasonable to expect major change in some of the Bush-era policies.

Index: In some cases, that has happened, particularly around changes Obama has made to Freedom of Information policy and classification standards.

Stone: Right. Most notably, the President has changed the standard for the classification of information. Under President George W Bush, the prior standard was expanded to allow greater classification, so that any material that, if disclosed might have harm to the national security, was to be classified. Under the Clinton Administration, and now under the Obama Administration, the standard was changed to say that classification was permissible only if the potential harm to the national security outweighs the value of the disclosure of the information to the public, which is a more appropriate way to strike the balance between the need of the public to know, and the need of the government to keep things confidential. So, in some respects, the Obama Administration has made significant progress. But in lots of other areas, I think it’s been disappointing.

Index: Can you walk through those areas?

Stone: One of those areas has to do with journalist-source privilege. Forty-nine states and the District of Columbia provide a privilege to journalists not to disclose the identities of confidential informants, either at all or unless the government could show a very substantial justification and need for the identities. The federal government does not have such a privilege. Obama was a supporter of the bills in Congress to create a federal privilege, but since taking office, he’s been much more skeptical about it and has essentially suggested it should not be adopted if the information would be potentially harmful to national security. As a consequence, nothing has happened, no legislation has been enacted, and that’s quite disappointing.

Another area where he’s been less transparent than people had hoped had to do with the issue of whistleblowers. Federal law does not give any clear protection to whistleblowers in the national security context, and yet there are certainly circumstances – for example, where a whistleblower reveals information about illegal government policies, or reveals information about highly wasteful or incompetent government action, or simply reveals information that’s of grave importance to the public — where there should be a clear privilege for whistleblowers to expose that information without risk of prosecution. Once again, the legislation simply has been stalled in Congress. The President has not made any effort to push it along, and indeed has prosecuted several people in circumstances that are problematic.

The third area where he’s been disappointing has been in State Secrets. The State Secrets doctrine has been around almost 60 years, and it means that the federal government can refuse to reveal information in litigation if the information may be harmful to national security, and indeed can simply close down the litigation if it feels it can’t adequately defend itself without revealing the information. If, for example, someone sues the government claiming that the National Security Agency’s surveillance program initiated under President Bush violates federal law, what the Bush Administration did was to essentially assert that that litigation could not go forward because the only way that we could defend the legality of our policy was by revealing information to the court that would, if revealed, harm national security. And the Bush Administration took the position that judges should simply defer to the assertion by the government that there would be this damage. At the very least, it was expected that the Obama Administration would take a much more reserved approach with respect to the use of the State Secrets doctrine and would approve legislation that would limit the application of the doctrine to situations where the judge himself is in a position to evaluate the degree of potential danger to the national security. But, nothing has happened on that, again. The Administration has not moved forward on it and has indeed continued to assert the State Secrets doctrine in situations not dissimilar to that of the Bush Administration.

Index: You’ve mentioned that there are several areas in which Obama’s actions in the White House have been very different from what he said he believed when he was a senator. Do you think that’s because all of these issues look different when you’re looking at them from the White House, or because as president he’s been influenced by people with different views within the security world?

Stone: There are a lot of factors that enter into play. One of them is the sense that, “well now my guys are in charge, so we’re going to behave, so we trust ourselves to do well, and the public should trust us to do well, even if you couldn’t trust George Bush to exercise good judgment on these matters.” So one part of this is that when you’re in a position of authority, you believe your motives are good, and therefore there’s no need for a check on your behaviour. That’s a natural phenomenon, it happens all the time, and I think it plays a role.

Part of it may be that you have a better appreciation of the complexities of the situation than you did before you were inside, and that with that greater appreciation, you in fact wisely changed your position, because you recognised it’s not as easy to do the things you thought should be done when you were outside the Administration.

