CleanIT looking for the question that it was seeking an answer to
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Deutsch: CleanIT oder Wie war noch mal die Frage?
Few people know that CleanIT was born from another failed project – the European Commission-led “dialogue on illegal online content”. In that “dialogue”, the European Commission (DG HOME) sought to persuade Internet hosting companies to delete websites containing alleged hate speech, terrorist content and child abuse material “more quickly”.
During a year and a half of discussion, the Commission was unable to identify any instances of websites being left online for an unacceptably long period of time, nor any evidence that current practices were not functioning efficiently. Ultimately, the project failed because: a. the problem it was trying to solve was never identified; b. no safeguards were foreseen to protect free speech in cases of incorrect accusations; and c. it had no specific targets.
After the failure of the Commission project, 400 000 Euro was given to the CleanIT initiative in order to address one of the three issues – terrorism. The suggestion was that unspecified technology companies could take action against unspecified problems in order to address undefined “terrorist use of the Internet”. Unsurprisingly, due to the lack of focus of the project, the first year of “work” had only produced a 23-page list of sometimes extreme, sometimes illegal and always unfocussed suggestions of things that could, theoretically, be done to address the unspecified problems the project was set up to solve. After that 23-page list was made available to the public by EDRi, many (but not all) of its excesses were removed, ahead of the second-last CleanIT meeting, which took place recently in Vienna.
In the Vienna discussion, it was argued that there were adequate mentions of fundamental rights and proportionality. The only small problem with that view is that the whole point of a legal system is that it is for the courts to decide when laws respect fundamental rights and are proportionate. The whole point of CleanIT is, in contrast, that it would work on the basis of “voluntary” actions taken outside the rule of law by internet companies – often by companies that are not even European. Ironically, while the CleanIT project proudly proclaims that its purpose is to create “a public-private partnership where a non-legislative framework will be developed,” it was argued in Vienna that this framework was not intended to circumvent the law.
After the Vienna meeting, only 16 months after its launch, the project reached approximately the point that it was at when it started. In the absence of an identified problem, what can ISPs do in order to act efficiently if they feel that somebody is communicating in a way that they do not feel happy with? How can terms of service be written in a way that is vague enough to allow ISPs to do take arbitrary action against subscribers, if this seems appropriate? In other words, how can ISPs do, with regard to terrorism, what SOPA and ACTA proposed doing with regard to copyright infringement – undermine and circumvent the rule of law, the presumption of innocence and due process of law?
In the meantime, the United Nations has publicly asked Member States and Internet companies to breach international law as a means of enforcing the law. The UNODC called for states to enter into “informal relationships or understandings with ISPs (both domestic and foreign) that might hold data relevant for law enforcement purposes about procedures for making such data available for law enforcement investigations.” This unequivocally contradicts the International Covenant on Civil and Political Rights, which states that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”
In summary, CleanIT has worked out that somebody should definitely do something about some forms of terrorist (however it is defined) use of the Internet. We look forward with trepidation to the next document to come out of this project.
Swiss Pirate Party support for CleanIT
(Contribution by Joe McNamee - EDRi)