From Quill to Cursor by OSCE Representative on Freedom of the Media

From Quill to Cursor

The Representative on Freedom of the M edia

Freedom of the Media in the Digital Era Papers from the Workshop on Freedom of the M edia and the Internet Vienna, 30 N ovember 2002

VIENNA 2003

REPRESENTATIVE O N FREEDO M O F THE MEDIA

Fro m Q uill to Curs o r Freedom of the Media in the Digital Era Papers from the Workshop on Freedom of the Media and the Internet Vienna, 30 N ovember 2002

Vienna 2003

The cover is a draw ing entitled Des Schreibers Hand (The Writer’s Hand) by the Germ an author and Nobel prize laureate (1999) Günter Grass. He has kindly let our O ffice use this as a label for publications of the O SCE Representative on Freedom of the Media. The draw ing w as created in the context of Grass’s novel Das Treffen in Telgte, dealing w ith literary authors at the tim e of the Thirty Years War.

The publisher thanks the Netherlands for its financial support to this publication

© 2003 O rganization for Security and Co-operation in Europe (O SCE) O ffice of the Representative on Freedom of the Media Kärntner Ring 5-7, Top 14, 2. DG, A-1010 Vienna Telephone: +43-1 512 21 450 Telefax: +43-1 512 21 459 E-m ail: pm -fom @osce.org The authors retain rights on the essay texts. Photograph on the cover: AP, Ng Han Guan Design: WerkstattKrystianBieniek, Vienna Printed by Eugen Ketterl, Vienna

Co ntents

Freim ut Duve Preface

Karin Spaink Introduction - Fro m Q uill to Curso r: Freedo m o f the Media in the D igital Era

Verena Metze-Mangold Universal Access to Cyberspace: Strategies o f the Intergo vernmental Co uncil o f the Info rmatio n fo r All Pro gramme (IFAP/ UNESCO ) 31 P谩ll Th贸rhallsson Freedo m o f the Media and the Internet

Sandy Starr The D iminishing Impo rtance o f Co nstitutio nal Rights in the Internet Age

Jennifer Jenkins The Impo rtance o f Public D o main fo r Creativity, Inno vatio n, and Culture in the D igital Age 73 Felipe Rodriquez Burning the Village to Ro ast the Pig: Censo rship o f O nline Media Glossary The Authors

85 110 116

Freimut D uve Preface

The Internet offers an unprecedented m eans for people all over the w orld to distribute, exchange and access inform ation. Inform ation and ideas on the Internet are typically not bound by state borders, w hich m akes it easier for people to circum vent existing m ethods of censorship. How ever, w hile the Internet is rapidly becom ing m ore w idespread and accepted, so are attem pts to curtail this new freedom of expression and the developm ent of new technologies also brings along new m eans of censorship. Even if crim inal contents or hate speech are accessible on the Internet, the advantages for freedom of expression outw eigh the dangers of m isuse by far. But although there m ight be a legitim ate need for regulation, this process m ust be closely m onitored to prevent form s of censorship from being im posed on the new infrastructure that w ould be intolerable w ith the classic m edia. In order to guarantee the freedom of the m edia on the Internet our prim e task is to identify the problem s and possible dangers that threaten this universal right. The first step in this direction has already been taken w ith the FO M w orkshop in Novem ber 2002 in Vienna, w here experts from a w ide range of organizations w ere brought together. The papers from the w orkshop are collected in this publication. The debate w ill be continued at the Conference on Freedom of the Media and the Internet, organized by m y O ffice, w hich w ill take place on 13 and 14 June 2003 in Am sterdam . Vienna, M arch 2003

FREIMUT D UVE

Karin Spaink Introduction Fro m Q uill to Curs o r: Fre e do m o f the M e dia in the D igital Era

New Technologies Ra ise New Persp ectives – a nd New Q uestions. ‘Technology is not just a value-neutral set of tools,’ as the Electronic Frontier Foundation (EFF) correctly observed. 1 New technologies (especially those concerning com m unication and the distribution of inform ation) invariably bring about new political and social relations. Precisely in so doing, they actually change the w orld, and our m inds. G utenberg. O nce know ledge, ideas, thoughts, insights, and theories started being w ritten dow n and being put into books, they suddenly acquired a less transient and volatile form . For the first tim e in the history of hum ankind one could literally hand dow n a body of know ledge and preserve it in its original form , not only for oneself and for others, but also for future generations. While w e now routinely aw ard prizes to books, in the pre-Gutenberg era books them selves w ere the prize. Yet, in part because of their sheer cost – books had to be m anually copied, one by one, at a painstakingly slow rate – in practice, books w ere m onopolized and w ere only accessible to a very sm all elite: som e scholars, som e of the higher clergy, and, of course, the rich. 1 Electronic Frontier Foundation, Building People In: Architecture Is Policy <http://w w w.eff.org/buildin.htm l>

KARIN SPAINK

It w as the invention of the printing press that m ade books m ore affordable and m ore generally accessible. When the excruciating process of copying m anuscripts by hand w as supplanted by the m echanical printing press, w ider sections of society could finally gain access to books. A rem arkable interaction w as initiated: w ith the appearance of books, the w ish to becom e literate becam e general and the ability to read spread outside the elites that had previously had access to handw ritten books. Increasing literacy in turn prom oted the publication of m ore books, thus creating a spiral of increasing abilities and know ledge for the m asses. The Gutenberg revolution allow ed individuals to educate them selves and m ade them less dependent upon w hat others – their superiors, the clergy, or even the travelling troubadours – w ould relay to them or w ere w illing to sum m arize for them . After the onset of printing, ideas could spread faster and further, w hilst retaining their original form , w ithout intervention or m ediation (or ‘filtering’, as one w ould now say), and one no longer had to rely on experts or the elite to dissem inate or interpret these ideas. In short, the printing press had a trem endous liberating effect on people in general. It enabled them to becom e generally m ore know ledgeable and inform ed, generally m ore independent, and generally m ore equipped. O ne could even argue that the invention of the printing press w as one of the founding elem ents of dem ocratic society. Publishing Exp losion. Currently w e are in the m iddle – or perhaps it is only the onset? – of the digital revolution. Both the variety and the total volum e of available texts has increased m anifold since articles and books began to be published on the Internet. Som e statistics m ay serve to illustrate the gargantuan volum e of this digital explosion. 10

INTRO DUCTIO N

Usenet is the nam e for the collected new sgroups, w hich are organized by subject. Usenet w as developed in the 1980s for scientists to exchange inform ation and discuss ideas. By now, there are new sgroups about alm ost everything: from hobbies, lifestyle and sports to culture, science, and politics. In the early stages of Usenet, it w as possible to follow m ore or less all existing new sgroups and read all postings in them . Now adays, that is utterly im possible. By 18 Decem ber 2002, New szilla – one of the biggest new s servers in the w orld, run by the Dutch ISP XS4ALL – carried no less than 46,181 different new sgroups. The total volum e of Usenet postings is called the ‘new sfeed’. In March 2001, the global new sfeed w as measured to be 2 Gb of text 2 and 220 Gb of binaries (pictures, sound files, executables, etc.) per day. Less than 1.5 years later, in O ctober 2002, the global new sfeed had doubled to a daily 400 - 450 Gb.3 The num ber of w ebsites has increased even m ore spectacularly. The World Wide Web w as created in May 1993, w hen the first application w as invented that could present structured, hyperlinked text. That application w as Mosaic, the first brow ser ever. Already that sam e year, im ages could be integrated into the text. Much later, around 1996, sound and m oving im ages (film ) could be added to w eb pages.

2 Gb m eans ‘gigabyte’. O ne gigabyte equals 1024 m egabytes (Mb), a m egabyte contains 1024 kilobytes (Kb), and a kilobyte consists of 1024 bytes. Thus, a gigabyte is 1,073,741,824 bytes. For comparison’s sake: this document is 152,064 bytes long, so it w ould take 7061 tim es this text to get one gigabyte of data. 3 Erik Hensem a, FAQ /VVV: De XS4ALL newsservers (14 Decem ber 2002) <http:// groups.google.com /groups?safe=off&ie=UTF-8&oe=UTF-8&as_um sgid=new s servers-1039935300-3268% 40hensem a.net&lr=&hl=en>

KARIN SPAINK

The follow ing table presents the increase of w ebsites in the first three years of the WWW, at half-year intervals.4 Year 1993 1993 1994 1994 1995 1995

Mo nth June Decem ber June Decem ber June Decem ber

No . o f w ebsites 130 623 2,738 10,022 23,500 90,000

By the end of O ctober 2002, the num ber of individual pages indexed by Google, currently the prim e search engine, had reached alm ost 2.5 billion. Three m onths later, in January 2003 – just under ten years after the birth of the Web – that num ber had reached alm ost 3.1 billion.5 And although Google indexes a great deal, it doesn’t even index everything. Distributed and Shared Information Makes the Net Robust. The Internet is not only a publishing tool, it is also a distributing technology. Servers all over the w orld keep polling one another. New s servers for instance exchange articles w ith one another: ‘I have this bunch of new new sgroup articles, here ya go.’ ‘Thanks. O h, I already have som e of them . I’ll reject those and take the rest.’ In a sim ilar w ay, routers (w hich forw ard traffic betw een netw orks and keep track of w hich w ebsite is located w here) assist one another in finding out the shortest route to a w ebsite and in figuring a w ay to get there w hen a part of the netw ork is dow n. ‘I can’t reach w w w.osce.org. Can’t reach their hosting provider, a shackle in the chain from m e to them is m issing. Do you know how to get there?’ To w hich another router m ight reply: ‘Sure, I know another w ay. I’ll point you. 12

INTRO DUCTIO N

Go to that m achine, then take that one, and then...’ O r: ‘I can’t get there either. But I can get a few steps closer than you can. What if I ask som ebody in that neighbourhood?’ O r they’d say: ‘It takes m e 42 hops to reach X. How m any hops does it take you? 180? Well, here’s how I do it.’ All this filling in of the gaps, finding shortcuts, balancing traffic, sharing inform ation and circum venting fall-out is built into the system . It is an integral part of the underlying structure of the Internet – w hich is designed to w ork in such a w ay that if a connection betw een tw o distribution points breaks dow n, both servers w ill find new routes to reach one another.6 This basic structure is the backdrop of the fam ous adage that ‘The Internet perceives censorship as dam age [to the system ] and routes around it.’ It m eans that a disruption in the system – no m atter w hether it is caused by accident, error or m alice – w ill never bring dow n the system as a w hole. Ad op ting Routing Rela tions. A fascinating phenom enon, especially from the point of view of censorship and its prevention, is that Internet users have adopted this principle of routing around dam age as a m odel to base their ow n behaviour 4 In form ation taken from Net Gen esis (n ow defun ct), quoted in A Profile of the Internet <h ttp:/ / w w w .cw rl.utexas.edu/ ~ton ya/ 309m / class/ in tern et.h tm l> (sec-tion 2). I proudly testify th at m y w ebsite w as on e of th e 23,500 coun ted in Jun e 1995. 5 O n its front page Google states the exact num ber of indexed pages; the count is updated autom atically. 6 This is true only for the structure of the Net, not for its content. When the server hosting m y w ebsite is dow n, nobody can reach m y w ebsite. How ever, as far as routers are concerned – the m achines that point the w ay on the Internet by making data packets hop from one place to another – its tasks w ill readily be taken up by other routers. Thus, the dam age is m inim ized. 7 ‘Censorship’ in this respect should be taken broadly. It does not only refer to pages being yanked by governm ents or by other authorities, but also to pages being closed as a result of libel or copyright law.

KARIN SPAINK

upon. When a w eb page – or w orse, a w hole site – is under threat of censorship, 7 w ebsite ow ners often utilize their hum an netw orks to route around the im pending dam age. They ask their contacts to take copies of the besieged pages and to publish them elsew here, in less dangerous places. This phenom enon is know n as m irroring. And just as routers assist one another in finding the easiest w ay to reach a certain m achine, Internet users help one another – dutifully assisted by the courts, one m ight add tongue in cheek – to find the locus of least resistance, places w here certain m aterial w ill be the least challenged and the m ost secure. Because neo-Nazi sites w ill generally be prosecuted in m ost West European countries, such groups have w isened up and have taken their inform ation out of that continent. Since the USA provides a m uch broader level of protection for speech, that country has becom e the international host for sites like this. They have found political asylum there so to speak. Conversely, Singaporean pages about sexuality and religion and US sites about drugs are often hosted in Europe, w here such pages m eet w ith less resistance than in their country of origin. Especially for those w hose ideas and perspectives do not m atch the dom inant point of view, or w ho live in a repressive society, the Internet provides a w elcom e tool. A new spaper doesn’t need to be published in your ow n country for you to be able to access it. Additionally, the act of accessing certain inform ation becom es less public: w hen you ask for a m agazine in a shop, you have to do so openly, but on the Net, you can retrieve that inform ation w ithout the shop ow ner – or your neighbours, or the police – know ing anything about it. Suddenly, inform ation can be sm uggled out. O r in. Suddenly, the classical censoring of the m edia no longer w orks, nor do the standard m eans of social control. 14

INTRO DUCTIO N

Interna tiona liz ed Inform a tion. While governm ents and authorities m ay on the one hand dislike this internationalization of inform ation and routing around censorship, on the other hand they som etim es hope to reap a benefit by adopting the sam e practice them selves. The Netherlands for instance is not very pleased by ‘its’ neo-Nazi’s seeking digital refuge in the United States, yet it gladly hosts sites aim ed at a US audience craving m ore objective inform ation about recreational drugs. Sim ultaneously, CNN hopes to reach and inform the citizens of Middle Eastern countries and to circum vent the m edia restrictions im posed upon citizens of this region by their ow n governm ents. Indeed, the CIA has funded softw are that circum vents certain types of national censorship and that reenables foreign citizens to tune in to the Web version of The Voice of America.8 Various authorities try to lim it the im pact of this phenom enon by attem pting to curtail the Net in a variety of m anners. Until now, m ost of these censorship efforts have generally failed.9 This is partly because com puter experts are technically

8 In December 2001, Safew eb received seven million dollars from IN-Q -Tel, the CIA’s venture capital fund and a second investor for the developm ent of this softw are, w hich w as dubbed Triangle Boy. The product seem s to have been discontinued. Safew eb is how ever still in the business of thw arting those trying to police the Net. Recently, they released SEA Tsunam i for secure rem ote access: once you log in to Safew eb’s SEA, your activities on the Net can no longer be logged (see <http:// w w w.safew eb.com /sea_tsunam i_features.htm l>). Western states are m ore and m ore interested in such logs and the EU is currently discussing law s that m ake retention of user logs by their ISPs m andatory. The UK already has such a law, called the RIP Act. For m ore inform ation about Safew eb and SEA, see Thom as C. Greene, ‘US com pany defeats Brit RIP Act’, The Register, 17 January 2003 <http://w w w.theregister.co.uk/content/8/18017.htm l> 9 For an extensive overview of these censorship efforts, their dow nsides and their w orkarounds, see Felipe Rodriquez, ‘Burning the Village to Roast the Pig’, in this publication, 85-109. Bennett Haselton, how ever, points out that circum vention softw are is prone to fail in the long run; see Bennett Haselton, ‘List of possible w eaknesses in system s to circum vent Internet censorship’ <http://w w w.peace fire.org/circum ventor/list-of-possible-w eaknesses.htm l>

KARIN SPAINK

m ore proficient than their policy-m aking opponents and can, w ith som e effort, figure a w ay around restrictions and prohibitions and develop new protocols to share and access inform ation, and partly because censorship is by definition reactive, a response to a new ly created technical reality, and w ill thus alw ays be lagging behind.10 Yet, over the years attem pts at curtailing the Net have been getting increasingly know ledgeable and m ore difficult to circum vent. And w hile com puter experts often do find loopholes in censoring softw are or policies, and can w rite softw are or protocols that circum vent such m easures, this in turn usually m eans that program s are becom ing increasingly com plicated and thus difficult to use for the uninitiated.11 This shifting around of inform ation â&#x20AC;&#x201C; either politically and geographically, by finding the locus of least resistance, or technically, by distributing inform ation via rapidly evolving new protocols â&#x20AC;&#x201C; is part and parcel of the Net, just as integral and fundam ental to it as it is on the structural level of the Internet. Indeed censorship is perceived as dam age, and not only does the Net itself try to route around it, but Net users and developers attem pt to route around it as w ell. This phenom enon drastically changes the effect of national law and politics. Inform ation that is not legally available in a country can readily be served to a citizen of that country from a w ebsite located at the other side of the globe. And interestingly, the person requesting that inform ation w ill not even notice that it is com ing from elsew here. This m eans that the Internet has m ade national borders and political boundaries m ore diffuse than they w ere and has lessened their im portance, or at least has underm ined their strictness. National law s curtailing inform ation are sim ply not as effective as they used to be. The internationalization of inform ation 16

INTRO DUCTIO N

allow s citizens to partake of (or distribute) facts, know ledge, relays and experiences that they w ould otherw ise not have been able to access or share. The analogy w ith the effect of the Gutenberg press is apt. New Technologies Create Novel Needs and Responses. With the assistance of a cheap com puter and a m odem , or w ith an Internet café in the vicinity, anybody anyw here 12 can access foreign new spapers, start publishing their ow n m agazine, m ake their ideas and know ledge available to the w orld, read or publish stories w hich otherw ise w ould never cross the border, exchange and discuss ideas w ith people at the other end of the globe. A new ly arisen w ish is to block som e of these pages. This is not only practised by governm ents – and both China and Saudi Arabia are rather effective in this respect – but also by com panies, libraries and schools, the latter tw o usually at the governm ent’s behest. People at hom e do it too. 10 Historically, censorship is alw ays either circum vented through high tech (w hich is too difficult for censors), or by reverting to low tech (w hich is too com m on for it to be censored). When the USSR m ade printing difficult, dissidents fell back upon the m anual carbon-copying of books and articles (sam izdat); B92, the censored Serbian new s broadcaster, used both high and low tech and eventually depended upon a com bination of Internet cable connections for uploading broadcasts and foreign radio stations broadcasting them via m edium w ave. 11 PGP – encryption – is a good exam ple. While PGP provides an alm ost foolproof m ethod of rendering e-m ail com m unications illegible for all outsiders (and thus for snooping governm ents), m any people find it very difficult to use. Although PGP now adays com es w ith a broad variety of good and easy-to-use interfaces, som ehow PGP still has a too technical ‘feel’ for m ost people, w hich in itself w orks as a rather effective deterrent against using it, no m atter how useful or necessary PGP m ight be. 12 In principle, at least. Som e countries are badly connected, and the increasing habit of Western w ebsites to use lots of Flash and other heavy applications m akes it very difficult to view these w eb pages: it takes ages for them to load, so view ing them becom es very expensive. How ever, w eb space – i.e. publishing – is getting cheaper by the day, and there are a num ber of places w here one can get free w eb space (Lycos, Geocities, Tripod etc.). Postings on Usenet (new sgroups) are archived autom atically; one doesn’t even need to have a w ebsite to store them .

KARIN SPAINK

There are tw o basic strategies for blocking pages: im posed blocking and requested blocking. With im posed blocking, a governm ent orders that certain pages should be blocked nationw ide. This can be done via a national proxy (a m achine that handles all requests for w eb pages; it acts as an interm ediary betw een a personal w eb brow ser and w eb servers on the Net). The proxy is in such cases configured to refuse requests for any page that m atches certain (blacklisted) criteria. Saudi Arabia for instance routinely blocks all foreign pages relating to sex and politics. 13 China, on the other hand, blocks pages based on their IP num ber (crudely, their Internet address).14 Australia has im plem ented a system blocking specific national pages, but does not block international ones.15 In Germ any, the state of North Rhine-Westphalia has ordered ISPs and universities to block access to certain sites (m ostly, but not exclusively, neo-Nazi sites). 16 In the US, publicly funded schools and libraries are obliged to block pages deem ed to be unfit for children and teenagers.17 A nasty characteristic of this type of blocking is that alm ost invariably, it censors m ore than it purports to do. Especially blocking based on IP has dire consequences: it affects entire sites or som etim es even a series of w eb servers sharing the sam e IP, w hile actually only a few pages on those sites or servers fall w ithin the scope of the prohibition. Blockages of this type are very difficult to overcom e. Additionally, a shared characteristic of im posed blocking is that the citizen has no choice w hatsoever in the m atter. Requested blocking on the other hand is voluntary. It takes place at the userâ&#x20AC;&#x2122;s instigation and on the userâ&#x20AC;&#x2122;s com puter only. It is usually done to protect children and to present them w ith a custom ized, sanitized version of the Net. This type of blocking is done via com m ercial so-called censorw are. (It is 18

INTRO DUCTIO N

this kind of softw are that US public libraries and schools use, but in their case it is m andatory.) An interesting hybrid variant w as used by Scientology. The cult developed its ow n version of a censorw are package w hich, at the user’s end, blocks all pages critical of Scientology. Critics of the cult dubbed this censorw are Scienositter, after the package of w hich it w as a derivate: Cybersitter. Scienositter had one unexpected characteristic: it w as im posed upon unw itting cult m em bers. Scientology sold them a package to create instant ‘individualized’ proselytizing w eb pages; the program installed the Scienositter on the sly, thus preventing these m em bers – w ithout their consent – from seeing pages that Scientology deem s inappropriate because they oppose the organization’s ow n view.18 While voluntarily blocking pages on one’s ow n com puter is an unalienable right, blocking pages at school or libraries is an altogether different matter. Civil liberties organizations have m ade a pretty good case that censorw are program s actually filter out m ore than they profess to do and have – in the USA – started law suits asserting that such blocking of inform ation is 13 See Harvard researchers Jonathan Zittrain and Benjam in Edelm an, Documentation of Internet Filtering in Saudi Arabia <http://cyber.law.harvard.edu/filtering/ saudiarabia/> 14 Felipe Rodriquez describes the principle in his essay, ‘Burning the Village to Roast the Pig’, in this publication, 85-109. 15 See Electronic Frontiers Australia, Internet Censorship in Australia (20 Decem ber 2002) <http://w w w.efa.org.au/Issues/Censor/cens1.html>, and Felipe Rodriquez, ‘Burning the Village to Roast the Pig’, in this publication, 85-109. 16 Alexander J. Kleinjung, ‘Vom Daten-Highw ay auf die Straß e’, in the Germ an edition of C’T, Septem ber 2002. The law is heavily criticized by, am ongst others, Initiative für ein freies Internet; Plattform zur Veranstaltung von O nlineDem onstrationen (O DEM) <http://odem .org/>, and the Chaos Com puter Club (CCC) at <http://w w w.ccc.de/censorship/> 17 The US Congress passed the Children’s Internet Protection Act (CIPA) on 15 Decem ber 2000. The full text of the act is at <http://w w w.ifea.net/cipa.htm l> 18 See Scientology Censors W W W for M embers <http://scn.m artinobrien.com /ABUSE/ KRASEL/CO S/FILTER/FILTER1.HTM>