A third factor is politics. Some of these [positions] would appear to be politically weak on national defence, and even though you believed it was the right thing to do, you might decide that to actually do them when you’re the president would cost you support. Your enemies would characterise you as being ineffectual when it comes to protecting the nation from external enemies. And therefore, you don’t want to expose yourself to that kind of attack, even though you still believe the right thing to do on the merits of the issue, as opposed to larger issue of electability, would be to change the law.

Fourth, there are relationships with other people in your Administration that you have to be cognisant of. You don’t want to alienate unnecessarily – even though you’re the boss – people in your administration, like members of the military or Defence Department by doing what you believe is the right thing and they believe is the wrong thing. You may believe you’re right but decide “I don’t really want to alienate all these people by overriding what they think is their better judgement on these matters.”

There are lots of reasons why these changes [in position] may take place, and some of them are better than others. But I suspect in varying degrees, all of them play a role.

Index: Particularly around the Thomas Drake case, there has been a lot made out of the fact that Obama has been a more aggressive pursuer of whistleblowers than any of his predecessors. Is it fair to characterise him that way, or is that more of a statistical anomaly given that he inherited many of these cases from the Bush Administration?

Stone: I think the latter. My guess is that Obama is not more aggressive; it’s just that he has more cases that are holdovers from situations that arose in the prior Administration. I have no reason to believe that he’s actually being more aggressive than the Bush Administration would have been in the same circumstances.

Index: Do you think that since the administration is actively pursuing the handful of whistleblower cases it has to essentially create a chilling effect on other would-be whistleblowers?

Stone: I think that’s exactly right. There’s no real need to punish these people –– they’re not going to be in the position again to be whistleblowers. If nothing else, they’ve been fired, and never again given a security clearance. So, the punishment of them, and the pursuit of them, is clearly designed to deter others in the future from following their example. You don’t want to be prosecuted and investigated and have your life exposed in the press, and that’s going to make people who are tempted to be whistleblowers to think twice, and three times, before they actually act on it. I think the purpose here is much less the prevention of harm by these people in the future, it’s really about sending a message to other government employees not to do this.

Index: You’ve written a lot about how in past wartimes, the US has made some bad decisions restricting civil liberties – but that we’ve always snapped out of it and later restored rights that were taken away during wartime. The War on Terror seems like a different situation, in that it may not have an obvious end. Given the pattern throughout US history, should we be concerned now that we may be giving up some rights, and it won’t be clear when the time has come that we can have them back again?

Stone: I’ve always been skeptical of the notion of it being a “war without end.” When you were in the middle of World War II, or the middle of the Civil War, you didn’t know when it was going to end. You only knew when it was going to end after it was over. It’s true this is not a conventional war where you can defeat the enemy in as neat a way as you could by capturing the Confederate Army, but I suspect this war will end. And I think the rhetoric of that is blown too much out of proportion on both sides – among those who say “we can’t mess around here because it’ll be a life-and-death struggle as far as the eye can see,” and those who say that “there won’t be an end to this, so we have to be especially wary.” I’m much more closely aligned with the latter. If you believe it’s an unlimited war, or at least a long war, then the message you should take from that is not that we should pull out all the stops –– do whatever you can to win this war, civil liberties be damned –– but that we should be especially cautious.

If you ask, “What are the freedoms that we’ve given up as a consequence of 9/11 thus far?” it’s actually not that easy to identify specific things that are egregious. It’s not like the Civil War, where there was a suspension of habeas corpus throughout most of the United States. Or World War I, where there were prosecutions of anyone who criticised the war or the draft. Or World War II, where we had the Japanese internment.

The issues that are most threatening are the questions of transparency. Because the government can’t any longer suppress dissent, it has an even greater political need to prevent the public from knowing things. Whereas you could once control public discourse by making it a crime to criticise the government, you can’t do that any more, which means you’ve got to really do what you can to prevent people from criticising the government. That’s the instability that’s created here that’s most troublesome.

