By EDRi

cybercensor

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Support of a single Internet without restrictions and accessible to all is the message of this year’s world day against cyber-censorship. For the fourth time, Reporters without Borders (RSF) has published a report listing the worst violators of online free speech worldwide.

In the following, we want to focus on the top 5 threats to free speech – and on the top 5 positive developments in Europe. In the past few years several EU member states have introduced worrying policies that undermine the openness of the Internet, such as online censorship, surveillance measures,
(voluntary) website blocking
or the adoption of repressive Internet laws.
RSF lists France as one of “countries under surveillance”.

The Internet has become increasingly important for all kinds of protest, from the Arab spring to the off- and online demonstrations in the US and over 200 different European cities against misguided proposals such as PIPA, SOPA and ACTA.

Top 5 threats to free speech in Europe

1. Website Blocking in Europe

In many European countries, technical censorship methods,
such as website blocking and filtering, are being used on a voluntary basis, whether outside the rule of law, or introduced by governments via legislative measures.

Several advocacy groups defending citizen’s fundamental rights on the Internet have been victims of blocking schemes.
In Finland, for instance, a lawsuit by a rightsholder group has resulted in a court order for the local ISP to block
The Pirate Bay in October 2011. The decision has already caused collateral damage and led to the blocking of EDRi member Electronic Frontier Finland (EFFI). In February 2012, Open Rights Group
UK reported
that Orange was filtering access to French advocacy group La Quadrature du Net, which is defending citizen’s fundamental rights on the Internet.

In Denmark, a blacklist operated for the purpose of child pornography filtering , recently led to the blocking of 8000 websites, including Google and Facebook, …by accident.
In 2007, a Privacy International survey of global surveillance activity characterised Denmark as the only Nordic country that is an “extensive surveillance society”.

2. Voluntary measures and privatised law enforcement

Possibly due to the frequent failures of punitive measures, many current legislative proposals have started shifting from
ex-post enforcement to ex-ante preventative models, which are based on the surveillance and filtering of Internet user activity and coerce online economic operators to police the Internet.

The European Commission is leading the way regarding “voluntary” enforcement. These is normally done in the shape of “dialogues” that were used to promote
mass filtering of networks by ISPs; “voluntary” deletion of websites;
funding for “self-regulatory” blocking of
websites accused of containing illegal content and filtering of mobile Internet access with European GSM Operators.

Last year, European Digital Rights published a study on the scale of measures being undertaken to outsource policing activities to private companies in the Internet environment and its significance for fundamental rights, transparency and the open Internet.

3. US authorities domain seizures in the name of fighting copyright infringements

Extraterritorial domain name seizures have been going on now for at least three years. US Immigration and Customs Enforcement agency (ICE) is regularly carrying out unilateral measures against European websites, claiming worldwide jurisdiction for domain names run by US companies.
Last week, ICE spokesperson Nicole Navas admitted that the government has seized approximately 750 domains this way.

This approach destroys legal certainty for online services. In 2008, several websites of a Spanish travel agency suddenly stopped working even though the company was never accused of breaking the law in Spain. The registrar of the domain name, which is an American company, voluntarily disabled the domain names because the Spanish company was providing travel services to Cuba.
More recently, the .org domain name of the Spanish streaming
service Rojadirecta, which was found to be operating legally by two Spanish courts, was unilaterally revoked. And only last week, the domain of the gambling website bodog.com, which was registered with a Canadian registrar,
was seized by US authorities – without any intervention from Canadian authorities. The US government has made its position crystal clear now: if your domain ends in .com, .net, .cc, .tv and .name, it is potentially seizable.

4. Legislative proposals and international agreements: SOPA, PIPA, ACTA

There are also attempts to provide a legal basis for all of the above mentioned threats:
The legislative proposals in the US Stop Online Piracy Act (SOPA), PIPA (Protect IP Act) and the international agreement
ACTA all aim at the promotion of voluntary measures, such as website blocking and pro-active policing of the Internet.

While SOPA and PIPA’s broad definitions could be interpreted in a way that would mean that no online resource in the
global Internet would be outside US jurisdiction, the Anti Counterfeiting Trade Agreement obliges states to push intermediaries to implement voluntary measures, promoting online policing of copyright by Internet providers. Even if the US bills in their original forms are “dead” and some newspapers and politicians have even written off ACTA as such, the fact remains that the proposals are merely on hold and that the push for repressive measures is still pretty much alive. These attempts to introduce access restrictions are an experiment with key functions of the Internet, increasing the risk of fragmentation of the global Internet.