KARIN SPAINK

in fact unconstitutional. Indeed, on 31 May 2002, a federal court agreed w ith that criticism . The US state has appealed the ruling, and the case is currently being review ed by the US Suprem e Court.19 Fa shiona ble Self-Regula tion. Not only is inform ation shifting from place to place to find the locus of least resistance; m easures to contain inform ation are doing exactly the sam e. Slow ly, the governm ents of industrialized countries have arrived at the general agreem ent that discussions about, and m easures against, disputable w ebsites should not be carried out by them selves, but by others. In just a few years, so-called self-regulation of the Net has becom e one of the policy m akers’ new buzzw ords. Self-regulation m eans that the industry is assigned a m ajor role in policing content that is not clearly illegal, and therefore not directly punishable, and/or should reach agreem ent upon how to act w hen com plaints are received about w eb pages. The industry is asked to develop, possibly in co-operation w ith users’ interests groups (such as civil liberties and privacy organizations), rules for acceptable use, codes of conduct and procedures for the rem oval or suspension of disputed pages. The standard categories that are m entioned as areas w here selfregulation should be prom oted are child pornography, pornography, violence, racism , and ‘hate speech’20 . Alm ost all European national and supranational governm ental and official advisory bodies now adays prom ote such self-regulation. The Council of Europe for instance states: ‘International co-ordination should also involve the industry, w hich should be encouraged to develop codes of conduct and self-regulatory schem es. This co-ordination is also essential to guarantee the protection of m inors against content w hich is not strictly illegal, but m ay be harm ful and detrim ental to 20

INTRO DUCTIO N

their personal developm ent, in an environm ent w here traditional w ays of controlling access (for exam ple w atershed rules) do not w ork.’21 This proposal is a rephrasal of the Recom m endation Rec(2001)8 of the Com m ittee of Ministers to m em ber states on self-regulation concerning cyber content.22 Self-regulation w ill of course never be able to solve the fundamental problem of information travelling to the locus of least resistance. After all, w hen such inform ation has found a safe haven, that new abode is by definition a country w here that inform ation is fully legal. Policing legal m aterial is of course redundant and blatant nonsense. Taking this into account, the only area w here general agreem ent is at all possible is child pornography: it is forbidden in practically all countries. Then again, precisely because the trafficking in or displaying of child pornography is illegal everyw here, self-regulation is not necessary. There are solid law s against it. And policing illegal acts should not be relegated to private parties. All other contested material – from racism to depiction of sex – is legal in one country or another, and can thus never be banned from the Net. 19 The US Children’s Internet Protection Act is being fought by the ACLU, the Am erican Civil Liberties Union. The case is being reported on as it develops at <http://archive.aclu.org/features/f032001a.htm l> 20 ‘Hate speech’ is a loosely defined lump term used to denote the propagation of hatred against ethnic minorities. Sometimes they border on or are neo-Nazi types of pages. The amount of attention they get from both other media and policy makers is, how ever, somew hat disproportional. In 2000, Hatew atch.org counted betw een 450 and 500 ‘hard core’ hate sites and circa 1750 sites that it deemed ‘problematic’. (Source: QuickFacts: Hate and Hate Crimes <http://w w w.media-aw areness.ca/eng/ issues/stats/isshate.htm>). Let’s be very pessimistic and set the number at 50,000 pages all in all. Let’s then set the amount of all existing pages in 2000 at 1 billion, a rather high number. Basic maths tells us that even w ith these exaggerated figures ‘hate pages’ make up a mere 0.05 per cent of the total amount of pages. O ne w ould w ish that there w as as little racism and hatred in the analogue w orld. 21 Páll Thórhallsson, ‘Freedom of the Media and the Internet’, in this publication, 51. 22 Recom m endation Rec(2001)8 of the Com m ittee of Ministers to m em ber states on self-regulation concerning cyber content, adopted by the Com m ittee of Ministers on 5 Septem ber 2001. For the full text, see <http://cm .coe.int/ta/rec/2001/ 2001r8.htm >

KARIN SPAINK

M o v ing C ens o r s hip O ut o f t he Pub lic Realm. Apart from that, there are quite a num ber of draw backs to and loopholes in self-regulatory system s.23 First of all, and it is really begging the question, w hy should ‘content w hich is not strictly illegal’ (to quote the Council of Europe) be subjected to any kind of regulatory m easure or process? Parents are after all free – and encouraged – to install censorw are if they w ant to protect their children, w hile any kind of industry self-regulatory practice affects the rights of m ature Internet users to access m aterial that is ‘not strictly illegal’, w hich is a rather obscure w ay of saying that it m ight be in bad taste but it is actually legal, in w hich case the industry has no right to prevent access to it. Conversely, w here it concerns m aterial w hich is illegal in country A, but fully legal in country B w here it is hosted, the industry of country A has no right to prevent anyone from accessing it. The governm ent of country A can indeed decide to outlaw such material, but then they should take that responsibility upon them selves and not dum p it on the industry. Secondly, som e m aterial m ight indeed be on the borderline, but countries have a fully qualified system to m ake decisions about the acceptability and legality of specific m aterial: the courts. By m oving the assessm ent of the legality of such m aterial out of the court room , not only do the processes and criteria by w hich m aterial are judged becom e opaque, they additionally run a high risk of becoming arbitrary. Indeed, existing self-regulatory bodies – such as the censoring authority in Australia and the child pornography hotline in the UK – have already gained a reputation for being rem arkably furtive about their ow n proceedings. Needless to add that, unlike in court, the accused lack law yers and the possibility to appeal decisions. Thirdly, the term ‘self-regulation’ is highly deceptive. As the above show s, it is not about the industry regulating itself, 22

INTRO DUCTIO N

but about the industry regulating its customers. In other w ords, self-regulation prim arily concerns itself w ith regulating others. Fourthly, the industry is supposed to regulate som ething in w hich it itself has a stake – that of having a bloom ing business w ithout too m any hassles. ISPs w eren’t started to defend users’ rights, nor are they generally w illing to stand up for free speech w hen the effects of that speech m ight dam age their reputation or their revenues. In that sense, ISPs and their clients becom e opponents w henever an ISP receives a com plaint about one of its custom ers. Legally, the custom er m ight be in his full right to publish the disputed m aterial, but the ISP – facing a com plaint – is not likely to assist him to find argum ents in favour of publication. In other w ords, one of the parties involved in the conflict has been assigned com plete responsibility to decide upon the fine line betw een legality and illegality. The protection of the constitutional right to express one’s opinion is being put in the hands of the industry.24 Finally, w hat is fundam entally w rong w ith self-regulation is that it allow s governm ents to refuse to set rules and lim its, and lets them delegate the m atter to a private body, hoping to solve the issue in this w ay. In doing so, governm ents are privatizing censorship, w ithout assum ing responsibility and accountability for it them selves, and w ithout offering legal redress for either those censored or for those robbed of access to the censored content.

23 Sandy Starr elaborates on the them e in ‘The Dim inishing Im portance of Constitutional Rights in the Internet Age’, in this publication, 57-72. 24 A Sw edish case (Flashback facing MCI/Worldcom over one of its users) and a Dutch/US case (Xtended Internet facing Scientology over one of its users) are described in detail in Christiane Hardy and Karin Spaink, ‘Freedom of the Internet: O ur New Challenge’, O SCE Representative on Freedom of the M edia Yearbook 2001/2002 (Vienna, 2002), 129-43. In both cases, the providers stood up for their clients; in both cases, their upstream providers sim ply cut the ISP’s connection w ithout redress being possible.

KARIN SPAINK

Susceptible Search Engine. The gargantuan num ber of w eb pages resulting from the new digital publishing-and-distributing technique has created a dem and for new m eta-technologies: that of indexing and retrieving w eb pages and new sgroup postings. Indexing w eb pages and Usenet postings has becom e a m atter of prim e im portance. After all, w hat w ould be the use of publishing som ething in a new sgroup or on a w eb page, if nobody could find it in this vast sea of exponentially increasing inform ation? Without retrieval technologies, the only w ay to be inform ed about the existence of specific pages w ould be by w ord of m outh, w hich of course defeats the purpose. It w ould m ake the sharing and distribution of inform ation a local m atter once again. Search engines provide precisely this service. When you key in a few search term s, search engines w ill point you to pages or new sgroup postings that contain these term s. Som e search engines additionally rate pages by assum ed relevance, som e search engines organize them in coherent groups, som e do nothing but present long lists of so-called â&#x20AC;&#x2DC;hitsâ&#x20AC;&#x2122;. What all search engines have in com m on is that they guide you through the Web and Usenet, and assist you in finding w hat you w ere looking for. Search engines have becom e pivotal to the Net, to the degree that w ithout them , there is no w ay to find your w ay around. Their particular strength m akes them susceptible to censorship attacks, all the m ore so because the possibility to access pages or to censor them , are at heart tw o sides of the sam e coin. Indeed, w ithout the facility to sift through indices using search term s, censors w ouldnâ&#x20AC;&#x2122;t even be able to decide w hat pages to block in the first place... While finding a page is the result of filtering m assive am ounts of data in order to select a set based on specific criteria, blocking is filtering that inform ation in order to suppress that sam e set. 24

INTRO DUCTIO N

In the past few years, search engine censorship has been on the rise. Through a num ber of French court cases, the US based Yahoo auction site w as forced to prevent French users from perusing Nazi m em orabilia. While the relevant court decisions have finally been overturned in the US,25 by now a num ber of search engines have voluntarily adapted their local, nationalized versions so that people consulting the Germ an, French and Sw iss version of Google w ill not be able to find neo-Nazi or w hite suprem acy content, even though these pages are quite legal in the countries w here they are hosted and indexed.26 (How ever, the m other of all Googles, the international Google, <http://w w w.google.com >, still lists them and is readily accessible to Germ an, French and Sw iss users.) Also, the precise criteria for dropping pages from the nationalized search indices are com pletely unclear. Who decides w hat page is labelled as Nazi-like or neo-Nazi? O n w hat grounds?27 And w hat are the chances that these pages, after due process, w ould be deem ed on the verge but acceptable anyw ay in either Germ any, Sw itzerland or France? The reason w hy search engines engage in such censorship is obvious: to prevent law suits. The big question for the future is: how far w ill this local censoring go? Will the universal 25 A sum m ary of the ruling is given in U.S. Court Releases Yahoo! Inc. From Compliance With French Court O rder <http://w w w.ffhsj.com /bancm ail/pdf/011120.pdf>. For a m ore elaborate description, see Christiane Hardy and Karin Spaink, op. cit. 26 Jonathan Zittrain and Benjam in Edelm an from Harvard Law School have investigated Google at large and discovered that Google has dropped 113 sites, in w hole or in part, from its localized version for French, Germ an and Sw iss users (<http://w w w.google.fr>, <http://w w w.google.de> and <http://w w w.google.ch> respectively). See Jonathan Zittrain and Benjam in Edelm an, Localized Google Search Result Exclusions. Statement of Issues and Call for Data <http://cyber.law. harvard.edu/filtering/google/>. The paper gives a brief overview of other attempts to censor search engines. 27 Zittrain and Edelm an stress (op. cit.) that w hile â&#x20AC;&#x2DC;m any such sites seem to offer Neo-Nazi, w hite suprem acy, or other content objectionable or illegal in France and Germ any, [..] other affected sites are m ore difficult to cleanly categorize.â&#x20AC;&#x2122;

KARIN SPAINK

index – in this case, the one at google.com , rem ain generally accessible? And if not, w ill other – by then m ore daring – search engines supplant them ? New M onop olies: C onnectivity/Ba nd w id th. So far, w e have looked at new w ays of distributing and new m ethods of censorship. Another im portant issue is ow nership. Many m edia w atchdogs are w orried about concentration of ow nership leading to m edia m onopolies; the Italian case (Berlusconi) springs to m ind. How ever, there is no sim ilar w orry over m onopolies on the Internet. In som e countries, access to the Net is com pletely controlled by the governm ent. In China for instance, one needs to register before one can buy a m odem ; in som e countries, the only body providing Internet access is the governm ent-ow ned telco. In countries w here such a m onopoly exists, it is com paratively easy to censor users: since the governm ent controls access, it can restrict users or im pose a national proxy blocking specific pages (Saudi Arabia, Dubai, and Singapore all do this). In industrialized Western countries, m onopolies are on the rise. While a country m ay have m any ISPs providing Internet access, the ISPs them selves need to buy bandw idth and connectivity from so-called upstream providers. These upstream providers in turn have their ow n upstream providers w here they buy bandw idth and connectivity. Worldw ide, that specific m arket is ow ned by four or five com panies. If you follow the line upw ards in Sw eden, you w ill discover that all ISPs depend for their bandw idth and connectivity upon one single US-based m ultinational: MCI/Worldcom . In an infam ous case w here a user’s page repeatedly garnered com plaints and the user’s provider, Flashback, refused to block the page – the prosecutor had investigated the page 26

INTRO DUCTIO N

earlier and found it legal – a com plainant w ent to Flashback’s upstream provider, w ho then decided to block the w hole of Flashback. When Flashback tried to buy connectivity and bandw idth elsew here they discovered that MCI/Worldcom w as the final upstream provider in the w hole country – and MCI/Worldcom had told all their clients to refuse Flashback. All this happened over one single user’s page that the prosecutor had deem ed legal.28 Currently, w ireless Internet is on the rise.29 Wireless Internet operates in an unregulated and unlicensed band of spectrum , that is shared and available for use by anyone. Until now it w as m ost com m only used for personal appliances, such as for a m icrow ave oven, or a cordless hom e phone, and even for the radar ‘gun’ used by law enforcem ent to read the speed of a m oving vehicle. Unlike today’s w ired netw ork, a w ireless netw ork requires little m ore than an access point (abbreviated as AP). Access to a w ireless-based service doesn’t require an expensive connection to each user – there is no need for running w ires to each building, or for the installation of a satellite dish. Wireless technology is also far less expensive to deploy than the lim ited w ireless technologies of existing cellular service providers. And, because in m ost countries it operates in an unregulated spectrum , anyone can deploy a w ireless access point. Basically, a w ireless access point is nothing less than a broadband netw ork. 28 Flashback <http://w w w.flashback.se> is currently up again, but now only as a new s agency; it has abolished its user pages. A list of new s articles about the shutdow n is available through Flashback’s m irror at <http://fb.provocation.net/ w w w.flashback.se/>. The case is described in detail in Christiane Hardy and Karin Spaink, op. cit. 29 The follow ing description is taken from Alan Levy, M atching new wifi technology with virtual private networks to create affordable universal internet access <http://w w w.deve lopm entgatew ay.org/ict/dg-contribute/item -detail?item _id=272929>

KARIN SPAINK

Wireless connectivity m ight in the near future becom e one of the prim e m eans of offering connectivity to countries lacking a telephone or cable infrastructure. There are great concerns that the big ‘players’ in the connectivity m arket w ill attem pt to block this developm ent, fearing that w ireless connectivity w ill lose them part of the m arket (a part w hich they them selves have not yet deem ed interesting enough to explore). . W ha t is Journa lism a nd W ho Q ua lifies a s a Journa list? O ne last question to ponder is w hat, in this post-Gutenberg era, qualifies as journalism and w ho as a journalist. This question is of special im portance for the O SCE O ffice of the Representative on Freedom of the Media (FO M), since som e of its tasks are to provide early w arning on censorship and other violations of freedom of expression, to respond to obstruction of m edia activities and to act against unfavourable w orking conditions for journalists. It used to be rather straightforw ard: journalism w as w hat the m edia engaged in, and a journalist w as anybody w ho w ould w ork for such a m edium . With the rise of the Net, that definition has becom e too strict. After all, one need no longer be em ployed by a radio or television station, m agazine or new spaper. Any individual w ith Internet access can start a new s m agazine of his ow n – he is suddenly equipped w ith a Gutenberg press and a distribution centre. While people m aking a w ebsite about their private hobby – collecting stam ps, or gossiping about pop idols – are not likely to be put through any political hassle, there is nothing to say that others, w ho engage in m ore political content, w ill not suffer the sam e repression that ‘classic’ journalists experience. And if they do, there is no reason w hatsoever to w ithhold from them the kind of support that their colleagues 28

INTRO DUCTIO N

w orking for traditional m edia hope to get from the O SCE/FO M. In fact, they m ight need it all the m ore, because there are not m any organizations standing up for them . Apart from that, Internet journalists increasingly face a new problem . Several governm ents – Italy, Spain, Turkey; and Finland is proposing to do the sam e – have im posed existing m edia law s upon Internet publications, dem anding that each and every w ebsite ow ner registers him self and inform s a designated authority of any updates or changes, a dem and w hich is clearly im possible to live up to on the Net.30 Until now, law s like this have only been called upon to penalize w ebsites and Internet journalists that do not concur w ith official policies. C onclusions a nd Recom m end a tions. The rise of the Internet creates all new kinds of questions pertaining to freedom of the m edia and the freedom to access m edia. A num ber of questions have been discussed in this article, yet there are still questions that haven’t even been touched upon here. How are texts distributed and accessed now adays? Will ow nership of texts (copyright) rem ain the sam e?31 What is the position and m eaning of Internet journalism , as opposed to broadcasted or

30 For Italy, see Manlio Cam m arata, ‘Q ui succede un “quarantotto’’’, Interlex , 4 April 2001 <http://w w w.interlex.it/stam pa/48.htm > and Snafu, Re: <nettime> Indymedia Italy under Attack <http://am sterdam .nettim e.org/Lists-Archives /nettim e-l-0202/m sg00109.htm l>. For Spain, see Julia Scheeres, ‘Fears of a Website Inquisition’, Wired, 29 May 2001 <http://w w w.w ired.com /new s/ business/0,1367,44110,00.htm l> and Steve Kettm ann, ‘Spanish Web Law Sparks Debate’, Wired, 1 May 2002 <http://w w w.w ired.com /new s/print/0,1294, 52201,00.htm l>. For Turkey, see Kem al Altintas, Tolga Aydin, and Varol Akm an, ‘Censoring the Internet: The Situation in Turkey’, published in First M onday <http://w w w.firstm onday.org/issues/issue7_6/altinta/index.htm l>. For Finland, see Electronic Frontier Finland, Freedom of Expression: The Law on Liabilities in Public Communications <http://w w w.effi.org/sananvapaus/index.en.htm l> 31 For that question, see Jennifer Jenkins’s contribution to the 30 Novem ber 2002 O SCE Vienna Workshop, ‘The Im portance of Public Dom ain for Creativity, Innovation and Culture in the Digital Age’, in this publication, 73-83.

KARIN SPAINK

w ritten journalism ? How are m edia law s applied to the Net? What exactly is censorship in a post-Gutenberg epoch, and w hat do m edia m onopolies look like? In answ ering these questions w e should at least take the follow ing points into account: 1. Censorship on the Net does not m erely copy censorship of the classic or traditional m edia: it is m ore diffuse, less centralized, m ore w idespread, and far less tangible than older form s of censorship, and it is becom ing m ore and m ore com m on in industrialized countries, e.g. regarding content filtering and lim iting or denying bandw idth. 2. The im plem entation of censorship is slow ly being delegated from governm ents to the Internet industry, w hereby the latter is given quite a pow er to w ield over citizensâ&#x20AC;&#x2122; (constitutional) rights. 3. The face of journalism is changing. People w ho are persecuted over their w eb pages need our support just as m uch as people w ho are prosecuted over their w ork in the traditional m edia. After all, one type of journalism m erits as m uch protection as the other. 4. The political risks of Internet m onopolies need to be taken into account, and varied m eans of access need to be prom oted and supported. 5. Finally, w e need to take into account the vulnerability of certain pivotal services on the Net, above all that of search engines, and support them w hen they are under siege.

INTRO DUCTIO N

Verena Metze-Mangold Unive rs al A cce s s to Cybe rs pace : Strategies of the Intergovernmental Council of the Information for All Programme (IFAP/UNESCO)

The Internet has becom e a key instrum ent for the exercise of the right to freedom of expression and freedom of the m edia. This is reason enough to raise the follow ing questions: Who has access to the Internet? What kind of access – universal? conditional? What are the lim itations and exceptions for having access? Who is ruling the developm ents of our virtual environm ent? There is no Cyberspace Convention. What w e have on an international scale are som e international standards for technology exercised by the International Telecom m unication Union (ITU), copyright treaties of the World Intellectual Property O rganization (WIPO ) and an econom ic regim e of the World Trade O rganization (WTO ). What is at stake at the level of the UN system and especially the UNESCO ? The Internet is: - the one digital platform in the tw enty-first century for all traditional m edia, w hich in com m unication theory has been called ‘point to m ultipoint com m unication’ or m ore sim ply ‘one to m any’; - the m edium of personal or group com m unication, so-called ‘point to point com m unication’ or ‘peer-to-peer’ exchange. With this potential it serves a m ultitude of functions: the functions of personal research and inform ation; the function of publishing; the function of com m unication – be it for private VERENA M ETZE-M ANGO LD

purposes or for the exchange of scientific know ledge; the function of political com m unication; and the business functions Business to Business (B2B) and Business to Consum er (B2C). The Right to Freed om of Exp ression. Freedom of the m edia is enshrined in the Universal Declaration of Hum an Rights (1948) in Article 19 and Article 27: the freedom of inform ation and the freedom of culture. This has recently been underpinned by The Universal Declaration of Cultural Diversity w hich w as acclaim ed unanim ously at the General Conference of UNESCO in Novem ber 2001. Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion w ithout interference and to seek, receive and im part inform ation and ideas through any m edia and regardless of frontiers. Article 27 (1) Everyone has the right freely to participate in the cultural life of the com m unity, to enjoy the arts and to share in scientific advancem ent and its benefits. (2) Everyone has the right to the protection of the m oral and m aterial interests resulting from any scientific, literary and artistic production of w hich he is the author. As w ith all human rights these rights underlie freedom from discrim ination: everyone is entitled to all rights and freedom s â&#x20AC;&#x201C; w ithout distinction of any kind. We speak today of the human right to read, the right to w rite information and the right to comm unicate on a global scale. How ever, the reality is different. W ho ha s Access to the Internet? Any aim lies in w alking distance, given that w e have enough energy and enough tim e. But w e lack tim e in our rapidly developing w orld, and the 32

U NIVERSAL ACCESS TO C YBERSPACE

uneven pace of developm ent is a key characteristic of our era. Today it is estim ated that up to 90 per cent of the w orld population does not have access to the Net. The report of the Enquete Com m ission of the Germ an Parliam ent on Globalization of the World Econom y (2002)1 states the sam e as the United Nations Conference on Trade and Developm ent (UNCTAD) report of 2001 2 . While the social and econom ic im portance of access to inform ation is grow ing, the discrepancy betw een the ‘Inform ation Haves’ and the ‘Inform ation Have-Nots’ has enlarged on a global scale. The digital divide of today could possibly be the social divide of tom orrow (w hich w ould create an enorm ous problem for m igration). This is not a question of technical access alone, for exam ple telephone and Internet connections. It is a question of energy supply and of tariffs – the use of the Internet is correlated to the costs of access. 3 Whilst the telecom m unication m arkets in the Third World are m ostly in the hands of state m onopolies, the infrastructure of connectivity and the knots of the Web lie in the hands of the West. Cable and satellite lines are directed to and often via the Western w orld. This adds up to an enorm ous loss of telecom m unication incom e in developing countries. The average cost of access is 75 dollars per m onth in Africa, com pared w ith 10 dollars a m onth in the USA. Naturally the difference is m uch bigger if w e correlate these figures w ith average incom e.

Deutscher Bundestag (ed.), Globalisierung der Weltwirtschaft. Schlussbericht der Enquete-Kommission (O pladen, 2002).

UNCTAD, Trade and Development Report 2002 (New York, Geneva: UNCTAD, 2002).

ILO (2001 b), World Employment Report 2001. Life at Work in the Information Economy (Geneva: ILO , 2001), 17. See also ILO (2001 a), Report of the Working Party on the Social Dimension of Globalisation (Geneva: ILO , 2001).

