The beginning of the end of Internet freedom.

Author:Nunziato, Dawn C.
Position::State-mandated Internet filtering systems
  1. INTRODUCTION A. The United Kingdom's Expanding Nationwide Filtering System II. PROCEDURAL PROTECTIONS FOR SPEECH A. International Procedural Protections for Speech B. United States Procedural Protections for Speech III. THE PROCEDURAL DIMENSIONS OF CURRENT INTERNET FILTERING SYSTEMS A. Ability to Challenge Decision to Filter Content B. Meaningful Notice to Affected Internet Users C. Categories of Prohibited Speech Should Be Clearly and Precisely Defined IV. CONCLUSION I. INTRODUCTION

    It was long assumed that the Internet would bring about greater opportunities for free expression than any other medium. In recent years, however, the Internet has increasingly become a tool of censorship, as scores of countries around the world have imposed nationwide filtering regimes to block their citizens' access to various types of Internet speech that they deem harmful. Instead of trending toward greater freedom, the Internet is now trending toward greater censorship and control, as many countries--including democracies such as the United Kingdom--are seeking to exercise greater and greater control over this medium. (1) Today, more than forty countries--in addition to the usual suspects like China, Saudi Arabia, and North Korea--have implemented nationwide filtering of speech on the Internet, and this number is growing. (2) Among democracies, the United Kingdom and Australia are leading the way in implementing filters to attempt to control their citizens' access to harmful content. Indeed, British Prime Minister David Cameron announced in July that mandatory "family-friendly" filters will be imposed by default on all new computers by the end of 2013. (3) By the end of 2014, such filters will be imposed by default on all existing computers as well, creating a virtual tyranny of the default. (4) Such extensive mandatory filtering builds on the solid foundation of the United Kingdom's comprehensive system for filtering and blocking harmful Internet content through the mechanisms set in motion by an entity known as the Internet Watch Foundation. The United Kingdom's experience is paralleled by similar events in Australia. For much of 2012, the Australian government attempted to introduce mandatory internet service provide (ISP)-level filtering of certain content, requiring all Australian ISPs to block content dealing 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." (5) Although political considerations caused this plan to be formally withdrawn, it is likely that Australia will remain in the business of Internet filtering for the foreseeable future. (6) In short, liberal democratic regimes, as well as authoritarian regimes, are now implementing unprecedented restrictions on Internet content and changing the face of Internet freedom.

    Nationwide Internet filtering has become a powerful tool for many governments to control the content that their citizens are able to access. Given the extent and increasing effectiveness of efforts to censor Internet speech throughout the world, protectors of Internet free speech can no longer rest comfortably on the assurance given by Internet pioneer John Gilmore two decades ago that "the Net interprets censorship as damage and routes around it." (7) Although free speech advocates broadly denounce such censorship, it is likely that many countries--having seized upon these powerful tools of control--will continue to restrict Internet content to prohibit their citizens from accessing speech that they deem to be harmful.

    It is commonly understood--and understandable--that different countries around the world adopt different definitions of what speech is protected and what speech is unprotected, online as well as offline. Given, for example, European countries' horrific experiences with the Holocaust, it is not surprising that some of these countries consider racial and religious hate speech to be unprotected. While there is substantial divergence on the substantive contours of free speech protections (8)--which categories of speech are protected and which are not--there is some convergence among nations regarding procedural protections for speech. (9) These procedural protections are inherent in and flow from widely-shared concepts of fundamental due process, and have been embodied in the widely-adopted International Covenant on Civil and Political Rights (the ICCPR), as recently construed by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression to provide procedural protections for Internet speech. (10) A second important source of procedural protections for Internet speech is the Anglo-American tradition's hostility toward prior restraints on speech and (relative) preference for subsequent punishment as a means of restricting expression. Over the past four hundred years, Anglo-American jurisprudence has developed a presumption against the legality of any prior censorship or prior restraints on expression and has imposed a set of procedural safeguards that must he in place before any system of prior restraint can be legally imposed. (11) The nationwide filtering systems that have become increasingly pervasive in the past few years embody prior restraints on speech--restrictions on speech imposed prior to a judicial determination of the speech's illegality (12)--and fail to accord these important procedural protections for speech embodied in the International Covenant on Civil and Political Rights and in Anglo-American free speech jurisprudence. Nationwide filtering systems should either be jettisoned or revised so as to accord these fundamental procedural protections on speech.

    In Part II, this Article focuses on the nationwide filtering systems espoused by the United Kingdom. Part III analyzes the procedural protections on free speech that have been articulated both under the International Covenant on Civil and Political Rights and within the U.S. legal tradition, especially with respect to prior restraints on speech. In Part IV, the Article compares the procedural protections provided under the United Kingdom's Internet filtering system with the protections required within U.S. jurisprudence and the ICCPR, and finds this nationwide filtering system to be lacking. I propose modifications to this system and suggest that if nationwide filtering systems are to be imposed, certain procedural safeguards must be implemented within any such system--especially those that are imposed within liberal democracies.

    1. The United Kingdom's Expanding Nationwide Filtering System

    Journey with us to a state where an unaccountable panel of censors vets 95 per cent of citizens' domestic internet connections. The content coming into each home is checked against a mysterious blacklist by a group overseen by nobody, which keeps secret the list of censored URLs not just from citizens, but from internet service providers themselves. And until recently, few in that country even knew the body existed. Are we in China? Iran? Saudi Arabia? No--the United Kingdom.... (13) To understand what is at stake in a nationwide filtering system like that adopted--and soon to be expanded--in the United Kingdom, and how the system implicates the rights of Internet users, consider the operation of a filtering scheme translated to the real space context. Imagine a vast real space forum for authors and readers in which millions of authors bring their books to be made available for billions of potentially interested readers. The authors place their books on the bookshelves of the forum and then depart. Billions of readers also come to the forum to search for books of potential interest to them. Unbeknownst to either the authors or the readers, before the content of any book is made available to the readers--or at some point after the books are placed on the bookshelves--the books are scrutinized by unseen and unknown censors to determine whether the content is "permissible," according to some criteria that are unstated and undiscoverable. If these censors determine that a book or some of its content is impermissible, it is placed on a blacklist and removed from circulation. When the readers enter the forum to search for books of potential interest to them, they do not know which books have been removed, nor do the authors of the banned books ever learn whether (or why) their books have been removed. This scenario replicates in real space what occurs in cyberspace under a nationwide filtering system like that in operation in the United Kingdom when websites are placed on blacklists and the country's Internet users are prohibited from accessing such content.

    In July 2013, U.K. Prime Minister David Cameron surprised the world by announcing that "family-friendly" filters would soon be imposed by default on all computers in the nation. (14) Such filters would affect both wireline and wireless Internet access. (15) Cameron offered no details as to how the filters would work or exactly which categories of speech they would attempt to block--other than that ISPs themselves would administer the program. (16) If, as is likely, the new nationwide filtering system replicates the system already in place affecting mobile Internet access, it is likely that the following categories of content will be blocked by default: pornography, violent material, extremist and terrorist related content, anorexia and eating disorder websites, suicide related websites, alcohol, smoking, web forums, esoteric material, and, of course, web blocking circumvention tools. (17) Cameron did not offer any details about what remedies could be taken by citizens if legal material is mistakenly blocked by such filters, about which entities would be responsible for creating such filters and determining which websites fell under the...

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