5. European Commission’s “Safer Internet” proposals

Last but not least of the top 5 threats is the not yet widely known “Safer Internet Coalition”, initiated by the European Commission, bringing together major players of the ICT sector. Part of this coalition of the willing are service providers, comprising 38 companies, including Vodafone, Deutsche Telekom and British Telekom (also known as Europe’s biggest Net neutrality enemies), Blackberry manufacturer RIM (known for its cooperation with repressive regimes), KPN (known for its use of DPI in the Netherlands), Nintendo and Microsoft. These are the companies that have gained the trust of the European Commission in order to discuss ‘cooperative voluntary interventions’ such as content classification, filtering and censorship tools in the name of child protection. In a recent meeting, the coalition discussed the possibility to install Microsoft’s photoDNA
to monitor the contents of end-users’ computers.

Top 5 positive developments for net freedoms in Europe

1. European Anti-ACTA protests

On the cold afternoon of 11 February 2012, hundreds of thousands of citizens from an estimated 200 cities in Europe went out in the streets in a massive pan-European protest against ACTA and to support digital civil rights.

The ACTA protests, as a continuation of protests against the US proposals SOPA/PIPA, are yet another expression of the new understanding and prioritisation of net freedoms.
The on- and offline protests were hugely successful, putting SOPA/PIPA/ACTA on hold.

The large majority of people that went out on the streets are part of a generation that grew up with the Internet, meaning they no longer feel like passive recipients of content. They are increasingly concerned by failed repressive measures, by needless and dangerous experiments that threaten the openness of the Internet.

2. Court Rulings: Scarlet/Sabam and Netlog/Sabam

Two recent rulings by the European Court of Justice (CJEU) have set new precedents to better protect fundamental rights on the Internet. In the Scarlet / Sabam case, the CJEU declared that the level of filtering and blocking asked for in the case was too broad, that the legitimate interests of society as a whole outweighed the other interests at stake and that the unlimited and open-ended nature of the blocking was excessive. The alternative would have lead to the permanent surveillance
and filtering of all European networks. In February 2012, the CJEU has also released a new decision on the legality of filtering
systems on the Internet, this time with regard to filtering of content stored on hosting services, it has ruled that a social network “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work”.

Twice in a just a few months, the CJEU has underlined the importance of an open and free Internet and the respect for fundamental freedoms, such as freedom of communication, the right to privacy and the freedom to conduct business.

3. Net neutrality

In recent years, the importance of Net neutrality has gained wider acceptance. In 2011, discussions took place in the European Parliament, which voted for a strong resolution in favour of Net neutrality. Dutch law makers have decided to make the Netherlands the first nation in Europe to officially put net
neutrality principles into law. The French Parliament has also issued a positive report to enshrine Net neutrality as a policy objective and included a strong stance against content blocking.

However, much needs still to be done in order to enshrine Net neutrality into European legislation. Many politicians still do not see the dangers of creating legal incentives for ISPs to invest in monitoring and filtering/blocking technology for law enforcement purposes (see point 2 of top threats) while demanding that ISPs refrain from using this technology for their own business interests/competitive reasons.

4. Citizen Initiatives

New forms of citizen projects and clusters have started to emerge, such as Telecomix and WeRebuild.
These groups fight for free speech and Internet freedoms in countries that are heavily censoring communications, for example in Syria and during the Egyptian uprising.

The importance of the voice of citizens on net freedoms has not been lost on the European Commission.
The European Commission’s Vice President Reding has announced
during CeBIT that the “Internet community” needs to be brought more into the decision-making process in Europe.
Also, Vice-President Kroes has recently initiated the so-called “no-disconnect strategy” to improve Internet freedom around the world.

5. Mandatory EU-wide web blocking stopped

Last year, the German blocking law was finally repealed and we successfully campaigned against mandatory blocking in the European institutions.

In December 2011, Germany’s blocking law was repealed – after it was agreed that blocking is inefficient for its initial purpose of fighting child pornography and after being strongly opposed by freedom activists. According to many experts, the only efficient method is deleting content, while blocking is ineffective, counter-productive and represented the beginning of Internet censorship.

The European Commission considered a proposal to introduce mandatory filters for blocking of child abuse websites.
The original idea was thus to force member states to block illegal content. The European Parliament however rejected rejected this measure and introduced additional safeguards for the blocking that is in place already in some EU member states.