VERENA M ETZE-M ANGO LD

Seventy per cent of w ebsites are Am erican, 80 per cent of Net content is in English; betw een 5 to 10 per cent of content com es from non-Western countries – although the developing w orld m akes up 80 per cent of the w orld population. Last but not least there is the question of hum an capacity. O f course education standards in the regions of the w orld are – to put it m ildly – different. This applies also to m edia education and the standard of programmes and services used in education that are geared tow ards people’s needs and circumstances. For example, w here do people learn the m eaning of inform ation autonom y? These figures m ay be decisive factors behind the possible pace of access grow th in the w orld. How ever, they are arguably not the m ost im portant reasons for lim itations on access. There a re Further Lim ita tions on Access to the Net: There are constraints in the dynam ics of the interrelated w orld w hich are m ore com plicated to understand. Inform ation and com m unication (I&C) are considered to be necessary factors of dem ocratic societies. In the tw enty-first century, how ever, they are m ore than that. They are key elem ents of the know ledge society and m ake up the future w ealth of a society. I&C are still the source of public opinion. But at the sam e tim e they have undergone a rapid change in function and are regarded m ore and m ore as com m ercial products – goods and services – as w ell as being the subject of attention so as to be taken out in patents or included in proprietary system s. Therefore the aforem entioned report of the Enquete Com m ission does not just speak of the need to define rules and regulations for the new ‘social room ’, cyberspace, by follow ing the old principle of w hat is right in the offline w orld m ust be right in the online w orld. Instead, it states that a change of paradigm is needed. The report votes that inform ation, know ledge, and technology should them selves becom e the subject of law considerations, 34

U NIVERSAL ACCESS TO C YBERSPACE

in order to regulate the developm ent of an inclusive and equitable know ledge society. At least three sectors are included in this debate. In all of these sectors, the task could be defined as a new balance betw een private and public concerns: 1) Access to info rmatio n and the co nstraints built into techno lo gies This applies to hardw are, softw are and the architecture of the Net 4 . Who decides upon these codes and this architecture? Do w e even think about it? 2) Access to info rmatio n and privacy The notion of the banalization of tim e and geography m ight be banal itself. How ever, as the regulating pow er of the national state dim inishes w hilst w arlord and terrorist pow er grow s, w e notice not only constraints on privacy from the state but also a change in public opinion. People seem to be prepared to exchange freedom for security. And not only that. The Net has an ‘open’ architecture and allow s the reconstruction and representation of our behaviour and habits – the reconstruction of our digital shadow as w e call it in Germ any. Having such an infrastructure in our so-called ‘econom y of the attention span’ m eans that the m isuse of freedom is program m ed; and all of us know that it is the m isuse of freedom that alw ays endangers freedom . 3) Access to information and developments in the field of internatio nal co pyright and D igital Rights Management The developm ents endanger, or at least change, the principle of fair use. It can be explained perhaps as a result of 4

Law rence Lessig, ‘Cyberspace’s Architectural Constitution’, lecture given at Am sterdam , the Netherlands, m anuscript dated 12 June 2000; Law rence Lessig, ‘Architecting for Control’, keynote given at the Internet Political Economy Forum, Cam bridge Review of International Affairs, m anuscript, 11 May 2000.

VERENA M ETZE-M ANGO LD

‘Napsterization’ – the file sharing culture in peer-to-peer com m unication – w hich has led to access to inform ation becom ing m ore and m ore constrained by enlarged proprietary system s. Copyright and patent law have been enforced, prolonged, enlarged and applied on new subjects such as designs, com position of sm ells or colours and especially on collections of inform ation in databanks. The am ount of tradem ark patents is one of the criteria of benchm arking an econom ic region and is therefore given a great deal of attention in the process of global com petition. Ninety-seven per cent of all patents are held by industrial countries (TRIPS GATS5 / Universal Declaration of Cultural Diversity 6 ). The know ledge econom y is grow ing strongly and on the international scale is distinctly im balanced. This results in m assive concentration of m edia and inform ation ow nership (w hich even touches on the freedom of scientists) and new form s of inequality of access to know ledge. W ho is Regula ting the Internet? To understand the Internet w e have to see it not just as another transport or com m unication instrum ent. Instead w e have to see it as our ‘electronic environm ent’ in w hich w e probably spend m ore tim e than in the fields and w oods. We should think about principles and criteria w hich could be applied to this virtual environm ent in the process of creating our future w orld – com parable perhaps to the question of biodiversity. If w e do think about it, w e w ould perhaps rather see the need for an ‘Agenda 21’ for our virtual inform ation environm ent than an Article 19 alone. This puts forw ard the question of w ho is regulating? How is it done? By m astering inform ation through know ledge and reflection? If w e reflect w e recall that there are interrelations. There is an interrelation betw een the biodiversity of a 36

U NIVERSAL ACCESS TO C YBERSPACE

society and its cultural diversity. In other w ords: w e know that liberalization of m arkets can release inventions and innovative forces and thus foster developing processes. O n the other hand, w e know that the liberalization of the telecom m unications m arket brought an enorm ous w ave of m ergers and concentration of m arket pow er – the opposite of diversity. ‘Globalization and uniform ity,’ w rote a m edia m agazine, ‘is generated in a m arket, w hich is not concerned w ith questions of sense.’ Econom ists know the notion of ‘m eritorious goods and services’, and they apply this notion to goods w hose social value is m ore im portant than their m arket value. Who or w hat is regulating them ? The answ ers of political scientists are the law, the m arket, codes (e.g. technology) and the norm s of civil society.7 This m ulti-level system of steering m ust be seen in the national and international context. In this m ulti-level system , the state has quite a difficult role, or, to be m ore precise, different roles. The state is guarantor of basic rights, and legislator; thus it structures the legal fram ew ork for developm ent. The state is the supervisor of regulative fram ew orks w ith self-regulative elem ents. It decides on technological infrastructure, insofar as the state is a ‘global player’ itself and in the role of a com petitor on the global m arket. Nevertheless, in the process of globalization and the debate about the norm s of our global system , the nation-state has seem ingly gone through a renaissance and has com e back to a central position. It has to sign international conventions and treaties,

‘Members O utline Plans for Accelerating Service Talks’, WTO Reporter, 30 May 2000.

Beth Sim one Noveck, ‘Inform ation Society’, keynote speech at Inform ation Cultures and Inform ation Interests (ICII): European Perspectives for the Inform ation Society, UNESCO Regional Pre-Conference for the World Sum m it on the Inform ation Society (WSIS), 2003; Claus Leggew ie and Christa Maar (ed.), Internet Politik: Von der Z uschauer zur Beteiligungsdemokratie (Cologne, 1998).

VERENA M ETZE-M ANGO LD

devises international law, and the state together w ith interested parties and civil society is even developing a so-called ‘soft law ’: ‘Resolutions and Declarations’. It is interesting to see how the state is handling its contradictory situation regarding universal access. Before w e com e to that w e have to clarify w hat universal access m eans. The Ba sic Texts a nd Socia l M ea ning. Universal access to cyberspace can be understood as the possible solution to the buzzw ord of the new m illennium : the digital divide. Providing access to inform ation (for all) has been a m ajor concern for m any international organizations in the last 50 years, expressed directly or indirectly in num erous declarations, recom m endations, resolutions, statem ents, and national and international program m es. This is true of the Universal Declaration of Hum an Rights (1948), renew ed in the United Nations Millennium Declaration of 2000; the Convention for the Protection of Hum an Rights and Fundam ental Freedom s of the Council of Europe (1950), renew ed and updated in 1998; for the O kinaw a Charter on the Global Inform ation Society of the G8 countries (2000); and the Action Plan of the G8 DO T Force 2002; the Task Force of ECO SO C; not to m ention the European Union Charter of Fundam ental Rights in 2000, am ong m any others. The term ‘universal access’ has diverse m eanings: Access to inform ation is a freedom The ‘freedom s’ can be classified as follow s 8 : • freedom for individuals to access inform ation held on them • freedom to access general inform ation in the public sector • freedom to access general inform ation in the private sector The contrary notions of general freedom of access consist of: • safeguarding the privacy of inform ation held on individuals from access by others 38

U NIVERSAL ACCESS TO C YBERSPACE

• confidentiality of inform ation held by institutions including com m ercial confidentiality • protection of intellectual property rights • the blocking of access to ‘undesirable’ m aterial on the Net. This covers denial of access to personal data by unauthorized third parties, restricted general access for good reason in the public sector and from the Web, and the need for com m ercial and industrial or political secrecy. Despite significant differences in interpretation of the basic texts due to cultural diversity and heterogeneous political interests, they are considered the program m atic ethical foundations of m odern societies. Am ong the com m only agreed-on values is the free access to inform ation (w hich does not necessarily m ean free of charge, but free of restrictions) – because benefits arise from publicly produced and distributed know ledge. It is considered the m ajor m eans to com pensate otherw ise existing deficiencies, to further equality both on a m icro (individual) and on a m acro level (betw een nations or regions), and to prom ote the establishm ent and developm ent of dem ocratic societal structures. Support m easures for the production of know ledge and for its distribution, for access to know ledge and inform ation w hich are in addition financed by the public, are generally considered society’s investm ent in the future. Therefore, to achieve the central goal of equal chances in dem ocratic societies, public support for the production of know ledge and for the dissem ination of inform ation, by access to inform ation, has for a long tim e never been questioned in principle, even

Les Neal, The British Com puter Society Ethics Com m ittee ‘Freedom of Access to Inform ation’ <http://w w w.bcs.org. uk/ethics/freedom .htm >

VERENA M ETZE-M ANGO LD

in m arket-dom inated societies w here privatization and com m ercialization of know ledge and inform ation have led to the current dom inance of com m ercial inform ation m arkets. There has been no doubt that there is still a need for a second ‘m arket’, w hich should perhaps instead be called a ‘forum ’ for the public and not a com m ercial exchange of know ledge. This idea can be found in our schools, in public libraries, in public broadcasting system s.9 Today this idea is being questioned by the rules and m odes of the GATS Regim e, the General Agreem ent on Trade in Services of the World Trade O rganization (WTO ). The GATS Doha Round (2000-2005) focuses on trades and services in education, culture, and audiovision. W ha t is a t Sta ke in the UN system ? The UN must consider themselves as ‘catalysts of change’, said Kofi Annan w hen he presented the UN Millennium Declaration, and he continued: ‘As catalysts of change w hose effects do not result from the exercise of pow er but from the exercise of values and global norms.’ UNESCO , the UN’s special organization for education, science, culture and com m unication, is m ore than other intergovernm ental institutions open to civil society, to NGO s and special stakeholders – as in our case journalists and the m edia industry. With regard to the inform ation and com m unication program m e of UNESCO , the year of paradigm change w as 1996. Until then, the leading idea had been that the social and econom ic inclusion of developing countries w ould be a result of the m arket – a belief w hich w as expressed in a sim ilar w ay in the form er Washington Consensus. How ever, in 1996 the Executive Council of UNESCO stated that the new technologies of connectivity bear enorm ous potential for developm ent in all fields of UNESCO ’s mandate – education, science, culture, and com m unication. ‘But the only effect until now,’ stated the Executive Council in 1996, ‘has been a w idening gap.’ 40

U NIVERSAL ACCESS TO C YBERSPACE

The D ra ft Recom m end a tion on M ultilingua lism a nd Universa l Access to C ybersp a ce. In 1997 the 29th session of the General Conference debated on a ‘Prelim inary report by the Director General on the feasibility of an international instrum ent for the establishm ent of a legal fram ew ork relating to cyberspace and of a recom m endation on the preservation of a balanced use of languages in cyberspace.’ Alm ost every country w ill experience the need for an international legal environm ent, the report said. This m eans that a tighter fabric of international norm s needs to be w oven, expanding the rule of law w orldw ide and enabling citizens to exert their dem ocratic influence on global processes. The report noted that the field w as m arked by num erous divergences of interest. ‘The rights of users and universal access to inform ation are fundam ental to this process. Essential values such as freedom of expression, respect for the “public good” and protection of privacy should also be strengthened so as to prom ote dem ocracy.’ ‘Where the opening-up of new frontiers has created new legal requirem ents there is no lack of precedents for the fram ing of a ius novum. Recent exam ples are the O uter Space Law and the Law of the Sea.’ ‘Such an international instrum ent in the form of a convention m ight be legally binding. It could also have the form of a declaration, proclaim ing m oral com m itm ents w ith no binding legal effect. In this respect, international law and practice dem onstrate that a resolution or a declaration preceded alm ost every international convention prepared by the United Nations. The progressive developm ent of international law m oreover recognizes the binding legal nature of soft law under particular 9

Rain er Kuh len , ‘UNESCO Activities in Com m un ication an d In form ation – Program m es an d Recom m en dation s, Ch an cen un d Risiken globaler Vern etzun g’, keyn ote speech at th e in tern ation al sem in ar at ‘Am erikah aus Berlin ’, Berlin , 21 an d 22 February 2002.

VERENA M ETZE-M ANGO LD

circum stances, e.g. the Universal Declaration of Hum an Rights, to cite but one instance. In order to avoid adm inistrative and procedural constraints, it m ight be feasible to begin by preparing a draft declaration on a basis of a set of com m only agreed guidelines and principles to be discussed by UNESCO governing bodies and subsequently subm itted to the United Nations General Assem bly. Follow ing approval of the draft declaration by the UNESCO governing bodies, steps could be taken to exam ine the feasibility of preparing a specifically binding international instrum ent w ith its ow n supervisory m echanism in order to strengthen existing international instrum ents.’ The Info-Ethics Exp ert C onferences. In 2001, after a series of expert conferences on Info-Ethics (1998-2000), the General Conference had to decide on a Draft Recom m endation for the Prom otion and Use of Multilingualism and Universal Access to Cyberspace. UN W orld Sum m it on Inform a tion Society. The ‘Recom m endation Concerning the Prom otion and Use of Multilingualism and Universal Access to Cyberspace’ w as originally intended to becom e the conceptual basis for UNESCO participation in the UN World Sum m it on the Inform ation Society, w hich w ill take place in 2003 under the leadership of ITU. ‘Universal access’ in this context is defined ‘as equitable and affordable access by all citizens to inform ation infrastructure and to inform ation and know ledge essential to collective and individual hum an developm ent.’ The pream ble of this recom m endation also claim s, ‘that one of the ultim ate goals of any society is em pow erm ent of all its citizens through access and use of know ledge.’ ‘Universal access to inform ation and com m unication technologies and particularly to global inform ation 42

U NIVERSAL ACCESS TO C YBERSPACE

netw orks is essential for achieving goals of social cohesion and econom ic inclusion.’ Well said. Nevertheless, the recom m endation ultim ately failed to be adopted by the 2001 UNESCO General Conference. According to the report of the Germ an delegation there are several reasons for the failure of the recom m endation: The dem and for ‘a new fair balance betw een the interests of authors and publishers and those of the public concerning free access to inform ation’ w as not accepted by the m ajority of m em bers. And the request that ‘m em ber states and UNESCO should defend the principle of universal access against attem pts to strengthen intellectual property rights through technological m eans such as digital rights m anagem ent’ w as obviously against current w orldw ide trends in legislation as expressed in the WIPO 1996 treaties, the US Digital Millennium Copyright Act, and, in particular, the Directive of the European Com m ission on the Harm onization of Copyright from 5/2001 (Article 6), w here technical m eans are clearly favoured to protect copyrights on intellectual property w hich is controlled by private interests. ‘Inform a tion for All’ C ouncil a nd Progra m m e. The year 2002 saw the publication of the com pleted action plan of the O kinaw a DO T Force – w ithout any further consequences. In addition, that year saw the establishm ent of the first intergovernm ental body dealing w ith ‘Inform ation for All’ (IFA/ IFAP) – a council and a program m e w ith the very sam e nam e. Whereas statem ents of and reports on conferences are an easier w ay to reach consensus, it is m ore difficult to achieve the necessary m ajority for UNESCO official decisions such as those on new program m es or on official recom m endations or even conventions. Therefore it is all the m ore rem arkable that VERENA M ETZE-M ANGO LD

UNESCO has agreed, after a long period of intensive discussion, on the new IFA intergovernm ental program m e w hich, by nature of its title, w as provocative for som e m em bers, in particular for lobbying groups from the inform ation econom y. IFA, by nam e, is a program m e for access to inform ation for all. It is based on the UNESCO constitution. Therefore ‘UNESCO ’s m andate “to prom ote the free flow of ideas by w ord and im age” (Article 1) clearly indicates the part that the O rganization is called upon to play in m aking inform ation and know ledge freely accessible to all, w ith the ultim ate objective of bridging the gap betw een the inform ation rich and the inform ation poor’ (pream ble). IFA them aticizes the challenge of the m odern inform ation society w here ‘new m ethods for accessing, processing and preserving information raise problems of an ethical nature, w hich in turn create m oral responsibilities, to w hich the international com m unity m ust respond. Am ong the issues here are the quality, reliability and diversity of inform ation, the balance betw een free access to inform ation, fair use and protection of intellectual property rights, the privatization of inform ation, the preservation of the w orld’s inform ation heritage and the privacy and security of personal data.’10 The Intergovernm ental Council Inform ation for All (IFA) is w ell aw are that the objectives to ‘prom ote and w iden access (to know ledge) through the organization, digitization and preservation of inform ation’ can only be achieved by new form s of partnership. ‘Collaboration w ith stakeholder NGO s and the private sector shall be established in order to create a m ultiplier effect from im proved com m unication and collaboration to contribute to achieving the objectives of the Programme.’ As concrete means for supporting free access, the IFA recom m ends ‘strengthening institutions as gatew ays for inform ation access’, in particular establishing a ‘UNESCO portal to 44

U NIVERSAL ACCESS TO C YBERSPACE

inform ation institutions w orldw ide’ and also ‘national public gatew ays to inform ation in several countries of all regions’ (from area 3 of the program m e). The IFA recom m ends the follow ing strategies: - Move tow ards a redefinition of the role of inform ation institutions - Extend the role of established professional and institutional infrastructures such as libraries, archives, com m unity centres etc. - Prom ote the creation of new inform ation institutions, particularly local gatew ays to inform ation - Create aw areness of the im portance of the com plem entarities betw een institutions providing access to non-digital and digital inform ation - Prom ote the creation of digital content by inform ation institutions - Prom ote international co-operation through netw orking am ong professional com m unities/associations - Prom ote co-operation betw een public inform ation institutions and the private sector (in particular content providers) - Greater use of technology by inform ation institutions for inform ation preservation. And as concrete action it recom m ends: - Analyse and report on the changing role of inform ation institutions in the inform ation society - Support the im plem entation of technology and professional standards for the m anagem ent and preservation of physical collections of inform ation - Support the creation of public gatew ays to inform ation, particularly in developing countries 10 Rainer Kuhlen, op. cit.

VERENA M ETZE-M ANGO LD

- Support the netw orking of institutions to provide access to inform ation resources - Support the digitization of inform ation, particularly indigenous know ledge useful to local com m unities - Foster co-operation w ith the inform ation industry to develop form ulas for providing equitable access for econom ically disadvantaged users - Support resource-sharing of digital and non-digital resources - Encourage and support the use of ICT to m anage and preserve inform ation resources. Inform a tion C ultures a nd Inform a tion Interests (IC II Resolution). In 2002 the UNESCO European Pre-conference to the World Sum m it on the Inform ation Society in 2003 in Geneva, w hose host w as the German Commission for UNESCO , adopted a resolution 11 w hich underpins the urgency of these issues, being convinced that the sum m it should not fall victim to the m ere technical problem s of the digital divide. At the second preparatory conference, the so-called PrepCom in Geneva in March 2003, the sum m it agenda w ill be decided upon. Moreover, the 32nd UNESCO General Conference w ill also take place this year in O ctober 2003. The revised draft of the Cyberspace Recom m endation and the Executive Boardâ&#x20AC;&#x2122;s com m ents thereon w ill be presented to the General Conference at its 32nd session. The procedure of drafting the new version of the recom m endation w as som ew hat surprising. At least tw o different groups of experts had been invited by the General Director to w ork on the recom m endation and that changed the result. The articles relating to copyright have been turned upside dow n. There w as pressure from the inform ation econom y, especially the copyright industry. Since the draft has passed the Executive 46

U NIVERSAL ACCESS TO C YBERSPACE

Council this O ctober it w ill not change again. Notw ithstanding, during the last General Conference in Novem ber 2001 another declaration had been adopted. The Universa l D ecla ra tion on C ultura l D iversity. While the filing of the Cyberspace Recom m endation w as going on for six years, parallel to this a declaration has been in the process of drafting since the World Culture Conference in Stockholm five years ago. It w as adopted just one year ago. In the action plan, the m em ber states are asked to pursue national policies of cultural and m edia diversity. Moreover the declaration asks m em ber states, after having agreed on this â&#x20AC;&#x2DC;norm ative instrum entâ&#x20AC;&#x2122;, to decide w hether it is necessary to w ork on a legal instrum ent. Meanw hile w e see several lines of activity on a m ultilateral level in Europe. The Assem bly of the European Council recom m ends that the Com m ittee of Ministers: 1) Joins forces w ith other international bodies that are currently considering access to digital m aterial on the Internet in order to develop norm s for the fair use of such m aterial for educational and other socially relevant purposes and 2) En sures th at such n orm s are applied in m em ber states (June 2002). The European Regional Ministers for Culture and Education unanim ously adopted the Brixen Declaration on Cultural Diversity and GATS during the Assem bly of European Regions on 18 O ctober 2002. The declaration reads: â&#x20AC;&#x2DC;We fully concur w ith the recognition as expressed in the Universal Declaration on Cultural Diversity ... that cultural diversity is as necessary for hum ankind as biodiversity is for nature and that policies to prom ote and protect cultural diversity thus are 11 <w w w.unesco.de>

VERENA M ETZE-M ANGO LD

an integral part of sustainable developm ent; that cultural goods and services w hich, as vectors of identity, values and m eaning m ust not be treated as m ere com m odities or consum er goods and that cultural and audiovisual policies, w hich prom ote and respect cultural diversity, are a necessary com plem ent to trade policies.’ (Article 16) ‘We have to acknow ledge w ith regret,’ the m inisters state in Article 6, ‘that the decision to include educational, cultural and m edia services as a constituent and integral part of the General Agreem ent on Trade in Services (GATS) has been taken w ithout in-depth inform ation or full consultation of the w ider public. It has been w ithout real parliam entary deliberations in national parliam ents and, to a large extent, w ithout reference to regional governm ents although constitutionally dem anded w here there are exclusive or m ixed legislative com petences, for culture, education and m edia.’12 The Canadian Minister for Culture proposed a protocol to the GATS treaty referring to the Declaration on Cultural Diversity, thus im porting universal norm s and values to the econom ic regim e of the WTO . Social scientists agreed on a w orking platform to set up a ‘Charter for Cyberspace’. 13 The catalyst function seem s to w ork. But the developm ent of the w idening gap has – to this day – not been halted. The World Sum m it on the Inform ation Society is ante portas: 2003 in Geneva and 2005 in Tunis.

