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“Digital” means copying. Attempts to defend copyright the old-fashioned way could have unforeseen consequences for the web, says Joe McNamee.
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
With a crushing majority of 40 in favour, 0 against and 5 abstentions, the Civil Liberties Committee of the European Parliament has voted against a European Commission proposal to introduce mandatory EU-wide web blocking. This comes as a result of a campaign by European Digital Rights, supported by organisations such as the German Association of Child Abuse Victims against Web Blocking and the European ISP Association.
In the year since the original proposal was launched, parliamentarians have grown increasingly concerned by the lack of vision of the European Commission regarding the proposal’s aims. At meeting after meeting, commission representatives and the commissioner herself were unable to provide any evidence that blocking would serve a purpose, they were not even able to be clear on what blocking was meant to achieve.
They started by saying that blocking would “disrupt” commercial child-porn networks, until their own research showed that this is a small and diminishing problem. Then they said it was to stop accidental access, until they were unable to show this was an actual problem or that blocking would help. Finally, they said that it would help victims psychologically — although any policy which leaves abuse images on the internet is hardly likely to do this. The permanent retreat into ever-more facile arguments eventually started grating on parliamentarians who, like the citizens they represent, deserve better. A restriction on the right to communication cannot be based on soundbites and gut reactions.
At the same time, parliamentarians became increasingly aware of the damage that existing blocking systems are doing to both child protection and fundamental rights in those countries where it is already imposed. They saw how countries like Denmark and Sweden create blocking lists outside the rule of law, sometimes leaving whole websites abroad blocked but with no way of even knowing — the accusatory and defamatory blocking page being shown only to people in the countries doing the blocking.
The blocking approach in Denmark, Sweden and the UK breaks every element of the European Convention on Human Rights. It is neither “necessary” nor is it “prescribed by law” in those countries. How can child abuse material have such a low priority that its regulation is the only crime which does not require countermeasures to be laid down in law? Worse still, once the blocking veil is cast thoughtlessly and lawlessly over the allegedly illegal sites abroad and over government inaction to have the websites removed, countries promptly lose the will to take even minimal measures to address the crime. A Danish police official, for example, said in a speech to the German Federal Parliament that they don’t see any need to send reports of these serious crimes to the United States or Russia. Which other serious crime would be treated in this way? Why does blocking destroy the will of governments to treat online child abuse with the seriousness it deserves? Why would child protection organisations ever dream of supporting such a counterproductive measure?
This is the essence of the text agreed by the European Parliament’s Committee on the evening of 14 February. The text demands effective action against the crimes — it demands supervision of the member states’ efforts through a yearly report on their activities. It removes the obligation on member states to introduce blocking and places new measures on member states that insist on blocking in order to at least move in the direction of respect for basic fundamental rights. It chooses concrete child protection measures over symbols, excuses and failure. 14 February… a day to start loving the European Parliament.
Read the European Digital Rights report on web blocking here
Joe McNamee works as Advocacy Coordinatory for European Digital Rights in Brussels (EDRi). He works on issues related to privacy, cybercrime, intellectual property, freedom of information/communication and related topics.
The successful campaign by 17 state attorneys general in America to persuade advertising website craigslist to “voluntarily” delete the “Adult Services” section of its website raises two interesting questions:
1. Why did they launch this campaign?
2. What does this approach mean for freedom of expression in the United States?
1. The letter (read here) from the attorneys general does not say and does not imply that the exploitation that they claim is reflected in the “adult services” section of craigslist was created by the existence of the site. The letter also does not seek to argue that the exploitation will cease to happen when the people behind these advertisements are forced to rely on a multitude of other outlets to publicise their services once craigslist has succumbed to the pressure.
The one, unmentioned (unmentionable?) problem that would be solved by the deletion of that section of the website, is the visibility of scale of the sex trade in the United States and the failures of the law and of law enforcement in dealing with the exploitation referred to by the highest legal officers in the 17 states in their letter.
If we assume that that the scale of the exploitation is as big as the attorneys general claim, this visibility is an embarrassment from a political perspective. From a law enforcement perspective, having that much evidence in one location, but without the will or resources to investigate or prosecute, this visibility is a major irritation. Closing the section of craigslist and sending those advertisements to a thousand other locations online will not solve the problem (indeed, it would obviously make investigation and prosecution vastly more difficult) but it will greatly help resolve a major political problem for elected law enforcement officials.
