How (not) to censor: procedural First Amendment values and Internet censorship worldwide.

Author:Nunziato, Dawn C.
 
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TABLE OF CONTENTS I. INTRODUCTION II. OVERVIEW OF GLOBAL INTERNET CENSORSHIP III. FIRST AMENDMENT PROCEDURAL VALUES IV. INTERNATIONAL PROTECTIONS FOR FREEDOM OF EXPRESSION--IN REAL SPACE AND CYBERSPACE V. FIRST AMENDMENT PROCEDURAL VALUES, CONSTITUTIONAL VALUES, AND GLOBAL INTERNET CENSORSHIP A. "Private" ISP Filtering and the State Action Doctrine B. Procedural Safeguards for Free Speech under the Law Of Prior Restraints 1. Ex Ante and Midstream "Prior" Restraints 2. Prior Restraints Imposed to Restrict Child Pornography are Subject to the Most Stringent Procedural Safeguards 3. Categories of Prohibited Speech Should Be Clearly Defined and Delineated 4. Openness and Transparency within Filtering Systems 5. Filtering Schemes Should Provide for Appealability of Filtering Determinations C. Limiting Extraterritorial Effects of Each Country's Filtering Scheme VI. CONCLUSION I. INTRODUCTION

A growing number of countries censor speech on the Internet--dictatorships and democracies alike. (2) Free speech advocates deplore this state of affairs and argue for achievement of a worldwide consensus in which all countries accord their citizens nearly unrestricted Internet access. This utopia of uncensored Internet access is, however, radically different from the current state of affairs and--given the trend toward more, not less, control over Internet access--is not likely to be achieved in the near future. Calls for the rest of the world to adopt the United States' First Amendment's version of broad free speech protections (like that recently made by Secretary of State Hillary Clinton) (3) are not likely to be heeded, especially since the United States is far from the mainstream of speech protections among democracies. (4) Furthermore, given the extent and technical success of efforts to censor Internet speech throughout the world, free speech utopians can no longer rest comfortably on the assurance issued by Internet pioneer John Gilmore two decades ago that "the Net interprets censorship as damage and routes around it." (5) Given that countries in recent years have successfully reined in the Internet and reimposed geographical controls and, with them, the prerogatives of the sovereign upon the formerly untamed, unregulable, and a geographic nature of the Internet, free speech utopians can no longer rest assured that the "nature of the Internet" itself will combat and resist issues of censorship. For those of us committed to maximizing the potential for a free and open Internet, a different approach is therefore warranted.

Instead of arguing that the world should adopt the First Amendment's exceptionally broad substantive free speech protections or that an international consensus regarding free speech protections should be reached, in this Article I focus on the particular procedures by which countries censor and argue for the adoption of concrete and specific steps by which these countries should improve their implementation of Internet filtering systems (6) to better achieve their own substantive goals, as well as to achieve more speech-friendly results. While it is to be expected that different countries will adopt different substantive values regarding which Internet speech to restrict (for example, how to define and whether to restrict hate speech, Holocaust denial, pornography, etc.), (7) in restricting such categories of speech, I argue that countries should adhere to important procedural values and stringent procedural constraints (such as those embodied in First Amendment jurisprudence and the Due Process Clause). This strategy for enhancing free speech protections in nations throughout the world has the benefit of likely being palatable to other countries, because it does not require that they forego the prerogative of the sovereign to adopt and implement their own substantive free speech values. Rather, the approach I suggest assumes as its starting point the substantive free speech values adopted by each country, but recommends the adoption of meaningful procedures to safeguard whatever free speech values each country has adopted for its citizens.

In short, while I do not contend that countries the world over should implement substantive First Amendment values, I argue that other countries can and should implement procedural First Amendment and Due Process values. Adoption of such procedural First Amendment values would require sharply constraining the "prior restraints" on speech that are embodied in nationwide filtering systems, and implementing meaningful procedural safeguards on any prior restraints imposed, including operating filtering systems in an open and transparent manner that accords affected Internet users notice and an opportunity to respond to--and appeal--speech-restrictive actions.