12 <secretariat@a-e-r.org> 13 Initiative ‘Charter on Sustainable Know ledge Societies’ <http:\\w w w.w orldsum m it2003.org>

U NIVERSAL ACCESS TO C YBERSPACE

Páll Thórhallsson Fre e do m o f the M e dia and the Inte rne t

The new inform ation and com m unication technologies offer unprecedented possibilities for individual and group expression and for an increased participation of individuals in public affairs. The Council of Europe is convinced that an active policy co-ordinated at the international level is needed to m axim ize the benefits of the new inform ation and com m unication technologies and ensure that freedom of expression and inform ation as w ell as other hum an rights and fundam ental values are fully respected. In this paper, I w ill try and highlight som e issues in this field w here the Council of Europe thinks that there m ay be a need for internationally co-ordinated w ork. The Council of Europe is in favour of developing a vision of the inform ation society w hich gives priority to hum an rights, in particular freedom of expression and inform ation, and the opportunities of em pow ering citizens to take a m ore active part in dem ocratic society. At the sam e tim e, other hum an rights and fundam ental values such as hum an dignity and privacy m ust be fully guaranteed. Public policy objectives, such as the efficiency of governm ent services and netw ork security, should be seen as serving this higher goal.1 Means should be sought to guarantee the fullest respect for freedom of expression and inform ation in the future inform ation society. Individual participation and the use of new 1

See Council of Europe contribution to the World Sum m it on the Inform ation Society <http://w w w.hum anrights.coe.int>

PÁLL T HÓ RHALLSSO N

inform ation and com m unication technologies should be encouraged through public policy and protected by legal m eans w ith independent courts being the ultim ate guarantor of individual rights. Public authorities should develop innovative strategies to increase transparency and m ake public inform ation available w ith the help of the new technologies in a neutral, com prehensive and easily accessible m anner, allow ing enhanced public control over and active participation in public affairs. The Council of Europe has launched a w ork on defining com m on standards for e-governance w hich w ill focus on giving citizens increased possibilities of interaction w ith public authorities and allow ing m ore active participation betw een elections. A recent Council of Europe Recom m endation on access to official docum ents pursues also the sam e aim of ensuring m ore transparency of governm ent.2 Freedom of expression and inform ation has to co-exist w ith other fundam ental rights and values. Legal fram ew orks, necessary as they are, m ust be designed in such a m anner that any restrictions on this freedom serve legitim ate purposes and do not go beyond w hat is necessary in a dem ocratic society. In particular, they should not go further than w hat has been generally accepted at the international level regarding traditional offline com m unications. O n the European continent, this refers first and forem ost to Article 10 of the European Convention on Hum an Rights and the relevant case law of the European Court of Hum an Rights. Enhanced international co-operation is necessary, inter alia, to define com m on standards on content m atters and on liability of both prim ary actors and interm ediaries, and to find responses to questions of jurisdiction and applicable law. Illegal content should be marginalized and any safe havens for illegal activity closed through international pressure. The recently 50

FREEDO M

O F THE

M EDIA

AND THE INTERNET

adopted Council of Europe Cybercrim e Convention 3 responds to this need. The parties to the Convention and its additional protocol agree that certain content should be considered crim inal, nam ely breaking into com puter system s, child pornography, racist speech, and piracy of content protected by copyright. The Convention, furtherm ore, provides for international co-operation in com bating crim inal activity in cyberspace. International co-operation should also involve the industry, w hich should be encouraged to develop codes of conduct and self-regulatory schem es. This co-operation is also essential to guarantee the protection of m inors against content w hich is not strictly illegal, but m ay be harm ful and detrim ental to their personal developm ent, in an environm ent w here traditional w ays of controlling access (for exam ple w atershed rules) do not w ork.4 Com ing back to the m ain topic of this paper, it is obvious that the new inform ation and com m unication technologies are not an end in them selves, but a m eans of supplying, accessing and preserving inform ation and content. The danger exists that genuine inform ation w ill be m ore and m ore difficult to find in the plethora of com m unications. It m ay also becom e increasingly difficult to distinguish betw een credible and valuable inform ation and pseudo-know ledge or other com m unications w hich serve propaganda or advertising purposes. The Council of Europe has started w orking on defining the role of the m edia in prom oting dem ocracy in the inform ation age. In a draft position paper, m ade public in Decem ber 2

Recom m endation (2002) 2 on access to official docum ents <http://w w w.hum anrights.coe.int/m edia>

See <http://conventions.coe.int/>

See Council of Europe Recom m endation (2002) 8 on self-regulation concerning cyber content <http://w w w.hum anrights.coe.int/m edia>. The site also contains inform ation about self-regulatory initiatives in several European countries.

PĂ LL T HĂ&#x201C; RHALLSSO N

2002 5 , it is stated that one of the roles of the m edia has traditionally been to provide the general public w ith inform ation about the activities of public authorities. Increasingly, how ever, such inform ation is m ade directly available to the general public on official w ebsites. This is at first sight a positive developm ent serving the right of the public to access inform ation. The question arises, how ever, of w hat role rem ains for the m edia? O nce, they used to be a unique link betw een public authorities and the citizen, w hile now they m ay becom e m arginalized. It seem s obvious that the m edia should continue to extract inform ation from the public sector, since there is no guarantee that the inform ation provided by public authorities on their ow n initiative is objective and exhaustive. Furtherm ore, it m ay be argued that the am ount of available inform ation m akes ‘filtering’ and interpretation even m ore necessary than before. No one seem s to be better placed than independent m edia to correct m isleading official inform ation. The m edia should therefore, it m ay be argued, act as an independent observer of public authorities and their inform ation policy, highlighting w hat is really new sw orthy and criticizing w hat could be done better. It is com m onplace to say that the m edia reflect public opinion. New technical possibilities allow the m edia to collect the view s of the public in a m uch m ore direct w ay than before. Conducting an online vote w ith the help of the Internet is technically fairly easy and m any online m edia invite the public to voice their opinion on certain topics, for exam ple by sim ply clicking a ‘yes’ or ‘no’ button in answ er to particular questions. The question arises, how ever, w hether the m edia should develop guidelines on how to conduct and present the results of such online votes. For the sake of fairness and transparency, 52

FREEDO M

O F THE

M EDIA

AND THE INTERNET

the m edia m ight, for exam ple, provide inform ation on the com position of the sam ple w hich w ould allow the audience to judge to w hat extent it is representative.6 Furtherm ore, it m ight be interesting to know if the m edia present the results of such votes to decision-m akers, requesting a reaction. There is nothing new about the fact that the m edia offer the public the possibility of engaging in a discussion about public affairs. This has been done in the past in the form of letters to the editor, talkshow s on radio and television, etc. New technologies open up new possibilities in this respect. Many online m edia invite readers to com m ent on stories or to provide input in chat-sessions or discussion fora on topical issues. Several questions can be raised in this respect. Firstly, w hether the m edia should issue any guidelines to participants in online debates regarding respect for the law and ethical principles. Secondly, w hether the debates should be m oderated and, in the affirm ative, w hether they should be prem oderated or postm oderated.7 Prem oderation m ay, in particular, be necessary w hen sensitive topics are being discussed 8 or w here children are encouraged to take part. Thirdly, w hether participants should be allow ed to hide their identity. 5

See <http://w w w.hum anrights.coe.int/m edia>: ‘O utline position paper on the role of the m edia in prom oting dem ocracy and participation in the inform ation society.’

The BBC O nline Editorial Guidelines <http://w w w.bbc.co.uk/info/online/> state that care has to be taken that online expressions of opinion are not translated into anything that could be construed as an accurate representation of public opinion as a w hole.

‘Prem oderation is w here m aterial cannot be accessed by visitors to the site until the m oderator has seen it and decided it is suitable for placing on the Internet. Postm oderation is w here the m oderator sees the m aterial, and decides w hether it is suitable to rem ain on the site, after it has been posted.’ (quoted from the BBC O nline Editorial Guidelines).

The French new spaper Le M onde announces, for exam ple, on its w ebsite that the online debate on the Middle East is prem oderated, see <http://forum s.lem onde.fr/>

PÁLL T HÓ RHALLSSO N

In addition to these questions, w hich the m edia w ill first and forem ost decide for them selves, there is the issue of legal responsibility for the content of online debates.9 O ver and above these issues, w hich are im m ediately linked to the organization of online debates, there is the question of w hat is done w ith the results. Is there an attem pt by the m edia to draw conclusions from such debates and present them to decision-m akers? This m ight add a new sense and increased im portance to participation in the debate. The m edia m ay also have an im portant role to play in prom oting dem ocratic practices. This can be done, for exam ple, by encouraging participation in elections and referenda and devoting special attention to such dem ocratic processes. This could also involve providing inform ation to voters about the dem ocratic system that they belong to. In the context of the inform ation society, this w ould m ean that the m edia follow closely new developm ents aim ed at increasing dem ocratic participation in decision-m aking about public affairs. Where no such developm ents are taking place, the m edia could inquire w hy this is the case. The m edia m ay also pay special attention to the phenom enon of dim inished interest in public affairs and suggest w ays for public authorities and politicians to involve the general public to a greater extent than before. More public interest and involvem ent w ill also ultim ately be beneficial to the m edia them selves, at least as regards the sustainability of serious reporting about politics, the econom y, etc. Arguably, the m edia should pay special attention to the view s, concerns and situation of m arginalized or excluded parts of society. Such a m oral obligation is to be found in m any ethical codes and is respected in practice by a large num ber of m edia professionals. This m ay be particularly urgent in the context of the inform ation society, w here new form s of social 54

FREEDO M

O F THE

M EDIA

AND THE INTERNET

exclusion m ay arise. People w ithout access to the Internet or lacking skills in using the Internet m ay effectively be w orse off than before from a dem ocratic point of view. The bottom line is that independent, professional journalism , adhering to ethical standards, w ill not be less im portant in the inform ation society than before. The provision of relevan t, tim ely an d w ell-research ed in form ation by m edia professionals w ill continue to be essential in laying the foundation s of an in form ed public debate about curren t affairs and public policy. The necessary conditions for journalists to be able to pursue their scrutiny of the state and other pow erful forces in society, providin g an in dispen sable coun terbalan ce, m ust be m ain tain ed. Th is in cludes n ot on ly legal protection against harassm ent of a physical or other nature, but also th at m edia organ ization s create th e con dition s for journalists to carry out their w ork properly, despite increased pressure from th e m arket w ith respect to in stan t an d low cost provision of inform ation. Genuine independent public service broadcasting should be recognized as an essential com ponent of the inform ation society, guaranteeing quality inform ation. There is a need for trusted sources of inform ation as a point of reference in a w orld w here the flow of unm ediated raw data increases steadily. The m ultitude of inform ation sources w ith any particular m ass m edia reaching a lesser part of the population than before, carries furtherm ore the risk of dim inishing social cohesion. Here again, public service broadcasting can play a vital role in creating com m on fram ew orks of reference. 10 9

In Finland, a draft law w hich w ould clarify questions of liability for content of online bulletin boards is being discussed in Parliam ent, see <http://w w w. helsinki-hs.net/new s.asp?id=20021216IE5>

10 See Council of Europe Recom m endation (1996) 10 on the guarantee of the independence of public service broadcasting <http://w w w.hum anrights.coe. int/m edia>

PĂ LL T HĂ&#x201C; RHALLSSO N

Since the m eans of transm ission m ay be of less relevance than before, consideration should also be given to extending the concept of public service broadcasting to the new com m unication and inform ation technologies, w ith a view to developing a new policy of public service com m unication.

FREEDO M

O F THE

M EDIA

AND THE INTERNET

Sandy Starr The D im inishing Im po rtance o f Co nstitutio nal Rights in the Inte rne t A ge

In this paper, I address tw o factors w hich I believe have fundam entally eroded the constitutional rights of Internet users in recent years: the fram ew ork of self-regulation, and the fram ew ork of hum an rights. To illustrate the im pact that these tw o factors have had, I conclude w ith a case study of copyright regulation in Europe. I. The Fra m ew ork of Self-Regula tion. By self-regulation, I mean any situation w here regulation of speech is carried out by a private com m ercial body, rather than a public statutory body. At first, this definition seem s hopelessly broad â&#x20AC;&#x201C; donâ&#x20AC;&#x2122;t all com m ercial publishers, online and offline, practice benevolent self-regulation sim ply by deciding not to publish certain things? But self-regulation becom es opposed to constitutional rights, as soon as it is used in the service of state regulatory interests. Constitutional rights can only be defended against the pow ers of the state, if the state exercises those pow ers accountably and in the open. By m aking everyone w ith a com puter and a connection into a potential publisher, by transcending national boundaries, and by m aking it difficult to identify the publisher of specific content, the Internet posed an enorm ous challenge to state regulation w hen it becam e w idely used in the 1990s. Self-regulatory regimes, w here Internet regulation devolves from accountable arms of the state to unaccountable para-state, SANDY STARR

international and industry bodies, are best understood as a defence mechanism in reaction to new technology. With self-regulation, regulation mimics the decentralization that frustrates it.1 O rganizations such as the Internet Hotline Against Child Pornography in the Netherlands; the Internet Watch Foundation in the UK; the CyberTipline in the USA; and the Australian Broadcasting Authority in Australia differ in their m ethods and their stated intentions, but they all recommend removal of content either to Internet service providers (ISPs) or directly to content providers, bypassing due process in a court of law.2 Perhaps the type of Internet content m ost subject to selfregulation is child pornography, for the sim ple reason that w hatever country people live in, they tend to find it so appalling that there is little or no objection to w hatever m ethod is used to regulate it. But just because self-regulation is politically and m orally expedient, this does not m ake it constitutionally legitim ate. Unfortunately, the im pact and consequences of self-regulation are difficult to m easure, because self-regulation takes place out of public view. When the regulatory apparatus is exported into the marketplace, it becomes impossible to determine accurately w hat content is being rem oved from the Internet, and w hy.3 Therefore, rather than attem pting to gauge the statistical im pact of Internet self-regulation, I thought it m ore useful, for the purposes of this paper, to assess the m ost com m on justifications for Internet self-regulation. There follow five such justifications, each of w hich I believe is in fact a fallacy. Fallacy 1: Self-regulatio n is co nstitutio nally legitimate The argum ent goes that if an independent com m ercial body voluntarily elects to regulate content that it is responsible for publishing, then that body is not transgressing any constitutional rights. There are tw o faults in this argum ent. 58

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

First, com m ercial bodies are not necessarily politically independent. The distinction betw een an industry consortium pursuing its ow n interests on the one hand, and a quango pursuing the interests of governm ent at a distance on the other hand, is by no m eans alw ays clear. Statutory bodies can put pressure on an industry to enforce a particular self-regulatory regim e. The Internet Watch Foundation, for instance, w as officially established and is funded by industry, but is endorsed by the UK police and by the UK Governm ent’s Departm ent of Trade and Industry. Second, it is not at all evident w ho should be considered responsible for publishing content on the Internet. Legislation has tended to characterize ISPs as publishers, but this is m ore a m atter of regulatory convenience than of constitutional principle. The category ‘publisher’ is in m any w ays com pletely inappropriate for ISPs, w hose relationship to content and to content providers differs significantly from the relationship of a print publisher to content and to content providers. 1

This is true not only of self-regulation in relation to the Internet, but of selfregulation as a response to new publishing technology throughout history. See Christopher Hunter, ‘A Brief History of Censorship’, Filters and Freedoms 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Inform ation Centre (Washington: Electronic Privacy Inform ation Centre, 2001).

See the Internet Hotline Against Child Pornography <http://w w w.meldpunt.org>, Internet Watch Foundation <http://w w w.iw f.org.uk>, CyberTipline <http://w w w.m issingkids.com /cybertip>, and Australian Broadcasting Authority <http://w w w.aba.gov.au> w ebsites.

Although there have been laudable attem pts to gauge the im pact of Internet selfregulation. For example, Chris Ellison’s paper ‘O ppression Net’ (in Economic Affairs, vol. 20 no. 1, March 2000) reports that in the UK in 1998, 400 tim es m ore content w as removed from the Internet on the instruction of the Internet Watch Foundation than w as removed from the Internet on the instruction of a court of law. There are also ongoing projects to catalogue specific exam ples of content rem oval through self-regulation, for exam ple on the w ebsites of the Electronic Frontier Foundation <http://w w w.eff.org> and the Chilling Effects Clearinghouse <http://w w w. chillingeffects.org>. And the Electronic Privacy Inform ation Centre docum ents num erous instances of w rongly filtered content, in its book Filters and Freedoms 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Inform ation Centre (Washington: Electronic Privacy Inform ation Centre, 2001).

SANDY STARR

Fallacy 2: Self-regulatio n restricts liberty less than state regulatio n The argum ent goes that self-regulation w hich is opted for by individual users, such as filtering, is preferable to crim inal penalties directly restricting certain kinds of speech. This argum ent w as m ost fam ously endorsed by the Am erican Civil Liberties Union, in its 1997 pam phlet ‘Fahrenheit 451.2: Is Cyberspace Burning?’, w hich argued that ‘userbased blocking program s...are far preferable to any statute that im poses crim inal penalties on online speech’.4 But there is a central flaw in this argum ent, as is pointed out by the US legal theorist Law rence Lessig. Lessig argues that only w hen regulatory requirem ents are ‘im posed by the state’ can ‘these requirem ents...be tested against the Constitution’. He goes on to explain the dangers of ‘non-transparent’ regulation: ‘If there is speech the governm ent has interest in controlling, then let that control be obvious to the users. O nly w hen regulation is transparent is a political response possible.’5 Fallacy 3: Internet users are adequately represented under self-regulatio n The argum ent goes that because an ISP has to abide by the term s and conditions in the contract it signs w ith its custom ers, and because there are num erous organizations and cam paigns that represent consum er rights, therefore Internet users have adequate representation under self-regulation. There are three faults in this argum ent. First, consum er rights are not constitutional rights. Consum er rights m erely entitle you to expect good business practice. Constitutional rights, on the other hand, em body universal principles such as free expression. Second, rem oval of content from the Internet im pacts not only upon the provider of that content, but also upon the 60

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

broader culture – upon every other Internet user w ho m ight otherw ise have read that content, and w ho probably has no idea it has been rem oved. Self-regulation has a chilling effect not just upon Internet users in their specific role as content providers and ISP custom ers, but upon the free speech of Internet users as a w hole. Third, consum er rights activists are by definition selfappointed and unaccountable, presuming to represent the view s of a public that never elected them , and often playing to the m edia. Far from being adequate representatives of users, they tend to be presumptuous opportunists w ith personal agendas. Fallacy 4: Self-regulatio n is mo rally justified The argum ent goes that certain types of content – forem ost am ong them child pornography and hate speech – are so m orally repugnant as to justify any form of regulation. The problem w ith this argum ent is that it underm ines due process, by assum ing that it is incum bent upon all of us to police allegedly illegal content. In truth, only a court of law is qualified to decide the illegality or otherw ise of content. The m oral argum ent is frequently posed in such a w ay as to erase the distinction betw een speech and action. It is assum ed that speech is directly harm ful to its consum ers, that speech im pels its consum ers to perform certain actions, or that speech is equivalent to the abuses it describes and depicts. Such confusion is, unfortunately, reflected in contem porary law and policy – it is em bodied by the very category of ‘hate speech’, and em bodied by law s such as the UK’s Crim inal Justice and Public O rder Act 1994 and the USA’s Child 4

Am erican Civil Liberties Union, ‘Fahrenheit 451.2: Is Cyberspace Burning?’, reproduced in Filters and Freedoms 2.0: Free Speech Perspectives on Internet Content Controls, Electronic Privacy Inform ation Centre (Washington: Electronic Privacy Inform ation Centre, 2001), 109. 5 Law rence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books), 178-81.

SANDY STARR

Pornography Prevention Act 1996, both of w hich equate the creation of artificial im ages of child abuse w ith the photographing of genuine acts of child abuse.6 Nonetheless, the distinction betw een speech and action rem ains crucial to the defence of constitutional rights. Fallacy 5: The legitimacy o f self-regulatio n can be measured by the respo nse to it The argum ent goes that if a self-regulatory regim e m eets w ith few com plaints, then the system m ust be ‘w orking’, and is therefore legitim ate. This argum ent w ould have us believe that a system w hich assum es guilt on the part of content providers, and is ruthlessly efficient at rem oving content on that basis, w ithout any qualified evaluation of claim s, m ust be legitim ate if the content providers never protest their innocence. But the fact rem ains that under self-regulation, the presum ption of innocence has been reversed. Content providers are forced to operate under perm anent threat of content rem oval, and it is incum bent upon content providers to protest their innocence w hen content is rem oved. Whether content providers actually go to the effort of lodging a com plaint, or w hether they are sim ply discouraged from expressing them selves freely thereafter, there is a chilling effect w hose full extent cannot be m easured. Self-regulation is illegitim ate regardless of the response it elicits. II. The Fra m ew ork of Hum a n Rights. There’s a m oral orthodoxy that surrounds the concept of ‘hum an rights’ today. European law is predicated on hum an rights, and hum an rights are invoked by everyone from governm ent representatives to their m ost outspoken critics. It is usually assum ed that hum an rights are eternal, m orally unim peachable, and transcend political interests. To criticize hum an rights is unthinkable. 62

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

But in truth, hum an rights are not eternal or m orally unim peachable. Nor are hum an rights necessarily coterm inous w ith constitutional rights, or coterm inous w ith any Enlightenm ent m odel of universal rights. The doctrine of ‘hum an rights’, as it is understood and applied today, w as first conceived by Franklin Roosevelt’s adm inistration in the im m ensely politicized circum stances of the Second World War – before going on to be cham pioned by US representatives at the 1945 United Nations founding conference, and enshrined in the Universal Declaration of Hum an Rights adopted by the United Nations in 1948.7 Since the Second World War, hum an rights have been put to a m ultitude of political purposes – ranging from justifying interventionist foreign policy (on the grounds that Western nations have a duty to secure the rights of those in other nations), to consolidating dom estic support for political parties (‘hum an rights’ is a concept flexible enough to be used to dress up a diverse range of policies as liberal and just).8

The UK’s Crim inal Justice and Public O rder Act 1994 <http://w w w.hm so.gov. uk/acts/acts1994/Ukpga_19940033_en_1.htm > incorporates revisions to a previous piece of legislation outlaw ing child pornography, the Protection of Children Act 1978, so that every reference to an ‘indecent photograph’ in the earlier Act is changed to refer to an ‘indecent photograph [or pseudophotograph]’. The USA’s Child Pornography Prevention Act 1996 <http://w w w.politechbot.com /docs/cppa.text.htm l> also incorporates revisions to a previous piece of legislation outlaw ing child pornography, 18 USC 2256(8), so that a depiction of a m inor can now be classified as child pornography (and therefore as illegal) w here ‘such visual depiction has been created, adapted or m odified to appear that an “identifiable m inor” is engaging in sexually explicit conduct’. (‘Identifiable m inor’ here m eans identifiable as being a m inor, not identifiable as a particular m inor.)

For an excellent critical history of hum an rights, see Kirsten Sellars, The Rise and Rise of Human Rights (Stroud: Sutton Publishing, 2002).

The political (m is)use of hum an rights is com prehensively docum ented in Kirsten Sellars, The Rise and Rise of Human Rights (Stroud: Sutton Publishing, 2002); and also in David Chandler, From Kosovo to Kabul: Human Rights and International Intervention (London: Pluto Press, 2002).