2. All US state attorneys general take an oath of office, which varies from state to state, but which normally includes an undertaking to support the Constitution of the United States. In their letter, the attorneys general are making an undeniable effort to create media pressure on a private company to decide what information is made available to the public, without once claiming that craigslist is acting illegally. Virtually the entire letter is written not as a legal analysis from legal professionals, but as a tabloid analysis to pander to tabloid headlines. Walking away from an interview after being accused of operating the “Walmart of child sex trafficking” is portrayed as an indication of guilt. It is difficult to imagine just how inadequate the work of the law enforcement authorities is, if criminals can freely use this “Walmart” in the apparent certainty that they will not be investigated, prosecuted and punished. The real problem that will be solved by craigslist’s self-censorship is the visibility of law enforcement failures.
If the most senior legal officials in 17 states, officials who have sworn an oath to support the United States Constitution — can exploit the press to require self-censorship, what is next? In this case, the attorneys general did not ask for new laws laws that would, by their analysis, help fight child sex trafficking. Instead, they exploited media hype to force a private company to make decisions on what private citizens could communicate. This will not be the last example of this approach and, with each “success” where the first amendment is circumvented by coercion, distortion and headlines, the tabloids and politicians will become a little bit braver and their demands will become a little bit more ambitious.
Joe McNamee is EU advocacy co-ordinator at European Digital Rights
Blocking websites that show images of child abuse doesn’t work – but EU politicians still think it is a better policy than deletion says Joe McNamee
The European Commissioner for Home Affairs, Cecilia Malström, is proposing a directive this week to block websites that show images of child abuse.
While tackling such websites is clearly laudable, we should not be misled by a politically motivated and ultimately destructive measure. Europe’s approach is in fact counterproductive, dangerous and could ultimately lead to gross abuses against the most vulnerable in society. The only truly effective way to address these abhorrent crimes is an international measure that has the websites deleted as quickly as possible. All available resources – including resources currently wasted on blocking measures – should be spent on the identification and rescue of victims, and on ensuring that the criminals behind the websites and peer-to-peer trafficking are prosecuted with the full force of the law.
Blocking websites merely offers an illusion of action, reducing pressure for effective policies to be implemented and for the international community to tackle the issue head on. As a result, citizens are led to believe that something is being done, and politicians can take refuge in a populist policy in the full knowledge that blocking has no positive benefits and leaves the websites online.
It is difficult to understand why policy on this issue is so passive. If there were websites that contained evidence of murder, it would be ludicrous to suggest that they be blocked rather than deleted and all possible efforts made to identify the victims and prosecute the murderers.
It is disturbing to note that every international trade agreement signed by the European Union includes strict requirements on protection of intellectual property, but none contain elements to encourage the removal of child abuse websites. Louis Vuitton handbags and Cartier watches are given a higher priority in international legal co-operation than abused young people.
Despite the lack of effective action, on average there is a new international treaty approximately every two years banning child abuse, with smiling politicians posing for press photos and demonstrating their determination by signing and sometimes even ratifying the agreements. Yet the “binding” obligation on states party to the United Nations child rights convention (to take all bilateral and multilateral actions to prevent the “exploitative use of children in pornographic performances and materials”) appears to be the victim of global amnesia. The policy of supporting internet blocking, at either a national or international level, supports and facilitates this inaction.
The internet was designed with the aim of ensuring that any one block on the network can be worked around – this is fundamental to how it works. Therefore, blocking is almost by definition doomed to failure and a waste of resources that could be deployed more effectively through deleting the information at source. At the core of this issue are real human beings and a technologically inadequate block will do less than nothing to protect them.
Politicians will sometimes argue that blocking will stop deliberate access or that it will stop accidental access to sites or that the aim is to stop commercial distribution of illegal images. But the truth is that it is not only exceptionally easy to evade blocking, it is also ultimately ineffective as sites now move location and web address ever more quickly, so it won’t stop deliberate access. No statistics have been produced to indicate that accidental access of actually illegal sites could either be solved by blocking or that the problem is a major one. For the problem of commercial websites, there is only a limited number of online payment methods, so ensuring a level of law enforcement that would deter subscribers would be a far more wide-reaching solution.
Though blocking is useless, it is becoming an increasingly popular policy, resulting in the censorship of more and more types of information across Europe, thanks to well-funded lobbying campaigns. The UK recently narrowly avoided legislation requiring blocking of websites to protect intellectual property. Denmark is proposing criminal sanctions for ISPs that provide access to gambling websites and Lithuania is proposing blocking for websites that are considered to endanger the family values defended by its constitution – with all the inherent dangers that this will have for free speech.
This is an edited extract of an article in the new issue of Index on Censorship. To read the rest of the piece, subscribe now.