Guantanamo is a serious concern, and the temptations we fell into –– both with respect to torture and with respect to detention even of American citizens – were very dangerous. But those practices were abandoned pretty quickly. I think it’s the transparency issue that’s the most important, and potentially the most damaging.

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By harnessing the internet to expose the hidden mechanics of war, WikiLeaks puts governments on notice — obsessive secrecy cannot be sustained. Emily Butselaar reports

The most interesting element of WikiLeak’s publication of almost 400,000 leaked secret Iraq war files has been the lack of criticism. This time, military claims that the leaks threaten security and will put the lives of coalition troops in Afghanistan and Iraq in danger have been widely ignored.

There is clearly a public interest in the conduct of wars by our armies and governments and the files reveal that the US did — despite earlier denials — record civilian casualties. They also confirmed the existence of the now infamous Frago 242, the 2004 US army order that directed coalition troops not to investigate allegations of abuse unless US forces were involved. Some of the documents detail thousands of incidents of often stomach-turning torture, abuse and molestation.  And others demonstrate governments’ excessive reliance on secrecy.

The anodyne nature of many of the documents demonstrates the over-classification of sensitive material.  Secrecy rather than transparency is the norm — national security the justification even where that argument has no validity. If governments are to seek some secrets, they must cultivate a greater culture of transparency as the convention. The US Department of Defence has admitted that July’s unauthorised release of the so called war logs — 91,731 classified US military records from the war in Afghanistan  — has not resulted in the disclosure of sensitive intelligence sources.

Julian Assange, Wikileaks’ founder and spokesman, and his band of hacker activists set up the whistleblower site in 2006. With its simple “keep the bastards honest” ethos, Wikileaks was carefully designed to be an “uncensorable system for untraceable mass leaking”. It aimed to discourage unethical behaviour by airing governments’ and corporations’ dirty laundry in public, putting their secrets out there in the public realm.

But with its success — and its many exposés — has come criticism. Earlier this year it released a shocking video of a 2007 US attack in Iraq.  Alongside the unedited footage it released an edited 17-minute version that critics claimed was misleading. The release and the title they gave it, “Collateral Murder”, marked WikiLeaks’ move from reporting to advocacy: it was actively protesting the war in Afghanistan.

Handwringing began over the site’s move from objectivity. No longer would it be just a repository of raw source documents. Assange expressed surprise that the site had ever been cast as a bastion of impartiality, describing the concept as idiocy. But a politically active stance made it easier for outsiders to attack the site’s integrity. It could no longer be seen as an objective, neutral spokesman, a change of image that may have long-term ramifications.

The site was also damaged by failures in WikiLeaks “harm minimisation” system, the system by which they redact information. When Reporters Without Borders accused Julian Assange of “incredible irresponsibility” after the release of the Afghan War logs, he cited a lack of resources, an argument it is difficult to find sympathy with when the safety of individuals is involved.

For an organisation on a mission for total transparency the organisation is notoriously secretive about its own activity. It maintains its cloak and dagger antics are necessary to protect its sources, but the very questions that WikiLeaks was set up to address, power without accountability or transparency, can be applied to its own operations.

Today’s Independent focuses on internal rows that have been long-rumoured within WikiLeaks amidst claims that the focus on the conflicts in Iraq and Afghanistan has subsumed the rest of the organisation’s activities.

It’s easy to forget just how many stories WikiLeaks has broken. Its tremendous success has meant the site has often struggled under the volume of users. It has faced down corrupt governments, investment banks and the famously litigious Church of Scientology, made public top-secret internet censorship lists and broken injunctions — as in the case of the press gag granted to UK solicitors Carter Ruck in the interests of their client, Trafigura.

It’s possible the site will eventually force governments world wide to re-examine concepts of privacy, transparency and secrecy. WikiLeaks is just the vehicle, in the internet age leaks will continue. All governments can do is strive towards a greater culture of transparency if they want to keep their legitimate secrets under wraps.

Emily Butselaar is online editor of Index on Censorship

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