SANDY STARR

Most problem atic, w hen it com es to the Internet, is the fact that the hum an rights fram ew ork prescribes rights directly, rather than prescribing lim its to state pow er so that rights m ight be exercised. A prescribed lim it to state pow er can be im plem ented unam biguously, as it describes a default condition w here the state sim ply does nothing. But a prescribed individual freedom can only be im plem ented am biguously, because it describes a default condition in w hich the state does som ething, and is restless. Rights are m inutely codified in hum an rights legislation – not so m uch in the Universal Declaration, and in the European Convention for the Protection of Hum an Rights and Fundam ental Freedom s, as in subsequent legislation aim ed at clarifying the am biguities that these initial statem ents of principle throw up. Hum an rights legislation tends to require perpetual clarification, m eaning that it can accom m odate com prom ises that w ould not be possible if rights w ere treated m ore absolutely. Such accom m odation is epitom ized by Article 15 of the European Convention for the Protection of Hum an Rights and Fundam ental Freedom s, w hich states that ‘in tim e of w ar or other public em ergency threatening the life of the nation’, a governm ent is perm itted to ‘take m easures derogating from its obligations under this Convention’. After the terrorist attacks of 11 Septem ber 2001, Article 15 becam e the pretext for em ergency governm ent pow ers in the UK, w hereby suspected terrorists could be detained w ithout trial. Civil liberties cam paigners have challenged these em ergency governm ent pow ers in the UK, but since it’s difficult to arrive at a clear definition of a ‘threat to the life of a nation’, the debate hinges on sem antics. By attem pting to use hum an rights as the basis for their challenge, these cam paigners have 64

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

shot them selves in the foot 9 – it is the m inute codification of rights in the hum an rights fram ew ork that allow s governm ents to rew rite their ow n pow ers in the first place. Hum an rights constantly negotiate freedom s, rather than protecting them . Alongside the fram ew ork of self-regulation, the fram ew ork of hum an rights has had a seriously adverse effect on constitutional rights in relation to the Internet. For exam ple, the fram ew ork of hum an rights enabled the UK’s Regulation of Investigatory Pow ers (RIP) Act 2000, w hich grants security services pow ers to m onitor Internet traffic and grants the authorities the pow er to dem and the keys to encrypted com m unications, to be passed.10 In itially, Article 8 of th e European Con ven tion for th e Protection of Hum an Righ ts an d Fun dam en tal Freedom s, w h ich uph olds th e righ t to privacy, appeared to pose an obstacle to th e RIP Act. But in practice, th e deadlin e for incorporating the European Convention for the Protection of Hum an Righ ts an d Fun dam en tal Freedom s in to UK legislation actually becam e th e pretext for rush in g th e RIP Act through parliam ent.

For exam ple, the UK hum an rights and civil liberties organization Liberty <http://w w w.liberty-hum an-rights.org.uk> invoked Article 5 of the European Convention for the Protection of Hum an Rights and Fundam ental Freedom s, w hich prohibits arbitrary detention and im prisonm ent, in its cam paign against the em ergency governm ent pow ers.

10 The Regulation of Investigatory Pow ers Act 2000 <http://w w w.hm so.gov.uk/ acts/acts2000/20000023.htm > allow s ‘the im position...on persons w ho...are providing...public telecom m unications services...of such obligations as it appears...reasonable to im pose for the purpose of securing that it is and rem ains practicable for requirem ents to provide assistance in relation to interception w arrants to be im posed and com plied w ith’ (Part I, Chapter I, Section 12) (in practice, this m eans requiring ISPs to install ‘black boxes’ that record Internet traffic data); and grants the authorities, w henever data has been seized and ‘a key to...protected inform ation is in the possession of any person’, the pow er to ‘im pose a disclosure requirem ent in respect of the protected inform ation’ (Part III, Section 49).

SANDY STARR

Because new communications technology had made the limits of the UK Government’s surveillance pow ers ambiguous,11 and because com pliance w ith the European Convention for the Protection of Hum an Rights and Fundam ental Freedom s required these surveillance pow ers to be m ore clearly defined, the RIP Act w as justified as necessary for clarification. Rather than curtailing surveillance pow ers, the hum an rights fram ew ork strengthened the UK Governm ent’s hand. And w hen it transpired that the RIP Act appeared to contradict an item of European data protection law (the 1997 Telecom s Data Protection Directive), the UK authorities sim ply reconciled the tw o pieces of legislation, in a docum ent entitled ‘Law ful Business Practice Legislation’. This kind of triangulation betw een contradictory law s is m ade easy by a hum an rights fram ew ork, w hereas it w ould be far m ore difficult under a fram ew ork based m ore on constitutional rights. Now, if you w ant to snoop on others in the UK w ithout falling foul of the law, all you have to do is visit the helpful O ffice of Surveillance Com m issioners w ebsite set up by the UK Govern m en t, w h ose h om epage (at th e tim e of w ritin g) states: ‘this w ebsite is prim arily designed to be used by those w h o auth orise an d con duct covert surveillan ce operation s and covert hum an intelligence... It show s you how to carry out th ese activities in com plian ce w ith th e pow ers gran ted by parliam ent.’12 Privacy cam paign ers attem pted to in voke h um an righ ts in opposition to th e in troduction of th e RIP Act. 13 But on ce again , in doin g th is th ey w ere sh ootin g th em selves in th e foot. Th e h um an righ ts fram ew ork gives th e state latitude to set th e term s on w h ich freedom s are n egotiated, rath er th an givin g citizen s th e m ean s to in sist th at th eir freedom s are protected. 66

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

III. C a se Stud y: Europ ea n C op yright Regula tion. In recent years, debate has raged internationally about digital piracy of copyrighted w orks, and w hat should be done about it. In Europe, there has been heated discussion about the European Copyright Directive of 2001. 14 But in term s of its negative im pact upon constitutional rights, the copyright regulation enforced by the earlier Ecom m erce Directive of 2000 is even m ore significant.15 The Ecom m erce Directive enforces a self-regulatory regim e for copyright regulation, by stipulating that ISPs are liable for copyright-infringing content that they host, unless they rem ove it ‘expeditiously’ upon notification of infringem ent. 16 Due process is entirely bypassed under this regim e. 11 The previous piece of UK legislation w hich dealt w ith surveillance – the Interception of Com m unications Act 1985 – could not be clearly applied to Internet com m unications. Ironically, just like the RIP Act that follow ed it, the Interception of Com m unications Act 1985 w as originally introduced to clarify a hum an rights am biguity – after the European Com m ission on Hum an Rights declared phone tapping a breach of Article 8 of the European Convention for the Protection of Hum an Rights and Fundam ental Freedom s, in the case of ‘Malone v UK’ <http://hudoc.echr.coe.int/Hudoc1doc/HEJUD/sift/118.txt>. 12 Hom epage of the O ffice of Surveillance Com m issioners <http://w w w.surveillancecom m issioners.gov.uk> w ebsite. 13 The RIP Act w as campaigned against by organizations including Privacy International <http://w w w.privacyinternational.org>, Statew atch <http://w w w.statew atch.org>, Cyber Rights and Cyber Liberties <http://w w w.cyber-rights.org>, and the Foundation for Inform ation Policy Research (FIPR) <http://w w w.fipr.org>. To be fair, it should be noted that the FIPR w as instrum ental in several m odifications to the Act that reduced its adverse im pact on privacy – see the ‘Achievem ents’ section of the FIPR w ebsite <http://w w w.fipr.org/achievem ents.htm l>. 14 Directive 2001/29/EC of the European Parliam ent and of the Council of 22 May 2001 on the Harm onization of Certain Aspects of Copyright and Related Rights in the Inform ation Society. 15 Directive 2000/31/EC of the European Parliam ent and of the Council of 8 June 2000 on Certain Legal Aspects of Inform ation Society Services, in Particular Electronic Com m erce, in the Internal Market (‘Directive on Electronic Com m erce’). 16 Directive 2000/31/EC of the European Parliam ent and of the Council of 8 June 2000 on Certain Legal Aspects of Inform ation Society Services, in Particular Electronic Com m erce, in the Internal Market (‘Directive on Electronic Com m erce’), Article 14.

SANDY STARR

This is a good exam ple of self-regulation as a defence m echanism , as w as m entioned earlier – copyright regulation is m im icking the decentralized content distribution that frustrates it. This kind of enforced self-regulation also reflects the European Com m ission’s lack of law m aking legitim acy – by far the m ost effective w ay for it to create a new international regim e, quickly and efficiently, is by intervening at the level of the m arketplace. Th e Ecom m erce D irective is a rem arkably irrespon sible piece of legislation , in th at it is deliberately am biguous an d in com plete. Not on ly does it en force regulation by th e m arketplace; it also gives th e respon sibility for com in g up w it h t h e sp ecifics o f t h e regu lat o ry syst em it en fo rces t o th e m arketplace. The European Com m ission w as unw illing to risk confrontation by grappling w ith the obvious conflicts of interest that surround copyright. Therefore, the Ecom m erce Directive states that governm ents m ust ‘encourage...the draw ing up of codes of conduct...by trade, professional and consum er associations or organizations’ for copyright regulation.17 Many industry figures still live in hope that the European Com m ission w ill, at the very least, clarify the system it has gone halfw ay tow ards creating. They’ll be w aiting for a long tim e. In Novem ber 2002, Margot Froehlinger, head of unit at the Internal Market Directorate General, European Com m ission – w ho w as partially responsible for drafting the Ecom m erce Directive – told an audience of rightsholders, law yers and user representatives in Brussels that on no account w ould the European Com m ission do anything to clarify the Directive in the foreseeable future. Such w ilful and unrepentant am biguity, on the part of the European authorities, is breathtaking. As w ell as being a 68

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

scandalous abdication of responsibility, this attitude can also be understood as a further self-regulatory defence m echanism . Froehlinger w as speaking to a conference organized by the European Com m ission funded research project RightsWatch.18 RightsWatch is run by a consortium consisting of several organizations w ith a com m ercial stake in the w ay that copyright is regulated (plus one university),19 and w as established in an attem pt to tidy up the confusing regulatory m ess created by the Ecom m erce Directive. In March 2002, RightsWatch approached m e to act as a representative of Internet users in one of its w orking groups. This m eant that I had a dilem m a. Should I turn RightsWatch dow n – because I’m in no w ay qualified to represent Internet users, because no Internet user ever elected m e to represent their view s on the regulation that affects them , and therefore representing Internet users is a com pletely illegitim ate position? O r should I accept the position – in the hope that I can do som ething to m ake the regulatory system m ore just, and in order that I m ight w rite papers such as this one, about how these regulatory decisions are m ade?

17 Directive 2000/31/EC of the European Parliam ent and of the Council of 8 June 2000 on Certain Legal Aspects of Inform ation Society Services, in Particular Electronic Com m erce, in the Internal Market (‘Directive on Electronic Com m erce’), Article 16. 18 See the RightsWatch <http://w w w.rightsw atch.com > w ebsite. The conference, ‘Notice and Takedow n in Europe (2)’, w as held at the Renaissance Brussels Hotel on 12 Novem ber 2002. Details of the conference can be found in the ‘Events/Meetings’ section of the RightsWatch w ebsite. 19 The consortium that runs RightsWatch consists of the Music Alliance <http://w w w.m cps-prs-alliance.co.uk> (an operational venture betw een tw o UK licensing and collecting societies – the Mechanical Copyright Protection Society <http://w w w.mcps.co.uk> and the Performing Right Society <http://w w w.prs.co.uk>), assisted by British Music Rights <http://w w w.bmr.org>; British Telecom <http://w w w.bt.com>; Telia <http://w w w.telia.com>, assisted by consultant Philipson & Associates; Denton Wilde Sapte <http://w w w.dentonw ildesapte.com>; and the University of Florence <http://w w w.unifi.it>.

SANDY STARR

In the end, I said yes, and becam e an illegitim ate, unelected representative of Internet users in the developm ent of copyright regulation. It w as an interesting experience. Since there are obvious conflicts of com m ercial interest betw een publishers, rightsholders and ISPs, w hen it com es to copyright regulation, it’s fascinating to sit in on a situation w here their representatives all have to talk to one another directly and com e up w ith a com m on solution. The w ay it’s done is through the very fashionable, therapeutic m ethod of ‘consensus-building’ – an expression w hich conjures up an im age of a friendly discussion over a cup of tea. But w hat consensus-building really am ounts to is the careful m anagem ent of com prom ise, w here people negotiate endlessly and circuitously, and you try and steer them and m ake sense of the product. The hum an rights fram ew ork is essential to this m ethod of drafting regulation, because it em bodies com prom ise, allow ing liberties to be negotiated and constitutional rights ‘balanced’ w ith other concerns – as though you’re w riting a cooking recipe, rather than playing w ith the rights and freedom s of citizens w ho never elected you. Another im portant factor in this kind of regulation is risk m anagem ent. When regulation is conducted by the m arketplace, legal categories such as liability and indem nity cease to be w ell-defined absolutes, and instead becom e exchangeable com m odities. There w ere proposals in the RightsWatch w orking groups, for exam ple, that rightsholders should undertake to indem nify ISPs to a degree proportional to the speed w ith w hich ISPs rem ove content – in other w ords, that legal indem nity be used, by those w ho can afford it, as a bargaining chip for content rem oval. 70

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

The outcom es of the three different RightsWatch w orking groups are interesting exam ples of the kind of convoluted gym nastics that regulators (legitim ate or otherw ise) have to engage in, w hen trying to rationalize a w ilfully am biguous self-regulatory regim e: - The UK and Ireland w orking group (the one that I w orked for) called for the creation of a statutory legal underpinning for copyright regulation – going against the spirit of the Ecom m erce Directive, by trying to restore som e statutory coherence to copyright regulation. - The Northern European w orking group called for an im partial central body to oversee copyright regulation – but unfortunately, no m atter how ‘im partial’ and ‘central’ that regulatory body is supposed to be, that doesn’t m ake it an accountable or constitutionally legitim ate body. - The Southern European w orking group called for a m ultitrack procedure, w here you can trade liabilities and indem nities in order to guarantee faster rem oval – the risk m anagem ent m odel of com m odified justice.20 All three solutions suffer from the RightsWatch w orking groups having lim ited room for m anoeuvre. The w orking groups w ere left to scrabble around in a tiny space for debate, after the real debate w as had long ago, and closed dow n, by the European Com m ission. The European Com m ission’s brief to RightsWatch – to develop fair and coherent regulation in the context of the Ecom m erce Directive – w as an im possible one. The only possible consequence of struggling to m eet this brief w as greater or lesser erosion of the constitutional rights of the Internet user, as can be seen in the three w orking group solutions. 20 The three w orking group reports are available in full in the ‘Reports’ section of the RightsWatch <http://w w w.rightsw atch.com > w ebsite.

SANDY STARR

To conclude, European copyright regulation m akes for a useful case study of the dim inishing im portance of constitutional rights in the Internet age. It em bodies som e of the w orst sym ptom s of th is erosion of con stitution al righ ts: irrespon sible legislation ; com m odified justice; un accoun table represen tatives an d regulators; an d th e use of h um an righ ts to n egotiate liberties.

C O NSTITUTIO NAL RIGHTS IN

THE INTERNET

AGE

Jennifer Jenkins The Im po rtance o f Public D o m ain fo r Creativity, Inno vatio n, and Culture in the D igital Age

I. The Public D om a in in the D igita l Age. What is the public dom ain? It is often described as the w ellspring of m aterial that is freely available for everyone to use and build upon. It includes our heritage of science, art, culture, facts and ideas; it contains the raw m aterials for (am ong other things) scientific inquiry, artistic expression, political debate, scholarly research, and education. The potential functions of the public dom ain have been expanded and invigorated by the Internet, w hich allow s people to collect, process, and share inform ation w ith unprecedented speed and ease. Concerned constituents can readily access governm ent inform ation, scientists conducting experim ents from around the w orld can share data, m usicians w ho have never m et can create songs together, professors from different universities can share and discuss course m aterials, and researchers can explore the contents of vast digital archives. As the Internet offers enhanced opportunities for dem ocratic participation, innovation, creativity and know ledge advancem ent, the public dom ain becom es an even m ore vital resource. The Internet itself ow es its rapid developm ent to the fact that its core protocols, such as TCP/IP and HTML, are in the public dom ain. Yet, just as technology opens new doors, intellectual property law s are blockading them : the public dom ain is â&#x20AC;&#x2DC;under attackâ&#x20AC;&#x2122; by hastily expanding intellectual property rights. These rights are expanding in length (for exam ple, JENNIFER JENKINS

the recently upheld tw enty-year copyright term extension in the United States), in the subject m atter they cover (for exam ple, patent protection for gene sequences and for common business m ethods), and in the actions that they cover w ith respect to that subject m atter (for exam ple, legitim ate personal and non-com m ercial uses of digital content are being chilled, curtailed, and crim inalized). As m ore rights affect m ore people in m ore w ays, it is becom ing increasingly difficult to engage in routine acts of expression, even consum ption, w ithout violating som eone else’s intellectual property rights. II. Significa nt Threa ts to the Public D om a in. Follow ing are a few exam ples of expanding intellectual property protections that threaten to (or already do) dim inish the public dom ain. Co pyright Term Extensio n Act (CTEA) In the United States (‘US’) the copyright term originally lasted for 14 years, w ith the option to renew for another 14 years. O ver the past 40 years, how ever, this copyright term has been extended 11 times. The most recent term extension locked up an entire generation of w orks for an additional 20 years, extending the duration of copyright protection to the life of the author plus 70 years (and for w orks initially ow ned by a corporation to 95 years). This extension w as retroactively applied to existing w orks, thus removing w orks from the public domain w ith little plausible claim of offering incentives for creation – granting an extension of copyright to dead authors w ill hardly induce the creation of new w orks. Now, w orks created over 100 years ago m ay no longer be in the public dom ain. Artists, scholars, archivists, and others w ho w ish to use these w orks must first track dow n their copyright holders and clear necessary rights – a process that, even for seasoned copyright attorneys, is complicated, lengthy, expensive, and sometimes impossible. 74

T HE IMPO RTANCE O F PUBLIC D O MAIN

IN THE

D IGITAL AGE

The recent challenge to the CTEA in the US Supreme Court (Eldred v. Ashcroft, 537 US ___ (2003)) w as unsuccessful: declining to ‘second guess’ Congress, the Court held that Congress acted w ithin constitutional limits on its authority in adopting the term extension, and refused to find that the law w as a restriction of free speech. In the minds of many, this decision casts serious doubt on w hether there are real limits on Congress’s pow er to create intellectual property rights, and w hether the public domain is constitutionally protected. (Links to a w ealth of additional information on this case are available at Law rence Lessig’s w eblog: <http://cyberlaw.stanford.edu/lessig/blog/>.) D igital Millennium Co pyright Act (D MCA) As Law rence Lessig has w ritten, although the Internet w as initially built as an open inform ation environm ent, it is evolving into an architecture of perfect control. A m ajor source of this control is the DMCA. The DMCA protects technical m easures that directly control access to and uses of digital inform ation. As Professor Pam ela Sam uelson has observed, these m easures m ay protect digital versions of existing public dom ain w orks, and can persist after copyrights expire, keeping new w orks from entering the public dom ain. In addition, technical m easures do not have to be designed to allow for uses that are otherw ise privileged under copyright law, such as fair use. For exam ple, the DVD Content Scram bling System (DVD-CSS) doesn’t allow for fair uses, or even for users to skip through com m ercials. Under the anticircum vention provisions of the DMCA, it is illegal for anyone to circum vent a technical m easure, for exam ple by deciphering the encryption for a softw are system or building a tool to bypass it. Not only is circum vention itself illegal, but it is illegal even to share inform ation about how to circum vent technical m easures. JENNIFER JENKINS

The DMCA, w ith these legally-backed ‘digital fences’, gives copyright holders a pow erful and unprecedented tool for restricting access to and uses of digital w orks. In doing so, the DMCA threatens to thw art the free flow of digital inform ation and rob the public of existing rights under copyright law, m ost notably rights under the first sale and fair use doctrines. (Under the first sale doctrine, the ow ner of a copy of a w ork can lend, sell, or m odify that copy; allow ing, for exam ple, libraries to freely loan out books, or som eone to give a video to a friend. The fair use doctrine allow s for w ell-accepted and im portant uses such as parody, com m entary, criticism , new s reporting, education, research, and reverse engineering to achieve softw are com patibility.) As m any have recognized, these anticircum vention provisions have an obvious adverse effect on com puter science, and particularly on encryption research. For exam ple, Edw ard Felten, a com puter science professor, accepted a public challenge from the m usic industry and broke their new encryption code for digital m usic distribution. As he w as preparing to publish a paper about his findings, he received a threatening letter from the Recording Industry Association of Am erica (RIAA) w hich w arned him that publication of this paper w ould violate the DMCA. When he sought a declaratory judgem ent that publishing the paper w as not in fact a violation of the DMCA, the RIAA suddenly changed its position. The case nevertheless had chilling effects – in the w ake of the case, researchers began to shy aw ay from conferences in the US for fear of being arrested under the DMCA. Perhaps m ore alarm ing is the case of Dm itry Sklyarov, a Russian com puter program m er w ho faced Am erican jailtim e because he w rote softw are making it possible for people to read books encrypted by Adobe for its eBook reader. The DMCA 76

T HE IMPO RTANCE O F PUBLIC D O MAIN

IN THE

D IGITAL AGE

protected Adobe’s eBook encryption, even w here it w ould prevent readers from making otherw ise privileged uses of the same books. For exam ple, a reader w ho ow ned a hard copy of the book could freely read it, lend it to a friend, or excerpt a quote from it as perm itted under copyright law ; but these uses of the digital version w ould be prohibited. These uses w ould even be prohibited for digital versions of public dom ain books, w hich w ould otherw ise be free for unrestricted use. So far, challenges to the DMCA in US courts have failed. In a recent case, an appellate court enjoined not only posting, but also linking to other sites that post, DeCSS, a com puter program that circum vents the copy protection schem e for DVDs. (How ever, Jon Johanson, the fifteen-year-old Norw egian w ho w rote the code, w as recently acquitted in a Norw egian court of violating data break-in law s and for helping others to illegally copy film s.) Uniform Computer Information Transactions Act (‘UCITA’) UCITA essentially turns everyday ‘sales’ of digital w orks into a binding licence by legalizing ‘shrink-w rap’ licences that restrict the uses that purchasers m ay m ake of the w orks, even if these uses are otherw ise legal. UCITA presum es that these licences are enforceable, and this presum ption can only be overcom e after litigation. Therefore, as Professor Sam uelson has explained, m any w ill be chilled from engaging in activities that w ould eventually be found legitim ate in court. Fortunately, because of the criticism surrounding it, UCITA has only been enacted in tw o states. D atabase Rights O ne of the m ost basic tenants of the US intellectual property system is that unoriginal com pilations of facts, and the data in original com pilations, w ill rem ain in the public dom ain, to JENNIFER JENKINS

be available as the raw m aterial for future creativity and innovation. In recent years, how ever, the US Congress has considered a num ber of proposals that w ould protect the contents of databases sim ilarly to the directive adopted by the European Union in 1996, w hich allow s those w ho have m ade a ‘substantial investm ent’ in a database fifteen years of exclusive rights to control the extraction and reuse of all or substantial parts of the contents of that database. This directly takes facts and data out of the public dom ain, creating, as opponents have observed, ‘an unprecedented right to control transform ative, value-added, dow nstream uses of the resulting collection or of any useful fraction of that collection.’ Indeed, m uch of education, scientific research, and journalism w ould be significantly hindered if facts could be ow ned and their use restricted. In the US, these proposals have not been enacted yet because of strong opposition from scientists and legal scholars, w ho have em phasized the threat posed to the public dom ain and to innovation. III. Are Recent Exp a nsions of Intellectua l Prop erty Rights Necessa ry? As Professor Jam es Boyle has described, the US system of intellectual property is prem ised on the follow ing econom ic rationale. Inform ation goods – inventions, artistic w orks – are both non-rival and non-excludable. ‘Non-rival’ m eans that uses do not interfere w ith each other: w hile only one person can use a rival good such as a jacket, any num ber of people can sim ultaneously enjoy a non-rival good such as a sonnet. ‘Non-excludable’ m eans that it is difficult to exclude users from accessing the good – the sonnet could easily be available for anyone to use how, w here and w hen they w ish. The problem , then, is that the inform ation good can be copied and used an infinite num ber of tim es, but the producer of the 78

