The document looks at the extent to which “voluntary” law enforcement measures by online companies are serving to undermine long-established fundamental rights principles and much of the democratic value of the internet.
Unquestionably, the successful campaigns against SOPA and ACTA demonstrate the democratic potential of the internet. Sharing of information over social media, online blackout protests, etc., all generated a synergy which led to big demonstrations against the measures and their rejection or abandonment.
But what happened then? This booklet looks into, for example, what happened to SOPA’s encouragement of all relevant internet companies to police and punish alleged infringements of US law outside US borders. What happened after democratically-elected representatives decided not to ratify the measure? It may come as a surprise, but every single type of internet company listed in SOPA Section 104 either already had, or has since, reached agreements with the White House or between industry sectors, to undertake lawless, vigilante measures. Democracy disappears.
It then assesses the impact of “voluntary” law enforcement on legal protections for our fundamental rights. Constitutions and international law provide us with a degree of protection from government restrictions of our fundamental freedoms. However, when private companies are persuaded to “voluntarily” impose such restrictions outside a legal framework, these traditional and previously unquestioned protections disappear. Disturbingly, instead of acting to minimise this damage, international organisations are sometimes acting to undermine their own legal frameworks and previously unquestioned principles. Law disappears.
The most egregious example of this is the United Nations Office of Drugs and Crime, which adopted a report in December 2012 that appears to be an unequivocal demand for UN Member States to breach the UN’s own International Covenant on Civil and Political Rights. The report calls on Member States to obtain communications data from foreign companies using “informal arrangements” (in apparent breach of Article 17.1 of the ICCPR). The report also praises the UK’s “informal arrangements” for removal of websites, using ISPs’ terms of service rather than laws, in breach of Article 19 of the same UN Covenant.
The final section of the report looks at some of the tactics used by governments to persuade internet companies to invest in such activities. It also looks at some principles that need to be followed in order to try to draw a line between productive and effective measures to achieve public policy goals and measures which are anti-competitive, would undermine fundamental rights and which are contrary to the spirit of international law and national constitutions.