Digital Civil Rights in Europe

Published in EDRi-gram 8.18

Within the next ten weeks, the European Parliament will finish its crucial first reading of the Directive which, if the European Commission has its way, will impose an EU-wide blocking infrastructure – undermining child protection, fundamental rights and the EU’s voice on freedom and democracy in the world.

The measure proposed is quite interesting. The text reads as follows: “Member States shall take the necessary measures to obtain the blocking of access by Internet users in their territory to Internet pages containing or disseminating child pornography. The blocking of access shall be subject to adequate safeguards, in particular to ensure that the blocking is limited to what is necessary, that users are informed of the reason for the blocking and that content providers, as far as possible, are informed of the possibility of challenging it.”

The first point to note is that it proposes an undefined approach and not any form of minimum standard. Any technology that could possibly follow under the dictionary definition of blocking, no matter how technologically flawed, no matter how out of date, no matter how damaging to networks would be acceptable. The Commission simultaneously feels that the problem is so urgent that blocking must be proposed, yet the problem is so unimportant that any deficient or out of date technology is perfectly fine. The supporters of blocking have been very curiously and very completely silent on this point.

The “safeguards” are also of limited value. Ensuring the blocking is limited to what a Member State considers “necessary” means little, with countries like France planning to block sites accused of intellectual property infringement and Denmark blocking (and thereby boosting traffic by 12%) the Pirate Bay website. Informing the users about the reasons for the block is not a safeguard, it is a very limited exercise in transparency. Finally, a provision whereby the owners of websites depicting serious crimes against children are politely informed that their website is the subject of a weak, inadequate blocking system is not a safeguard – unless you are the grateful criminal being given this valuable information.

So far, many Members of the European Parliament have been convinced that blocking is an undesirable option. Unfortunately, however mantras being repeated by a powerful alliance of businesses, Commission-funded NGOs and the Commission itself are having an effect on parliamentarians. As a result, the most likely outcome at the moment is a “compromise” that would say blocking should be a last resort, once everything else has been tried. So, an obligation would be imposed on Member States to build a blocking infrastructure, with the request that they not use it, if possible.

Three messages are being pushed particularly hard:

1. This proposal is only about child abuse images, it will not spread into other policy areas. This message is being pushed even though the Commission itself is offering funding for blocking of other material, even though the Council of Ministers has adopted a text supporting blocking to protect national gambling monopolies and even though blocking is spreading into other fields in countries such as Belgium (gambling), Bulgaria (gambling), France (gambling and intellectual property), Italy (gambling, intellectual property, free online advertising, defamation, cigarette import, steroid advice) and Lithuania (gambling).

2. Blocking “works in some cases”. In no case can leaving a child abuse website online be considered “working”. In no case can leaving criminals unpunished and victims unprotected be considered working. Yet, somehow, the impression is being created that the abuse websites are somehow just a nuisance that will disappear if we can only persuade the whole continent to look away.

3. Blocking “stops accidental access,” yet it has proven completely impossible for the European Commission to produce evidence from the Internet hotlines that it funds (on condition that statistics are produced!) showing that there are any fewer complaints about illegal content being found online in countries with blocking compared with those without blocking. In any event, with only approximately one person in every three thousand reporting illegal content, the numbers involved are miniscule.

Unless something is done now, in a few short years, blocking will have sapped the political motivation to take real measures to fight online child abuse. The powerful intellectual property lobby and national gambling monopolies have had blocking installed for their interests. The “self-regulatory” blocking so enthusiastically supported by the Commission will be used by the tabloid media to pressure Internet Service Providers to block whatever takes their fancy (as can be seen in the USA from the Craigslist case and the case where T-Mobile allegedly blocked text messages for a legal medicinal marijuana supplier). One would almost feel sorry for the Commission in years to come when it tries to explain to China or Iran or Turkey they are placing too many restrictions on the use of the Internet.

The reason why blocking is never the answer is that “blocking” leaves the website online – it doesn’t block the website at all, it takes down the signpost, while leaving infinite numbers of roads to the blocked site open. It leaves the illegal site easily accessible for anyone who wants to see it. It does nothing to investigate the criminals or the users of the site, it does nothing to identify and rescue the victims. All it could conceivably do is stop accidental access and nobody has been able to show that this is a problem that would require a blocking infrastructure to be developed, which anyway can be (and already is in several countries) misused for less important issues, such as protecting national gambling monopolies. Only about one person in every three thousand , in any one year, reports illegal child abuse material to a national hotline – the argument that blocking is necessary as a short term solution to prevent accidental access while websites are being taken offline simply bears no relationship with reality.

The time is now to protect the Open Internet in Europe. The time is now to contact parliamentarians and persuade them not to make possibly the biggest mistake in the history of the Internet in Europe and the world.

EDRi’s blocking booklet
http://www.edri.org/files/blocking_booklet.pdf German Version
http://www.edri.org/files/Booklet_dt_final.pdf

T-Mobile sued for allegedly blocking pot-related texting (18.09.2010)
http://news.cnet.com/8301-13578_3-20016908-38.html

Censoring Craigslist (8.09.2010)
http://blog.indexoncensorship.org/2010/09/08/censorship-craigslist/

European Commission funding proposal
http://bit.ly/ckWv9F

Proposal for a Directive of the European Parliament and of the Council on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA
http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!…

“Impact assessment”: Accompanying document to the Proposal for a Council Framework Decision on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA – Impact assessment {COM(2009)135} {SEC(2009)356
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009SC035…

Commission official explains the Commission’s research
http://www.youtube.com/watch?v=EpFpoXIdRQc

Cybercriminals thank Commissioner Malmström
http://www.cybercriminalsociety.eu/index.php

(Contribution by Joe McNamee – EDRi)

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