T HE IMPO RTANCE O F PUBLIC D O MAIN

IN THE

D IGITAL AGE

good cannot charge for each individual unit, defeating the econom ic incentive to produce. The intellectual property system seeks to solve this problem by granting the producer exclusive rights to the inform ation good for a lim ited period of tim e. The ‘copyright and patents clause’ in the US Constitution em pow ers Congress to grant such exclusive rights ‘To prom ote the Progress of Science and the useful Arts.’ This clause, as interpreted by the US Suprem e Court, strikes a cultural bargain that allow s Congress to grant exclusive private rights only if these rights also benefit the public – in the w ords of the Court, if they encourage ‘[i]nnovation, advancem ent and things w hich add to the sum of useful know ledge.’ In addition, these exclusive rights m ust not rem ove or restrict free access to m aterials that are already in the public dom ain. The recent expansions of intellectual property rights have upset this balance betw een private property rights and the public interest, and taken inputs directly out of the public dom ain. Many have raised concerns about the costs of recent intellectual property expansions; but the benefits are less clear. Professor Boyle has posed the critical questions: first, are these expansions of intellectual property rights necessary to respond to new copying technologies? The answ er is that w e don’t really know : as he points out, w hile the Internet does m ake copying easier, it m ay also low er the costs of production, distribution, and advertising, and increase the size of the potential m arket. Then, are these expansions desirable because they w ill encourage innovation or creativity? Again, w e don’t know : these law s w ere pushed through Congress by a handful of large content ow ners w ithout convincing em pirical evidence that they w ill stim ulate innovation or encourage creativity, and despite good argum ents that they w ill actually im pede innovation and stifle creativity. JENNIFER JENKINS

The challenges posed by digital technologies to our existing intellectual property schem e are num erous and com plex. Before reflexively granting expansions of intellectual property protection, w e need to better understand w hat is at stake: are these law s really necessary and beneficial, or are w e risking enorm ous costs to the public and the future of the Internet? As part of this inquiry, w e need to engage in careful em pirical studies to assess the actual effects of these law s. We also need to exam ine how the intellectual property system does and does not w ork in the digital environm ent – how incentives and production m ay operate differently, offering possible alternative solutions. A num ber of scholars have discussed the em ergence of non-proprietary production on the Internet. Professor Yochai Benkler argues that the current intellectual property expansions favour the ‘com m ercial proprietary production’ of large m edia com panies: these corporations produce m ass-m ediated culture, w hich is sold to enorm ous num bers of consum ers w ho sim ply receive finished goods. Consum ption is separated from production. But, on the Internet, consum ption and production are m ixed so that people are not m erely producers or consum ers, but users. Thus, different m odes of non-proprietary production have becom e increasingly im portant sources of inform ation and cultural m aterials. This includes, m ost notably, peer-to-peer production and professional production from the non-profit sector. The Internet prom ises to greatly expand these types of production, w hile current intellectual property law s endanger it. O ne of the m ost w ell-know n alternatives to proprietary production is open-source softw are, w hich is released under licences providing that anyone m ay copy, add to, or m odify the source code, and incorporate it into a new program ; but if they do so, their new program m ust also be covered by the sam e licence, w hich w ould m ake this new w ork freely available for 80

T HE IMPO RTANCE O F PUBLIC D O MAIN

IN THE

D IGITAL AGE

others to use and build upon. The open source m odel thereby ensures that source code is publicly available and encourages follow -on innovation. This m odel has becom e exem plary because it is successful: m any agree that open-source softw are exceeds the capabilities of proprietary softw are. In the w ords of Eben Moglen, open source w orks effectively outside of the incentive system offered by intellectual property because: ‘[I]ncentives’ is m erely a m etaphor, and as a m etaphor to describe hum an creative activity it’s pretty crum m y. I have said this before, but the better m etaphor arose on the day Michael Faraday first noticed w hat happened w hen he w rapped a coil of w ire around a m agnet and spun the m agnet. Current flow s in such a w ire, but w e don’t ask w hat the incentive is for the electrons to leave hom e. We say that the current results from an em ergent property of the system , w hich w e call induction… So if you w rap the Internet around every person on the planet and spin the planet, softw are flow s in the netw ork. It’s an em ergent property of connected hum an m inds that they create things for one another’s pleasure and to conquer their uneasy sense of being too alone.’ Th e In tern et is rich w ith exam ples of n on -proprietary production – in the absence of property rights, it appears that people w ill nevertheless produce, w hether for gifts, reputation , en joym en t, excitem en t, or oth er person al an d social rew ards. These m odes of production need to be analysed and better understood before locking the Internet into a proprietary fram ew ork. IV. A Positive Look a t the Public D om a in. The public dom ain has traditionally been thought of as the outside, the opposite, the negative, the ‘other’ to the intellectual property system ; in Professor David Lange’s w ords, the ‘dark star in the JENNIFER JENKINS

constellation of copyright.â&#x20AC;&#x2122; But the public dom ain is a vital, indispensable part of our intellectual property system . The inputs in the public dom ain are just as im portant to the function of the intellectual property system as the outputs protected by intellectual property, and ensuring that necessary m aterials rem ain in the public dom ain is equally im portant to the continued progress of science and culture as the granting of intellectual property rights. If w e are to preserve the public dom ain, w e need to reorient our thinking. As Professor Boyle has said, the public dom ain needs to be studied and appreciated w ith the sam e care and precision that has been afforded intellectual property. Rather than focusing only on the w isdom and draw backs of intellectual property protections, w e need to affirm atively focus on the public dom ain as a necessary part of the intellectual property system . To respond to the w ell-travelled rhetoric and argum ents in favour of intellectual property protection, the public dom ain needs its ow n vocabulary, m etaphors, rhetoric, agenda, scholarly research and policy analysis. We m ust strive to understand and articulate its role and function, appreciate its value, and set the appropriate balance betw een w hat is protected by intellectual property and w hat is in the public dom ain. Dram atically expanding intellectual property law s, and notably the Eldred decision, have begun to rouse a counterresponse by the public. We need to capitalize on this, and m obilize a w ide group of constituencies w ho are all affected by threats to the public dom ain: w riters, m usicians, scientists, archivists, librarians, historians, researchers, softw are developers, journalists, educators, and Internet users. If all of us w ork together, w e m ay be able to effectively nurture and safeguard the public dom ain in the digital age. 82

T HE IMPO RTANCE O F PUBLIC D O MAIN

IN THE

D IGITAL AGE

This overview extracts from the developing body of public dom ain scholarship a basic fram ew ork for thinking about the importance of the public domain. For a more thorough discussion of the public domain and its role in a variety of areas, please visit the w ebsite of the Conference on the Public Domain, the first-ever conference to focus squarely on this subject, held at Duke Law School in November, 2001. The w ebcast is available at <http://w w w.law.duke.edu/pd/realcast.htm >. Papers from this conference w ill be published in an upcom ing volum e entitled ‘The Public Dom ain’, 66 Law & Contem p. Probs. (Winter/Spring 2003), w hich w ill be available online at <http://w w w.law.duke.edu/journals/lcp/>. Several of the papers in the volume are referred to in this overview : these include Yochai Benkler, ‘Through the Looking Glass: Alice and the Constitutional Foundations of the Public Dom ain’; Jam es Boyle, ‘The Second Enclosure Movem ent and the Construction of the Public Dom ain’; and Pam ela Sam uelson, ‘Mapping the Digital Public Dom ain: Threats and O pportunities’.

JENNIFER JENKINS

Felipe Rodriquez Burning the Village to Ro as t the Pig:1 Censo rship o f O nline Media C ensorship . In the strict sense, censorship is an act of governm ent in w hich it becom es crim inal to obtain or dissem inate certain types of inform ation. The term is also used to describe restrictions on the w ay ideas are expressed, such as using profanity. The purpose of censorship is to control people by influencing the w ay they think and act. It is understood that people’s thoughts and actions are shaped by the inform ation they have available. To the extent one can control w hat inform ation people have, one is able to control the people them selves. For this reason, censorship is very com m on am ong, perhaps even essential to, totalitarian governm ents. Source: Wikipedia, the Free encyclopedia

In t r o d u ct io n . Since the arrival of the Internet as a popular m edium to exchange inform ation, concerns have been expressed about access to online content deem ed to be offensive or dangerous. The absence of national borders on the Internet has an effect on the availability and proliferation of controversial inform ation. Com m unity standards are a local affair, and different com m unities have different standards. Inform ation that in one country is illegal, such as bestiality in the United States, is legal in another, such as the Netherlands. Vice versa neoNazi propaganda is constitutionally protected in the United States, w hereas it is illegal in the Netherlands. In the analogue age this w as a trivial difference, as it w as possible to control 1

‘Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig.’ Judge Stew art Dalzell, ACLU -vReno, 11 June 1996.

FELIPE RO DRIQ UEZ

the distribution of the carrier of inform ation, such as paper, audio/video cassettes or electrom agnetic w aves. There w as alw ays a sm all am ount of clandestine distribution but the public m ajority w as m ostly unable to access censored inform ation. Digital com m unications have changed the paradigm , and w e now live in a w orld w here inform ation is not restricted by physical boundaries, except for a few exceptions such as China and Saudi Arabia. O n the Internet a Dutch person can access any inform ation on the US part of the Internet, even if that inform ation is not legal in the Netherlands. And a US national can access any kind of inform ation in the Netherlands that is illegal in the US. Censorship law s are som etim es seen by politicians and governm ents as the solution to these problem s, and several countries have im plem ented com prehensive system s of censorship on the Internet. Parents, schools and other entities have turned to privately m anufactured Internet rating and filtering program s, w ith varying rates of success. The debate about online content is still very m uch alive, and none of the available solutions to protect against offensive content are com pletely satisfactory. At one extrem e of the debate are religious leaders and com m unity groups that w ant som e sort of protection against offensive content on the Internet in a desperate attem pt to protect the local com m unity standards. At the other extrem e are civil liberty groups that see any form of censorship as a threat to freedom of speech. Regardless of the m oral position on censorship, the reality is that effective censorship on the Internet is incredibly difficult w ithout harm ing legal access to inform ation. This paper aim s to provide a birdâ&#x20AC;&#x2122;s eye view of online censorship and the technologies that are used to im plem ent or circum vent censorship; it is not an exhaustive analysis. 86

BURNING

THE

VILLAGE TO RO AST

THE

PIG

O verview of Internet Technologies. The debate about censorship of online m edia is usually focused on the World Wide Web 2 and Usenet new sgroups 3 . The Internet provides m uch m ore than just the Web, e-m ail and Usenet. In any discussion about censorship w e need to define w hat technology w e are talking about. I am providing here a limited overview of available technologies, to aid us in the discussion about censorship of online m edia. E-mail. ‘E-m ail, or em ail, is sh ort for “electron ic m ail” an d refers to com posin g, sen din g, an d receivin g m essages over elect ro n ic co m m u n icat io n syst em s. M o st e-m ail syst em s today use th e In tern et, an d e-m ail is th e m ost popular use of th e In tern et.’4 E-m ail is n ot lim ited to private con versations; there are num erous public e-m ail m ailing lists on the Internet that anyone can subscribe to. Many people that have used the Internet for a w hile receive unw anted e-m ail, also called spam 5 . These e-m ails are often scam s or advertisem ents for erotic products, such as penis enlargem ent or live sex show s. Som e of the e-m ails the author regularly gets in his m ailbox have subject lines such as: ‘Get Christm as Money – Santa’s Best Kept Secret’ ‘Make your love life better, grow inches now ’ ‘O ne form , one tim e, thousands of instant cash prizes!’ ‘Your health care…’ ‘Add ? inch in one w eek’ ‘Sam ple viagra’ ‘Hello it’s Teresa, naughty girls w ho love to sm oke’ et cetera 2 3 4 5

The Web, see glossary See glossary Source: <w w w.w ikipedia.org> See glossary under Spam m ing

FELIPE RO DRIQ UEZ

In som e countries the senders of com m ercial advertising e-m ails need to include an opt-out m echanism , w hich enables the receiver to unsubscribe from that particular spam list, but in practice these opt-out m echanism s rarely w ork. The author has dealt w ith the spam problem by turning on a set of filters provided by his provider, XS4ALL. This strategy identifies 99 per cent of spam , and has enabled the author to receive these m essages in a separate folder. The Wo rld Wide Web. The Web is usually the m ain target of Internet censorship proposals. The Web and e-m ail are the m ost visible com ponents of the Internet. Therefore the Web arouses m uch of the controversy about online content. A lot of content on the World Wide Web is static, but not all of it is. For exam ple, the m any w ebcam s 6 are anything but static, and provide a constantly changing picture of the environm ent the w ebcam is pointed at. Webcam s are som etim es used by users to engage in am ateur pornography, to share their pornographic fantasies w ith an audience.7 Usenet. ‘Usen et (also kn ow n as Netn ew s) is a set of protocols for gen eratin g, storin g an d retrievin g n ew s “articles” (w h ich resem ble m ail m essages) an d for exch an gin g th em am on gst a readersh ip w h ich is poten tially w idely distributed. It is organ ized aroun d n ew sgroups, w ith each n ew sgroup carryin g articles about a specific topic.’8 Close to a m illion m essages are published in Usenet discussion groups every day 9 , generating slightly m ore than 130 gigabytes 10 of data. O ne gigabyte equals over 1,000 books of text.11 Google provides a searchable archive of the Usenet.12 A sm all percentage of the m essages on Usenet contain pornographic content 13 or are used to exchange pirated softw are 14 . Com m ercial spam m essages are prolific on the Usenet, and concerned citizens have taken it upon them selves to censor these m essages by erasing them for the rest of the com m unity, 88

BURNING

THE

VILLAGE TO RO AST

THE

PIG

a dubious activity because it takes aw ay the choice of the individual to legally access the inform ation and filter it if deem ed necessary. These grass-roots com m unity censors defend them selves w ith the argum ent that w ithout their activity the Usenet new sgroups w ould soon be flooded by endless am ounts of com m ercial advertising. IRC & Instant Messenger Techno lo gy. ‘Internet Relay Chat (IRC) is a form of instant com m unication over the Internet. IRC is a predecessor to the class of applications know n as instant m essaging. IRC has a decentralized netw ork of servers that can be accessed by special client program s. The protocol for IRC is open, and there are m any client (and server) im plem entations. Unlike popular instant m essaging applications, there is not an inherent login id that one m ust acquire; it’s typically a m uch m ore anonym ous m edium than instant m essaging.’15 ‘An instant messenger is a computer application w hich allow s instant text communication through a netw ork such as the Internet. An instant messenger is a client w hich hooks up to an instant messaging service. Instant messaging differs from e-mail in that conversations over instant messaging mediums happen in real-time. Generally, both parties in the conversation see each line of text right after it is typed (line-by-line), thus making it more like a telephone conversation than exchanging letters.’16 6 7 8 9 10 11 12 13 14 15 16

See glossary See <http://w w w.w ebcam now.com >, unm onitored adult area Source: <http://w w w.w ikipedia.org/w iki/Usenet> Usenet Stats: <http://new s.gam m a.ru/stats-w eek.htm l> See glossary Com puter Basics, storage devices <http://dragon.ep.usm .edu/~it365/m odule/Basics/storage.htm > Google groups at <http://groups.google.com > See alt.binaries.erotica.* Usenet groups See alt.binaries.w arez.* Usenet groups Wikipedia <http://w w w.w ikipedia.org/w iki/IRC> Wikipedia <http://w w w.w ikipedia.org/w iki/Instant_m essaging>

FELIPE RO DRIQ UEZ

IRC enables private com m unications and group chats. Group chats can be private and restricted, or open to the public. IRC and som e of the instant m essenger technology also enable the user to transm it files to other users, and w ith robot softw are this file distribution facility is som etim es autom ated. The content on IRC is highly dynam ic, consisting of the private and public chat m essages that users exchange. Censoring or filtering IRC is unlikely to be successful because of these dynam ics. Many of the concerns about safeguarding children from predatory behaviour by adults on the Internet concern chat or m essenger technology. Streaming Media. Stream ing m edia are the online alternative to traditional broadcasting. Stream ing m edia client 17 softw are enables the user to access live or archived audio and video content. Many radio stations provide their broadcast online through stream ing m edia technology, and som e television broadcasters do as w ell. Stream ing m edia technology is not lim ited to traditional broadcasting organizations; it can be used by end-users as w ell to participate in video chat groups or to broadcast their ow n productions. Som e providers of pornographic content use stream ing m edia technology for their pay-per-view products. Peer-to -Peer Techno lo gy. â&#x20AC;&#x2DC;Pu t sim p ly, p eer-t o -p eer co m p u t in g is t h e sh arin g o f co m p u t er reso u rces an d services b y d irect exch an ge b et w een syst em s. T h ese reso u rces an d services in clu d e t h e exch an ge o f in fo rm at io n , p ro cessin g cycles, cach e st o rage, an d d isk st o rage fo r files.â&#x20AC;&#x2122;18 Peer-to-peer technology acquired popularity and a certain am ount of notoriety w ith the introduction of the Napster19 file sharing service, w hich provided a very popular m usic sw apping platform . The service soon becam e the object of scrutiny 90

BURNING

THE

VILLAGE TO RO AST

THE

PIG

of the RIAA, the Recording Industry Association of Am erica, because m uch of the m usic that people exchanged through the Napster service infringed the copyright of the recording industry. The RIAA litigated against Napster, and w as ultim ately able to shut it dow n. Peer-to-peer file exchange technology is still around today, and is m ore popular than ever. It is im portant to keep the dynam ic nature of inform ation on the Internet in m ind, as this provides im portant challenges to any attem pt to censor online content. C ensorship Tod a y: A Few Exa m p les. Historically the censor w orked tow ards enforcing local com m unity standards, this w as possible because analogue inform ation w as m ostly locally distributed. Enforcem ent of censorship w as relatively easy because inform ation had a physical carrier, and a licence w as required w hen broadcasting through the ether. The use and distribution of these carriers could be controlled, the carrier could be destroyed or confiscated, or a licensed broadcaster could be threatened and closed dow n. Such controls have becom e unpractical since the popularization of the Internet. Digital inform ation can be infinitely replicated w ithout cost inhibition; the absence of significant reproduction costs has caused an explosion of published inform ation. The global inform ation infrastructure has transcended the region, as it is by definition a global grid. The effects of infinite duplication and internationalization of inform ation pose an im possible challenge for the censor. The resources that are required to review and block the m ore than four billion pages of w eb content around the w orld are m ind-boggling. 17 See glossary 18 â&#x20AC;&#x2DC;What is Peer-to-Peerâ&#x20AC;&#x2122; <http://w w w.peer-to-peerw g.org/w hatis/> 19 See glossary

FELIPE RO DRIQ UEZ

O ne im portant thought to keep in m ind is w hich technology w e are talking about w hen discussing online censorship. Are w e talking about the World Wide Web, or about e-m ail, or about chatboxes, or about peer-to-peer file exchange netw orks, or about stream ing m edia, or about Usenet new sgroups? Discussions about online censorship are usually lim ited to the Web, but the Internet offers so m uch m ore than just the Web. Go vernment Censo rship. How does one enforce local com m unity standards in a global environm ent? China has im plem ented the m ost com prehensive censorship system on the Internet. The Internet is somew hat of a paradox to the Chinese authorities, as it provides access to information that w ill be crucial to the country’s industrial and scientific development. Yet at the same time the Internet greatly complicates the pursuit of internal security, and officials have w arned that the Internet could be ‘harmful to social stability’.20 The system of censorship China has im plem ented involves routers that block access to certain IP addresses, 21 surveillance of users, the use of inform ers, arrests and seizures. 22 China focuses prim arily on w ebsites and e-m ail. Technologically the system is quite crude, because thousands of w ebsites m ay be grouped under a single IP address. Blocking the IP address blocks all those w ebsites, even if the content on those sites is not controversial. Im plem enting an IP blocklist also degrades netw ork perform ance; large blocklists can cause serious performance problems. ‘Blocking can be done only intermittently, because the softw are does not have enough computer pow er to block every objectionable site all the time.’23 An IP blocklist can be defeated by changing, or rotating, the IP address of a w ebsite. Recently the Ministry for Public Security im plem ented a system of dom ain nam e hijacking, w hich is a som ew hat m ore sophisticated system of access control. The 92

BURNING

THE

VILLAGE TO RO AST

THE

PIG

technique w orks by falsifying the records in Dom ain Nam e Servers24 (DNS) throughout China. The dom ain nam e system is the connection betw een a domain name, such as w w w.xs4all.nl, and the IP address of that site. By interfering w ith the DNS system the Chinese authorities are able to divert traffic25 to certain dom ains to unrelated IP addresses, thereby blocking access to the w ebsite and diverting traffic to another (governm ent controlled) w ebsite.26 There are som e indications that China has developed the capability to autom atically block individual w eb pages by using content rules, based on individual w ords, or com binations of w ords that appear on the page.27 It is estim ated that the Governm ent em ploys as m any as 30,000 people to enforce Internet censorship.28 ‘...Chinese filtering is quite effective, not as granular as Saudi Arabia.’29 Saudi Arabia has a sim ilar, but less effective, system of cen sorsh ip, aim in g to cen sor offen sive an d un islam ic con ten t. 30 It is estim ated th at Saudi Arabia blocks aroun d 400,000 IP addresses. 31 In Saudi Arabia a user th at tries to 20 Zhao Ying, ‘Information and Security Issues’, Jingji Guanli, 5 (5 May 1998), as printed in Rand Report, ‘You’ve got dissent!’, chap. 2, Government Counter Strategies, 48 ff. 21 See glossary 22 Rand Report, ‘You’ve got dissent!’, chap. 2, 49 ff. 23 Rand Report, ‘You’ve got dissent!’, chap. 2, 64 ff. 24 See glossary 25 See glossary 26 Bill Dong, ‘Forbidden Sites Hijacked all over China’, Dynamic Internet Technology <http://w w w.dit-inc.us/report/hj.htm > 27 ‘The Shrinking Frontiers’, O nline Journalism Review <http://w w w.ojr.org/ojr/w orld_reports/1037922526.php> 28 ‘A glimpse of China’s business, technology revolution’, China Online (20 March 2002) <http://w w w.chinaonline.com/commentary_analysis/thisw k_comm/020320/C0 2031231.asp> 29 Q uote by Harvard researcher Ben Edelm an, ‘The Shrinking Frontiers’, O nline Journalism Review <http://w w w.ojr.org/ojr/w orld_reports/1037922526.php> 30 Docum entation of Internet filtering in Saudi Arabia at <http://cyber.law.harvard.edu/filtering/saudiarabia> 31 Hum an Rights Watch Report for Saudi Arabia at <http://w w w.hrw.org/w r2k2/m ena7.htm l>