  1. OVERVIEW OF GLOBAL INTERNET CENSORSHIP

    It is an unfortunate truth that today, many countries censor Internet content--dictatorships and democracies alike--and the number of countries doing so is growing every year. This set of censorial regimes includes the obvious--repressive regimes like China, North Korea, and others on Reporters Without Borders 10 worst enemies of press freedom list (8)--but also those countries we might least expect, including liberal democracies like the U.K., other western democracies, Asian democracies like South Korea, as well as Canada and Australia. According to the Open Net Initiative, more than three dozen states around the world now impose state-mandated technical filtering of speech on the Internet. (9)

    Western European democracies, which we might expect to have liberal Internet free speech regimes, in fact have imposed a variety of types of restrictions on Internet speech and restrict categories of speech that are protected elsewhere in the world. Under the Council of Europe's cybercrime treaty, (10) hate speech is prohibited, as is Holocaust denial. Because such content is illegal, ISPs in countries adopting the treaty must take down such content if it is hosted domestically or block such content if it is hosted overseas. The United Kingdom has led the way in restricting access content deemed harmful, through the Project Cleanfeed program implemented not by the state per se but by a nominally private entity, British Telecom, which I discuss in greater detail below. Norway, Sweden, Denmark, Italy, Germany, and Finland have followed the U.K.'s lead and have restricted Internet access to categories of speech that they deem harmful. Other countries have implemented Internet filers to restrict certain categories of political speech or speech that is critical of their governments. Switzerland has blocked political sites that are critical of the Swiss government, while Turkey has required its ISPs to block websites, including YouTube, that host content insulting to Turkey's founder Mustafa Kemal Ataturk or to "Turkishness" generally. (11) South Korea, while shedding decades of authoritarian rule and adopting a democratic constitution in 1987, nonetheless actively imposes restrictions on political speech on the Internet, mandating that its ISPs block websites that contain pro-North Korea content or that promote the reunification of North and South Korea. South Korea also severely restricts political and election-related speech and has blocked access to or removed hundreds of thousands of election-related websites. (12)

    Following the lead of the U.K. and Canada, Australia is poised to initiate one of the most restrictive regimes for Internet speech to date among democratic countries and plans to implement a nationwide mandatory Internet filtering system. The Australian Federal Government has announced that it will introduce "mandatory ISP-level filtering" of certain content deemed unprotected under its content classification scheme. Under this mandatory system, Australian ISPs will be required to block websites that contain harmful content proscribed by the state, including content that broadly deals with "matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults." (13)

    In short, pervasive Internet censorship has extended well beyond the usual suspects--China, Saudi Arabia, North Korea, etc.--to established liberal democracies like the U.K., Canada, and Australia. Furthermore, many of these countries implement their nationwide filtering regimes in a manner that is not open or transparent and that does not provide their citizens with notice or the opportunity to respond or to appeal adverse speech determinations. (14) Below I discuss certain First Amendment procedural values and constitutional values generally that I contend should be adopted by countries in implementing such Internet filtering regimes, even while they maintain their own substantive values regarding which categories of speech to protect and which to prohibit.

  2. FIRST AMENDMENT PROCEDURAL VALUES

    It is generally recognized that--aside from a few recent exceptions like its treatment of WikiLeaks websites (15)---the United States has adopted and implemented protections for free speech that are among the strongest of any country worldwide. (16) What is less well understood is that such protections not only have a substantive dimension--defined in terms of the categories of speech that merit protection--like hate speech, group libel, virtual child pornography, and (non-obscene) pornography generally--but also procedural dimensions, which mandate the procedures and "sensitive tools" required for distinguishing categories of unprotected speech from protected speech and set forth procedures regarding how restrictions on unprotected speech should be implemented and scrutinized. First and foremost, the First Amendment's prior restraint doctrine greatly disfavors the imposition of prior restraints on, as compared to subsequent punishment of...

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