FELIPE RO DRIQ UEZ

access a censored w ebsite is show n a notice that the site has been blocked; this is not the case in China.32 Saudi Arabia and China are tw o exam ples w here censorship on the Internet has been im plem ented som ew hat successfully. It is notew orthy that both are repressive regim es, w hich has enabled these states to take control of the distribution of digital content, the use of inform ers and intim idation. O ther countries, for exam ple Singapore, South Korea, Iran, and Syria, have im plem ented sim ilar censorship system s, w ith varying rates of success. Although these censorship fram ew orks have achieved a degree of success in suppressing inform ation, it m ust also be noted that a lot of legal and uncontroversial content is filtered as a consequence, because the technological tools that are im plem ented are crude and usually affect entire w ebsites or even hundreds of w eb servers that share the sam e IP address. Im portant elem ents of the censorship fram ew ork in all these countries are the low -tech solutions, such as the use of inform ers, arrests, seizures and intim idation. Im plem enting online censorship in a dem ocratic nation is infinitely m ore com plicated, and so far there have been very few successful attem pts at doing so. Australia has the m ost com prehensive system of censorship am ong dem ocratic nations since it im plem ented the ‘Broadcasting Services Am endm ent (O nline Services) Bill 1999’. ‘The Broadcasting Services Amendment (Online Services) Act 1999 commenced operation on 1 January 2000. To date (November 2002) it has been implemented in a w ay that does not require ISPs to block access to content on overseas sites. (The government regulator has the pow er to require ISP blocking if they consider the current implementation of the law to be inadequate). How ever, ISPs/content hosts are required by law to delete Australianhosted content on receipt of a take-dow n notice from the government regulator, i.e. the Australian Broadcasting Authority (”ABA”). The regime is complaints based. The ABA implemented a Complaints System w hich enables Australian citizens to lodge complaints about Internet content that is, or is likely to be, classified/rated: 94

BURNING

THE

VILLAGE TO RO AST

THE

PIG

• R18 (information deemed likely to be disturbing or harmful to persons under 18 years), • X18 (non violent sexually explicit material involving consenting adults) or RC (Refused Classification/banned) by the Government censorship office, i.e. the Office of Film and Literature Classification (”OFLC”). Internet content (including text, static images and moving images) is classified using criteria set out in the Classification Guidelines for Films and Videotapes (not the Guidelines for Publications) established under the Commonw ealth Classification Act. • Content hosted in Australia: The ABA issues take-down notices to ISPs and other Internet Content Hosts requiring them (under threat of fines) to delete content on their servers (e.g. Web, Usenet and FTP) that is classified X18 or RC, and also R18 if access to R18-rated material is not subject to an ABA approved adult verification system (AVS). The approved AVS for R18 material requires sites, including non-commercial sites and those w ho charge no fee for access, to collect personal information from visitors to their site, such as credit card details or a copy of a driver’s licence or birth certificate, before granting them access to R-rated information. The ABA is required to have Australian-hosted content classified by the OFLC before issuing a final take-dow n notice (an interim take-dow n notice is issued in the case of material likely to be classified X18 or RC, but not R18). • Content hosted outside Australia: The ABA issues notices to approved filtering/blocking softw are providers informing them to add content the ABA considers likely to be classified X18 or RC (but not R18) to their blacklist. Australians are not required by law to use filtering/blocking softw are products. The ABA is not required to have content on overseas sites classified by the OFLC, the ABA makes its ow n determination of w hether the content w ould be likely to be classified X18 or RC.’33

The problem w ith Australian Internet censorship is obvious; it only applies to local content, as Australia has no jurisdiction or technology to apply censorship to inform ation that is hosted outside the country. The Governm ent prom otes the use of com m ercial filtering softw are for this purpose. Im plem enting the Chinese technology fram ew ork is too crude for Australia, as this w ould interfere w ith the freedom of its citizens to access content that is legal and uncontroversial. The Australian censorship legislation has sym bolic value; the Governm ent can say that it has im plem ented lim itations 32 ‘The Shrinking Frontiers’, O nline Journalism Review <http://w w w.ojr.org/ojr/w orld_reports/1037922526.php> 33 Electronic Frontiers Australia, Internet Censorship in Australia <http://w w w.efa.org.au/Issues/Censor/cens1.htm l>

FELIPE RO DRIQ UEZ

on the use of the Internet w ith the aim to protect com m unity standards. There is no m easurable effect on the availability of harm ful content overseas w hen the user chooses not to use com m ercial filtering softw are. The legislation is an effort in m anaging perceptions; there seem s to be a perception in som e parts of the Australian com m unity (especially am ong church leaders) that the Internet is an unsafe environm ent. To counter this notion the Governm ent im plem ented legislation to create the new perception that som ething is being done by the Governm ent about offensive content. The Australian censorship fram ew ork is a product of dom estic politics, and has little to do w ith result driven policy. There are indications that locally censored inform ation has been m oved overseas, as it is trivial to relocate a w ebsite to another jurisdiction. 34 Australiaâ&#x20AC;&#x2122;s censorship focuses prim arily on w ebsites and new sgroups. Co mmercial Censo rw are. Censorw are 35 is â&#x20AC;&#x2DC;softw are w hich is designed to prevent another person from sending or receiving information (usually on the w eb).â&#x20AC;&#x2122;36 It is com m ercial filtering softw are that can be purchased by users, it allow s the user to install filters that lim it access to certain inform ation on the Internet. In Australia ISPs37 m ust m ake filtering softw are available to their customers at cost price. Examples of such softw are are WebSENSE, Net Nanny, CYBERsitter and Cyber Patrol. Censorw are is a popular alternative to governm ent censorship, because it allow s the user to choose if filtering is applied. It provides parents w ith a tangible tool to protect their children from offensive content. Despite this prom ise, there are considerable problem s w ith com m ercial filtering softw are. O verblocking or underblocking are a concern, because access to harm less inform ation is often denied, or access is inadvertently granted to offensive content.38 96

BURNING

THE

VILLAGE TO RO AST

THE

PIG

A sam ple 39 of the m istakes that can be found in censorw are: • BESS blocked the homepages of the Traditional Values Coalition and Massachusetts Congressman Edw ard Markey. • Cyber Patrol blocked MIT’s League for Programming Freedom, part of the City of Hiroshima w ebsite, Georgia O ’Keeffe and Vincent Van Gogh sites, and the monogamy-advocating Society for the Promotion of Unconditional Relationships. • CYBERsitter blocked virtually all gay and lesbian sites and, after detecting the phrase ‘least 21’, blocked a new s item on the Amnesty International w ebsite (the offending sentence read, ‘Reports of shootings in Irian Jaya bring to at least 21 the number of people in Indonesia and East Timor killed or w ounded’). • I-Gear blocked an essay on ‘Indecency on the Internet: Lessons from the Art World’, the United Nations report ‘HIV/AIDS: The Global Epidemic’, and the homepages of four photography galleries. • Net Nanny, SurfWatch, Cybersitter, and BESS, among other products, blocked House Majority Leader Richard ‘Dick’ Armey’s official w ebsite upon detecting the w ord ‘dick’. • SafeSurf blocked the homepages of the Wisconsin Civil Liberties Union and the National Coalition Against Censorship. • SmartFilter blocked the Declaration of Independence, Shakespeare’s complete plays, Moby Dick, and Marijuana: Facts for Teens, a brochure published by the National Institute on Drug Abuse (a division of the National Institutes of Health). • SurfWatch blocked such human-rights sites as the Commissioner of the Council of the Baltic Sea States and Algeria Watch, as w ell as the University of Kansas’s Archie R. Dykes Medical Library (upon detecting the w ord ‘dykes’). • WebSENSE blocked the Jew ish Teens page and the Canine Molecular Genetics Project at Michigan State University. • X-Stop blocked the National Journal of Sexual O rientation Law, Carnegie Mellon University’s Banned Books page, ‘Let’s Have an Affair’ catering company, and, through its ‘foul w ord’ function, searches for Bastard O ut of Carolina and ‘The O w l and the Pussy Cat’. 34 Electronic Frontiers Australia, Internet Censorship in Australia <http://w w w.efa.org.au/Issues/Censor/cens1.htm l> 35 See glossary 36 <http://censorw are.net/article.pl?sid=01/02/10/2241204> 37 See glossary 38 Marjorie Heins & Christina Cho, ‘Internet Filters: A Public Policy Report’, National Coalition Against Censorship (Fall 2001) <http://w w w.ncac.org/issues/internetfilters.htm l> 39 Marjorie Heins & Christina Cho, ‘Internet Filters: A Public Policy Report’, National Coalition Against Censorship (Fall 2001) <http://www.ncac.org/issues/internetfilters.html>

FELIPE RO DRIQ UEZ

The PICS/ ICRA Illusio n – Filtering and Rating. Attaching labels to content on the Internet is often prom oted as a w ay to protect children from harm ful content, w hile at the sam e tim e not preventing adult access to that inform ation. O ne of the w ays that has been prom oted to create a child-friendly Internet w as the PICS initiative, the Platform for Internet Content Selection. ‘The PICS specification enables labels (m etadata) to be associated w ith Internet content. It w as originally designed to help parents and teachers control w hat children access on the Internet, but it also facilitates other uses for labels, including code signing and privacy.’40 Content labelling m echanism s have often been prom oted as the best com prom ise in censorship, as they provide a selective filtering m echanism w here the user or parent can choose w hat type of inform ation is filtered. It rem ains a popular alternative to censorship in governm ent circles and w ith industry lobbyists. But it is unrealistic to have any expectations about labelling technology; the debate has been going on for m ore than seven 41 years and very little progress has been m ade. Discussions about content labelling are m ostly theoretic, and the w ords ‘if adopted’ are often repeated. Content labelling is unlikely to succeed because it suffers from the chicken and egg problem . As long as it is not w idely used, users have no incentive to label the content on their w ebsite. And content labelling w ill never be w idely used if insufficient users have labelled the content on their site. A user that today turns on label-based content filtering in their brow ser effectively blocks access to m ost of the Internet, not exactly a display of a user-friendly technology that is likely to be adopted spontaneously by large am ounts of people. An additional problem w ith any content labelling system is the integrity of the label that the user attaches to his or her site. If som eone had the intention to sabotage and pervert the 98

BURNING

THE

VILLAGE TO RO AST

THE

PIG

content labelling system , he could m islabel offensive content as being suitable for all ages – w ith obvious effects. There are quite a few concerns about content labelling in the civil liberties community. These concerns revolve around the fact that once information is labelled, it becomes very easy for a government to set up national systems of censorship based on these labels. Part of this concern has been ‘that governm ents w ould enforce or coerce the use of PICS facilitated systems. The probability of mandatory self-rating and prosecution for inadvertently m is-labelling, or failing to label, becam e obvious.’42 Content rating and filtering is one of three pillars in the EU Safer Internet Action Plan, and eight m illion euros have been allocated to projects that study rating or facilitate and create rating and filtering technology.43 Child Po rno graphy. In every debate about censorship child pornography is put forw ard as an argument in defence of online censorship. Child pornography and predatory behaviour are problem s on the Internet, and can be encountered in obscure places. But it is not realistic to think that censorship is a solution. The illegal nature of the content causes it to be distributed underground, in chatrooms and transient new sgroups. The content and offenders are difficult to trace, and the com m unities that distribute it are not easily accessible to the general public. Child pornography is a law enforcem ent problem . There is no country in the w orld w here the distribution of this type of content is legal; it is the only content w here a degree of global consensus has been reached. Law enforcem ent agencies 40 W3C Platform for Internet Content Selection <http://w w w.w 3.org/PICS/> 41 Chronology: PICS developm ent and Internet censorship proposals at <http://w w w.libertus.net/liberty/picsrisk2.htm l#1995> 42 ‘The Net Labelling Delusion: Saviour or Devil’ <http://libertus.net/liberty/label.htm l> 43 EU Inform ation Society, ‘Safer Internet Action Plan’ <http://europa.eu.int/inform ation_society/program m es/iap/index_en.htm >

FELIPE RO DRIQ UEZ

routinely investigate online child pornography, and are having a good success rate. Agencies are co-operating internationally to combat the problem. Law enforcement agencies have become proactive in recent years and undercover sting operations are used, such as the FBIâ&#x20AC;&#x2122;s Innocent Images Task Force.44 Som e Internet service providers have blocked access to certain new sgroups that are routinely used to exchange im ages containing child pornography. Ho tline Systems. In June 1996 a hotline w as established in the Netherlands to com bat child pornography online.45 This hotline provides a facility for Internet users to report child pornographic content on the Internet. The hotline has a perm anent liaison w ith the Dutch crim inal investigation unit, and reports are forw arded to this unit. The hotline w as a direct response to com m unity concerns about child pornography on the Internet, and the fact that law enforcem ent agencies w ere unprepared to address this problem . Hotlines have since been established in Australia, Austria, Belgium , Denm ark, Finland, France, Germ any, Iceland, Ireland, Spain, Sw eden, the UK and the USA.46 The m odus operandi of these hotlines varies, som e hotlines w ill issue take-dow n notices, som e w ill report illegal content to the police, som e do both. Hotlines provide an interm ediate facility to report illegal content, as m any law enforcem ent agencies do not yet provide quick and efficient m echanism s to report a com plaint. O ne w ould expect governm ent and law enforcem ent agencies to eventually take over the functions that hotlines are currently providing, because one usually reports a crim e directly to a governm ent agency, and not to a third party NGO . 47 Hotline system s are one of three pillars in the EU Safer Internet Action Plan, and 1,975 m illion euros have been invested by the European Com m ission in hotline projects. 48 100

BURNING

THE

VILLAGE TO RO AST

THE

PIG

Commercial Censorship – Intellectual Property and Copyrights Peer-to -Peer. Softw are-piracy 49 has existed since the beginning of softw are. It has alw ays been possible to find illegal copies of virtually any softw are product online. Illegal softw are is distributed through a variety of technologies, the World Wide Web, the Usenet new sgroups 50 , the File Transfer Protocol51, and m ore recently through peer-to-peer technology. Softw are com panies have learned to live w ith the fact that any copyright protection m echanism s w ill be broken, how ever sophisticated they m ay be. There are softw are patches 52 and tools available to break the copyright protection m echanism s of alm ost any available softw are product. It is a m atter of pride for pirates to publish new softw are or softw are cracking tools 53 before, or just after, the product arrives in the shops. It is only in recent years that content, such as m usic and screen content, has becom e digitized. Digitized content has very sim ilar attributes to softw are, such as ease of online distribution and problem s w ith copyright protection m echanism s that are routinely broken. Technologies such as Napster 54 and other peer-to-peer protocols, together w ith the arrival of broadband technologies in the hom e, provide a convenient and enorm ously popular m ethod for the sharing of softw are, m usic and screen content am ong users. 44 ‘FBI Fights Child Pornography O nline’, The O regonian, 20 Novem ber 2002 <http://w w w.oregonlive.com /new s/oregonian/index.ssf?/xm l/story.ssf/htm l_ standard.xsl?/base/new s/1037797091130520.xm l> 45 <http://w w w.m eldpunt.org/> 46 See the list of m em bers of The Association of Internet Hotline Providers in Europe at <http://w w w.inhope.org/english/about/m em bers.htm > 47 See glossary 48 EU Inform ation Society, ‘Safer Internet Action Plan’ <http://europa.eu.int/inform ation_society/program m es/iap/index_en.htm > 49 – 54 See glossary

FELIPE RO DRIQ UEZ

101

The m usic industry counter-attacked by pursuing Napster and other com panies such as Morpheus55 and Kazaa 56 in the courts. Napster closed dow n, but peer-to-peer file sharing technologies fragm ented into a dozen different netw orks and are m ore popular than ever. Most of these netw orks have no central point of control such as Napster had, m aking it im possible to litigate against a single entity to close dow n these netw orks. â&#x20AC;&#x2DC;O n July 25, 2002, Representative How ard Berman (D-Cal.) introduced a bill, H.R. 5211 in the House of Representatives that w ould give copyright ow ners the right to violate the law in their efforts to stop the unauthorized circulation of their w orks on peer-to-peer netw orks.â&#x20AC;&#x2122;57 If passed this bill w ould allow copyright holders to organize sabotage against copyright infringem ent, a form of state sanctioned cyber terrorism . The bill has not yet passed, and has been referred to the US Subcom m ittee on Courts, the Internet, and Intellectual Property.58 A recent research paper published by com puter scientists w orking for Microsoft Corporation concluded that attem pts to stop the sw apping of copyrighted w orks on online peer-topeer netw orks w ill not w ork.59 D enial o f Service Attacks. 60 A denial of service attack is a form of censorship, because it disables access to inform ation through sabotage and flooding. Although H.R. 5211, if passed, w ill allow copyright holders the right to attack piracy, such attacks are already happening to som e degree. O n peer-to-peer netw orks one is likely to find m any spoof files. Certain new sgroups, w here pirated softw are is exchanged, are regularly bom bed w ith thousands of em pty m essages.61 The best docum ented denial of service attacks against content on the Internet w ere organized by m em bers of the Church of Scientology (CoS).62 CoS m em bers or sym pathizers 102

BURNING

THE

VILLAGE TO RO AST

THE

PIG

have tried to perm anently erase the new sgroup <alt.religion. scientology> by issuing forged control m essages that rem ove the group from Usenet new s servers around the w orld. When that failed, they bom bed the new sgroup w ith thousands of duplicated m essages, in order to silence the discussion am ong critics of the church. Individual m essages from critics w ere also routinely cancelled (erased). Search Engine Censo rship. Search engines have becom e an im portant access tool to the Internet. It is the tool of choice for people to locate inform ation, and for som e people it has taken the place of the Universal Resource Locator (URL)63 m ethod of typing the entire address of a w ebsite. CoS is a litigious organization, and law yers are often used to intimidate critics and other organizations in order to prevent dissemination of copyrighted or critical materials. In May 2002 the church ‘threatened to sue Google64 for contributory copyright violations for merely listing links to Web pages that, the Scientologists said, illegally published copyrighted passages. The church demanded that Google remove the links to the site, O peration Clambake 65, from its automated search results.’66 The request resulted in the removal of an entire w ebsite, xenu.net, from the 55, 56 See glossary 57 The Berman P2P Bill: Vigilantism Unbound <http://w w w.eff.org/IP/P2P/20020802 _eff_berman_p2p_bill.html>. A copy of the bill can be found at <http://frwebgate.access. gpo.gov/cgi-bin/getdoc.cgi?dbnam e=107_cong_bills&docid=f:h5211ih.txt.pdf> 58 Bill Sum m ary & Status for the 107th Congress, H.R. 5211 status <http://thom as.loc.gov/cgi-bin/bdquery/z?d107:HR05211:@@@X> 59 BBC New s <http://new s.bbc.co.uk/2/hi/technology/2502399.stm > Peter Biddle, Paul England, Marcus Peinado, and Bryan Willm an, The Darknet and the Future of Content Distribution <http://crypto.stanford.edu/DRM2002/darknet5.doc> 60 See glossary 61 See alt.2600.w arez new sgroup 62 – 65 See glossary 66 ‘Scientology, Google and the First Am endm ent’, San Jose M ercury N ews Editorial, 2 May 2002 <http://w w w.siliconvalley.com/mld/siliconvalley/business/columnists/ 3185788.htm >

FELIPE RO DRIQ UEZ

103

Google search archive. CoS typically requests removal of all content on a site, alleging ‘w holesale, verbatim copyright infringement’.67 O nce Google became aw are of the discrepancy betw een the alleged copyrighted w orks, and the actual copyrighted w orks, it quickly restored access to most of the blocked w ebsite. Harvard Law School researchers found at least one hundred sites m issing from search results w hen accessing Google sites m eant for French and Germ an users.68 Google does not include certain w ebsites in the French and Germ an versions of its search engines, in particular neo-Nazi or w hite suprem acy sites that have content that m ight be deem ed illegal to publish in France and Germ any. China in late August blocked access to the Google and altavista Internet search engines for a brief period 69 , diverting users to local Chinese search engines instead. A ctions a ga ins t O nline C ens ors hip – Routing a round C ens ors hip . O nline censorship is a technological battle. O nline censorship becom es m ore sophisticated every day, but so do the tools that circum vent filtering. Mirro ring. 70 Mirroring of inform ation is the oldest form of anti-censorship technology. When a w ebsite gets censored, people usually m obilize to copy the content of that site to dozens of other w ebsites around the w orld. There are m any exam ples of such m irroring in the short history of censorship on the Internet. Mirroring is an extrem ely effective technique against censorship, and also very easy to apply. The censor w ould have to block all the m irrors of a site to com pletely prevent access to the controversial inform ation. IP Ro tatio n. In 1995 the entire XS4ALL w ebsite, hosting thousands of users, w as blocked by Germ an Internet providers in an attem pt to block access to a radical m agazine on that site. The block consisted of a refusal by Germ an ISPs to route to 104

BURNING

THE

VILLAGE TO RO AST

THE

PIG

the IP address of the XS4ALL w ebsite. As a counterm easure XS4ALL em ployed an IP rotation m echanism that changed the IP address of the w ebsite every couple of m inutes.71 Triangle Boy. Safew eb, a company that received funding from In-Q -Tel, the CIA’s venture fund 72, released softw are called ‘Triangle Boy’. The softw are is a peer-to-peer application that volunteers dow nload onto their PCs. A user that has been denied access to any w ebsite by a censor can use the Triangle Boy softw are to circumvent the censorship.73 Currently the Triangle Boy softw are only provides access to the Voice of America, because this service is blocked by the Chinese Government. Peekabo o ty. ‘The goal of the Peekabooty Project is to create a product that can bypass the nation-w ide censorship of the World Wide Web practised by m any countries.’74 ‘Peekabooty uses a com plicated com m unications system to allow users to share inform ation w hile revealing little about their identity. When a node receives a request for a w eb page it random ly decides w hether to pass this on or access the page itself. It also only know s the address of its nearest partner. This m akes it difficult to determ ine w ho requested w hat inform ation and is designed to protect users from anyone trying to infiltrate the system from inside.’75 67 ‘Google Restores Church Links’, Wired N ews, 22 March 2002 <http://w w w.w ired.com /new s/ebiz/0,1272,51257,00.htm l> 68 See Jonathan Zittrain and Benjamin Edelman, Localized Google Search Result Exclusions. Statement of Issues and Call for Data <http://cyber.law.harvard.edu/filtering/google/> 69 ‘The Shrinking Frontiers’, O nline Journalism Review <http://w w w.ojr.org/ojr/w orld_reports/1037922526.php> 70 See glossary 71 Message from Felipe Rodriquez to Michael Schneider about censorship counterm easures <http://w w w.xs4all.nl/~felipe/WWW.old/press/schneider.htm l> 72 Safew eb Website <http://w w w.safew eb.com /investors.htm l> 73 Safew eb Website <http://w w w.safew eb.com /tboy_service.htm l> 74 About the Peekabooty Project see <http://w w w.peek-a-booty.org/pbhtm l/ m odules.php?nam e=Content&pa=show page&pid=1> 75 ‘Peekabooty Aim s to Banish Internet Censorship’, New Scientist, 19 February 2002 <http://w w w.new scientist.com /new s/new s.jsp?id=ns99991948>

FELIPE RO DRIQ UEZ

105

Peacefire.exe. ‘Peacefire.org w as created in August 1996 to represent the interests of people under 18 in the debate over freedom of speech on the Internet.’76 Peacefire created a Window s program , peacefire.exe that disables any popular Window s filtering censorw are such as SurfWatch, Cyber Patrol, CYBERsitter, Net Nanny, X-Stop, PureSight and Cyber Snoop. Internet Freedo m Act. O n 2 O ctober 2002, US House Policy Chairm an Christopher Cox and US House International Relations Com m ittee Ranking Mem ber Tom Lantos introduced legislation to counter Internet jam m ing and blocking around the w orld.77 When passed ‘the United States w ill develop and implement a comprehensive global strategy to combat state-sponsored and state-directed Internet jamming. The O ffice of Global Internet Freedom, established w ithin the International Broadcasting Bureau, w ill tap both private sector and government resources to help Internet users to avoid government censors and state persecution.’78 The bill w ill, if passed, provide 50 million US dollars to help softw are companies develop anti-censorship softw are.79 Camera Shy. ‘Cam era/Shy is the only steganographic80 tool that autom atically scans for and delivers decrypted content straight from the Web. It is a stand-alone, Internet Explorerbased brow ser that leaves no trace on the user’s system and has enhanced security.’81 Cam era Shy is an application that enables stealth com m unications. Softw are like this can be useful in countries w here e-m ail com m unications are regularly m onitored and censored, such as happens in China. Pro xy Relays. O ne of the easiest w ays to circum vent censorship is to use a relaying proxy server. Proxy servers are a technology that w as invented to speed up w eb traffic. It is an 106

BURNING

THE

VILLAGE TO RO AST

THE

PIG

interm ediate server cache betw een the user and the w eb server, and popular content is cached on these servers. By configuring a w eb brow ser to use a relaying proxy server, governm ent censorship system s can be bypassed.82 Akam ai83 can be used to bypass Internet censorship, and a description of how this can be done w as w ritten by Bennett Haselton.84 Many large corporations use Akam ai to optim ize their Internet traffic distribution, the w ebsites of these com panies can be accessed by creating a special URL that uses Akam ai as a relay server. This technique is in essence the sam e as using a proxy relay server for circum vention. He halted and, w ith bew ildered and horrified eyes, stared round him at the khaki m ob, in the m idst of w hich, overtopping it by a full head, he stood. ‘How m any goodly creatures are there here!’ The singing w ords m ocked him derisively. ‘How beauteous m ankind is! O brave new w orld …’ Aldous Huxley – Brave N ew World

Conclusions. The Internet is a reflection of the global society that w e live in. The anarchist cookbooks are there, and so are the holocaust revisionists and consum ers of bestiality. The availability of such content is a consequence of living in a global inform ation and com m unications environm ent. In a global 76 About Peacefire see <http://w w w.peacefire.org/info/about-peacefire.shtm l> 77 Bipartisan, Bicam eral Bill Stops Internet Jam m ing <http://policy.house.gov/htm l/new s_release.cfm ?id=111> 78 Bipartisan, Bicam eral Bill Stops Internet Jam m ing <http://policy.house.gov/htm l/new s_release.cfm ?id=111> 79 ‘China’s Cyberw all Nearly Com plete’, Wired N ews <http://w w w.w ired.com /new s/politics/0,1283,56195,00.htm l> 80 See glossary 81 Project Cam era Shy, sum m ary <http://sourceforge.net/projects/cam erashy/> 82 Relaying proxy servers, see <http://w w w.cexx.org/anticens.htm > 83 See <w w w.akam ai.com > 84 Bennett Haselton, Using Akamai to Bypass Internet Censorship <http://w w w.peacefire.org/bypass/Proxy/akam ai.htm l>

FELIPE RO DRIQ UEZ

107

environm ent effective online censorship can only be im plem ented in strongly repressive environm ents or in situations w here there is some form of global consensus and co-operation. Im plem enting any kind of online censorship is a technological battle, any censorship technology can, and w ill, be defeated. To get a feeling for the inventiveness of people in defeating technological restrictions one only has to look at the history of softw are piracy, w here com panies have em ployed increasingly sophisticated protection m echanism s, only to see them cracked w ithin days by skilled hackers. Im plem enting censorship has becom e a technological battle that cannot be w on, except in extrem ely repressive regim es. China has the m ost com prehensive censorship system and is having a degree of success w ith its im plem entation; this is being achieved by em ploying 30,000 people and using a m ix of technological and repressive instrum ents. It is not certain that China w ill be able to keep up this censorship fram ew ork in the next decade. Savvy Internet users in China are not affected by the censorship; they can use technological tools and solutions to circum vent it, although there is alw ays the risk of inform ers or active governm ent surveillance of their activities For a dem ocratic nation there are no sim ple solutions. No dem ocratic nation has com e close to sanitizing the Internet in order to uphold the local com m unity standards. The debate about content labelling rem ains just that: a debate. Despite EU investm ents and studies into content labelling technologies, there are no indications that the technology w ill provide us w ith a Holy Grail of online filtering. It is m ore likely that the online com m unity w ill ignore labelling technology, because there are no incentives to start using it. Som etim es the job of the politician consists of m anaging the perceptions of the electorate. From that point of view it is perhaps understandable that so m any proposals have been 108

BURNING

THE

VILLAGE TO RO AST

THE

PIG

m ade to sanitize the Internet. But im plem entation is another thing altogether, and m ost plans that aim to clean up the sm ut on the Internet are either technically unfeasible or they require a form of global consensus am ong users and publishers of content or need enorm ous resources. Despite years of debate about filtering offensive content on the Internet no actions have actually led to a changed environm ent in any of the dem ocratic nations. O dds are that this w ill rem ain so in the com ing decade. If there is consum er dem and for filtering, for exam ple to protect m inors, then com panies w ill jum p at this opportunity to provide products and services that m eet the dem and. Products are already available, and although none of them are perfect, at least having these products gives the consum er the autonom y of m aking the decision to censor him self and his fam ily. In any governm ent sanctioned censorship fram ew ork that choice is taken aw ay, w ith the likely side effect of censoring legal and uncontroversial content.

FELIPE RO DRIQ UEZ

109

Glo s s ary (Source Wikipedia, the Free encyclopedia, www.wikipedia.org)

Cache - A cache in com puter science is a short-term m em ory in a com puter w ith quick access. A cache is intended to speed up access to a set of data. The cache w ill be a piece of m em ory that is faster (hence m ore expensive, hence sm aller) than the principal data storage area for the data in question. The cache operates by storing a part of the data, allow ing that part to be accessed m ore quickly. A speed-up is achieved if m any accesses to the data can access the data in the cache. The reason caches w ork at all is that m any access patterns in typical com puter applications have locality of reference. There are several sorts of locality, but w e m ainly m ean that often the sam e data is accessed frequently or w ith accesses that are close together in tim e, or that data near to each other are accessed close together in tim e. Censo rw are - Censorw are is a term used to describe content filtering softw are by its opponents. They point out that content filtering softw are acts as an effective restraint on speech, and that governm ent-driven m andatory installation of content filtering softw are is equivalent to censorship. Censorw are is often proposed as a solution to the problem of hate speech on the Internet. O pponents of censorw are point out that these tools not only block other content in addition to hate speech, either unintentionally, or as part of the political agenda of the m anufacturers of the content filtering softw are, but also fail to block all the hate speech. Client - A Client is a system that accesses a (rem ote) service on another com puter by som e kind of netw ork. Co ngestio n - In telecom m unication, the term congestion has the follow ing m eanings: 1. In a com m unications sw itch, a state or condition that occurs w hen m ore subscribers attem pt sim ultaneously to access the sw itch than it is able to handle, even if unsaturated. 2. In a saturated com m unications system , the condition that occurs w hen an additional dem and for service occurs. D enial o f service attack - A denial of service (DoS) attack is a term used to describe certain form s of m alicious dam age to com puter system s. The aim of such an attack is to prevent legitim ate users from accessing their services. A DoS attack is generated in a num ber of w ays. There are three basic areas of attack - the consum ption of lim ited resources, such as bandw idth, disk space or CPU tim e; alterations to configuration inform ation, 110

G LO SSARY

such as routing inform ation or registry entries; and the physical disruption of netw orking com ponents. The attack on resources has becom e increasingly popular, m ainly through attem pts to ‘flood’ a netw ork w ith excess or spurious packet data over the Internet, thereby preventing legitim ate traffic. Distributed denial-of-service (DDoS), w here m any com puters w ork in unison to attack a target system , has also gained notoriety due to the efficient tools w hich are available to create and launch such an attack. D NS - the Dom ain Nam e System , is a distributed database that handles the m apping betw een host and ‘dom ain nam es’ w hich are m ore convenient for hum ans, and the num erical Internet addresses. That is, it acts m uch like a phone book, so you can ‘call’ w w w.w ikipedia.com instead of 64.78.205.6. FTP - The File Transfer Protocol, (FTP) is a protocol that is able to transfer files betw een m achines w ith w idely different operating system s. Gigabyte - A gigabyte is a unit of m easurem ent in com puters of approxim ately one thousand m illion bytes, (the sam e as one billion bytes in the Am erican usage) or roughly 1000 m egabytes. Go o gle - Google is an Internet search engine founded in 1998 by Larry Page and Sergey Brin, tw o Stanford Ph.D. candidates, w ho developed a technologically advanced m ethod for finding inform ation on the Internet. As of 2002, it w as the m ost popular search engine. Internet - As a proper noun, the Internet is the publicly available w orldw ide, interconnected system of com puters (plus the inform ation and services they provide and their users) that uses the TCP/IP suite of protocols. Thus, the largest internet in the w orld is called sim ply ‘the’ Internet. IP address - The Internet protocol (IP) know s each host by a num ber, the socalled IP address. O n any given netw ork, this num ber m ust be unique am ong all the hosts that com m unicate through this netw ork. ISP - Internet Service Provider (ISP), provider of Internet services. Most telecom m unications operators are ISPs. Provides services like Internet transit, dom ain nam e registration and hosting, dial-up access, leased line access and colocation. Kazaa - KaZaA Media Desktop is a peer-to-peer file sharing application on the Music City netw ork, developed by FastTrack for Consum er Em pow erm ent. It is very sim ilar to Morpheus, w hich also used the FastTrack protocol. Many consider KaZaA to be superior to other program s because of its file selection and fast transfer speeds. Countering that is KaZaA’s use of spyw are and adw are installed as default w ith the m ain product. The Altnet softw are, also installed by default, is another problem , it allocates users’ bandw idth to serve advertisem ents to others. G LO SSARY

111

Mirro r - O n the Internet, a mirror is an exact copy of data stored in a different location. Popular sites use mirrors to reduce netw ork traffic on any one server. Mo rpheus - Morpheus is also the nam e of a file sharing client operated by the com pany Stream cast (form erly called Musiccity) that originally used the O penNAP peer-to-peer platform . It has a w eb-based search interface, just like Audiogalaxy, though Morpheus searches all kinds of m edia, not just mp3. In 2001, Morpheus changed protocol from O penNAP to FastTrack. O n 26 February 2002, all Morpheus clients suddenly stopped w orking w hen the FastTrack protocol w as updated and Morpheus users no longer w ere allow ed to log into the netw ork. This w as apparently because of licensing disputes betw een Stream Cast and the ow ners of FastTrack. O n 2 March, a new Morpheus client using Gnutella as its P2P m edium w as released. Napster - Created by Shaw n Fanning, Napster w as a m usic and file sharing service that m ade a m ajor im pact on the Internet scene during the year 2000. Its technology allow ed m usic fans to easily share MP3 form at song files w ith each other, thus leading to m assive copyright violations. New sgro up - A n ew sgroup is a repository w ith in th e Usen et system for m essages posted from m an y users at differen t location s. New sgroups are arran ged in to h ierarch ies, th eoretically m akin g it sim pler to fin d related groups. NGO - A Non-Governm ental O rganization (NGO ) is an organization w hich is privately funded (m ostly by donations from the general public) and is independent from the governm ent and its policies. Most often it is a nonprofit organization. NNTP - Netw ork New s Transport Protocol. A TCP-IP protocol based upon text strings sent over 7 bit ASCII TCP channels. It is used to transfer articles betw een servers as w ell as to read and post articles. Defined in RFC 977. The form at of m essages is specified by RFC 1036. O peratio n Clambake - O peration Clam bake is the title of a World Wide Web page that has becom e know n as the single m ost im portant site w ith inform ation about Scientology. It is run by Andreas Heldal-Lund, a critic of Scientology w ho view s the organization as a cult. The w ebsite provides considerable insight into the w orkings of Scientology, and it includes links to Scientology’s ‘secret’ docum ents as w ell as other inform ation that the organization has tried to suppress. The w ebsite is one of the focus points of the w ar betw een Scientology and the Internet. Scientology had m ade num erous legal threats to various Internet service providers that have hosted the site, dem anding that it be rem oved from the Internet. In various incidents that have been docum ented in such publications as the N ew York Times, Slashdot and Wired O nline, Scientology has also used copyright law to force notable w ebsites (including the Google search engine) to rem ove all references to the O peration Clam bake site. 112

G LO SSARY

Peer-to -peer - As opposed to non-peer or client-server. Peer-to-peer describes a symmetric protocol, application, or netw ork w here every node has equivalent capabilities and privileges. Any node is able to initiate or com plete any supported transaction. Peer nodes m ay differ in local configuration, processing speed, netw ork bandw idth, and storage quantity. A protocol can be categorized as peer (sym m etric), non-peer (asym m etric, usually clientserver), or both. Consider the Usenet new s service. Usenet new s servers are NNTP peers am ong them selves, but NNTP servers to Usenet new sreaders. Usenet new sreaders are NNTP clients to the Usenet servers but do not comm unicate w ith other Usenet clients directly. Usenet clients and servers im plem ent only the portions of NNTP that are needed for their purpose. PICS - Platform for In tern et Con ten t Selection ; Th e PICS specification enables labels (m etadata) to be associated w ith Internet content. It w as origin ally design ed to h elp paren ts an d teach ers con trol w h at ch ildren access on the Internet, but it also facilitates other uses for labels, including code signing and privacy. Sciento lo gy - Scientology is a controversial system of beliefs and teachings, begun in 1952 by author L. Ron Hubbard, and presented as a religion. It w as first incorporated in the US as a non-profit organization in 1954, and is considered to be a religious non-profit organization under the tax code adm inistered by the Internal Revenue Service. It is not a recognized religion in m any countries, and in som e countries, notably Germ any, it is officially seen as a dangerous practice. Search Engine - A search engine is a program designed to help the user access files stored on a com puter, for exam ple on the World Wide Web, by allow ing the user to ask for docum ents m eeting certain criteria (typically those containing a given w ord or phrase) and retrieving files that m atch those criteria. Unlike an index docum ent that organizes files in a predeterm ined w ay, a search engine looks for files only after the user has entered search criteria. In the context of the Internet, search engines usually refer to the World Wide Web and not other protocols or areas. Because the data collection is autom ated, they are distinguished from Web directories, w hich are m aintained by people. So ftw are cracking - Softw are crackin g is softw are h ackin g in order to rem ove en coded copyrigh t protection . D istribution of cracked softw are (w arez) is gen erally an illegal (or m ore recen tly, crim in al) act of copyrigh t in frin gem en t. SMS - Short Message Service (SMS) is a service m ade available on m ost digital m obile phones that perm its the sending of short m essages (also know n as text m essages) betw een m obile phones. SMS w as originally designed as part of the GSM digital m obile phone standard, but is now available on a w ide range of netw orks, including forthcom ing 3G netw orks. G LO SSARY

113

So ftw are-patch - A softw are release is to create a new version of the system or program and release it to the user com m unity. Each tim e a softw are system or program is changed, the program m ers and com pany doing the w ork decide how to distribute the changes or the changed system or program to those people using it. A softw are patch is a m ethod of distributing the changes. It is either a program that m odifies the original unchanged system or program to create the new one or a list of instructions for a person w ho follow s them to create a new one. So ftw are-piracy - The term softw are piracy refers to copyright violation for profit, i.e. the unauthorized selling of counterfeit com puter softw are, m usic, m ovies etc. The copying of softw are, m usic and film s w here no m oney changes hands, som etim es know n as w arez, is legal in som e jurisdictions. In Russia, it is legal to copy any softw are as long as it is not in the Russian language. Stegano graphy - Steganography is the science of w riting hidden m essages, w here ‘hidden’ m eans not only that the m essage cannot be read by anyone other than the intended recipient, but also that no one else even know s that a m essage has been sent. Generally a steganographic m essage w ill appear to be som ething else, like a shopping list, an article, a picture, or som e other ‘cover’ m essage. Spamming - Spam m ing is the process of sending unw anted electronic m essages. The m ost com m on form of spam is Unsolicited Com m ercial Em ail (UCE) or Unsolicited Bulk Em ail (UBE), the electronic form of junk m ail. A spam m er w ill send identical or nearly identical m essages to a large num ber of e-m ail addresses, often harvested from Usenet postings or w eb pages, or obtained from databases, w ithout the perm ission of the recipients. Streaming media - Stream ing m edia is a term that describes ‘just in tim e’ delivery of m ultim edia inform ation. It’s typically applied to com pressed m ultim edia form ats delivered over the Internet. The Web - The World Wide Web (‘the Web’ or ‘WWW’ for short) is a hypertext system that operates over the Internet. To view the information, one uses a piece of softw are called a w eb brow ser to retrieve pieces of information (called ‘documents’ or ‘w eb pages’) from w eb servers (or ‘sites’) and display them on the user’s screen. The user can then follow hyperlinks on the page to other documents or even send information back to the server to interact w ith it. The act of follow ing hyperlinks is often called ‘surfing’ the Web. Traffic - The inform ation m oved over a com m unication channel. URL - A Uniform Resource Locator, or URL, is a standardized address for som e resource (such as a docum ent or im age) on the Internet. First created by Tim Berners-Lee for use on the World Wide Web, the currently used form s are detailed by IETF standard RFC 2396 (1998). 114

G LO SSARY

Usenet - Usenet (also know n as Netnew s) is a set of protocols for generating, storing and retrieving new s â&#x20AC;&#x2DC;articlesâ&#x20AC;&#x2122; (w hich resem ble m ail m essages) and for exchanging them am ongst a readership w hich is potentially w idely distributed. It is organized around new sgroups, w ith each new sgroup carrying articles about a specific topic. Readers see all the articles posted to each new sgroup in w hich they participate. These protocols m ost com m only use a flooding algorithm w hich propagates copies throughout a netw ork of participating servers. Typically, only one copy is stored per server, and each server m akes it available on dem and to readers able to access that server. Usenet w as thus one of the first peer-to-peer applications. Webcam - A w ebcam is a sm all digital cam era attached to any com puter that is connected to the Internet. It is m ainly used to take pictures and m ake short film s of the surrounding area or the cam eraâ&#x20AC;&#x2122;s ow ner and post them in (alm ost) real tim e to the World Wide Web. O ther uses m ight include chatting, security, and video conferences over the Internet. Web Lo g - A w eb log (also know n as a blog) is a w ebsite that tracks headlines and articles from other w ebsites. They are frequently m aintained by volunteers and are typically devoted to a specific audience or topic.

G LO SSARY

115

The A utho rs Freimut D uve, a Germ an politician, hum an rights activist, w riter and journalist, w as elected the O SCE Representative on Freedom of the Media by the O SCE Ministerial Council in Decem ber 1997. Duve w as born in 1936 in Würzburg and received his education in Modern History, Sociology, Political Science and English Literature at the University of Ham burg. He w orked as an editor at the Row ohlt publishing house and w as a Social Dem ocratic m em ber of the Bundestag (Germ an Parliam ent) from 1980 to 1998, representing his city, Ham burg. Jennifer Jenkins is the Interim Director of the Center for the Public Dom ain at Duke University, USA, and is a specialist in intellectual property rights w ho received her J.D. and M.A. in English from Duke. She w as one of the law yers involved in defending the publication of the novel The Wind Done Gone in Suntrust v. Houghton Mifflin, and in a variety of other intellectual property cases. She is also a film m aker and m usician. Her video on appropriation and intellectual property, N uestra Hernandez, w as show n at the New York University conference ‘A Free Inform ation Ecology in the Digital Environm ent’ and at the Duke University ‘Conference on the Public Dom ain’. Verena Metze-Mango ld, Ph.D ., is Head of the Co-ordination Departm ent of the Hessischer Rundfunk, Frankfurt and Vice-president of the Germ an UNESCO Com m ission. She studied Political Science, Sociology and History at the University of Marburg and graduated w ith honours. She has journalistic experience in broadcasting and in print m edia and w as head of the Protestant Medienakadem ie, Frankfurt, (1976-1987) and of the Com m unications Departm ent of the Public Broadcasting Station, Frankfurt. Ms. Metze-Mangold represented the Germ an Governm ent at the advisory conference on the South African Constitution, w here she presented m odels of freedom of inform ation acts and a broadcasting law, as w ell as at the Stability Pact Conference on m edia developm ent in Eastern and South-Eastern Europe in May 2001. She is the author and editor of several books and num erous articles on international m edia developm ent. Felipe Ro driquez founded the first Dutch Internet service provider XS4ALL in 1993, and acted as its CEO until 1997. In his role as CEO , Mr. Rodriquez w as involved in a num ber of high profile disputes concerning Internet politics. He w orked together w ith the Belgrade-based radio station B92 to broadcast its radio signal live on the Internet after it w as censored by the Milosevic regim e. He co-founded the Am sterdam Digital City Netw ork in 1994. In 1995, he created the Dutch ISP Association and chaired it until 1997. In 1996 he conceived the first Internet hotline (w w w.m eldpunt.org) to com bat the distribution of child pornography on the Internet. He is currently a m em ber of the boards of various organizations and com panies. 116

T HE AUTHO RS

Karin Spaink is a freelance w riter w ho has published eight books and hundreds of articles and colum ns. Her m ain subjects are politics, health, inform ation technology, and language. She started w riting about civil rights and the Internet in 1995. She chaired Contrast.org, an organization providing asylum for sites banned elsew here, and is currently chairing Bits of Freedom (w w w.bof.nl), the m ain organization for civil rights online in the Netherlands. She is also a juror for the Dutch Big Brother Aw ards. Internationally, she is best know n for her ongoing legal case w ith Scientology, a battle that has in part to do w ith copyrights but m ostly w ith freedom of speech. Hom epage: <w w w.spaink.net> Sandy Starr (Sandy.Starr@spiked-online.com ) is public relations officer at the online current affairs publication spiked (w w w.spiked-online.com), and co-ordinates spiked’s analysis of inform ation technology issues. He is also a m em ber of the UK & Ireland Working Group of RightsWatch (w w w.rightsw atch.com ), a European Commission research project w hich investigates copyright regulation. He w rites for publications ranging from the Times Literary Supplement to The Sun new spaper, and is a contributor to the book The Internet: Brave New World? Páll Thó rhallsso n is a legal officer in the Council of Europe’s Directorate General of Hum an Rights. He is the Secretary to the Group of Specialists on online services and dem ocracy. Before joining the Council of Europe, Mr. Thórhallsson w orked as a journalist and law yer in Iceland. In 1998, he graduated from Strasbourg University, France, w ith a DEA in com parative hum an rights law. He has published several articles on legal m atters in Icelandic journals.

T HE AUTHO RS

117

Karin Spaink Verena M etze-M angold P谩ll Th贸rhallsson Sandy Starr Jennifer Jenkins Felipe Rodriquez w w w .osce.org /f om