CleanIT looking for the question that it was seeking an answer to

By EDRi · November 21, 2012

This article is also available in:
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.

CleanIT leak

UNODC’s report

UN Agencies: A growing threat for the Internet?

Swiss Pirate Party support for CleanIT



(Contribution by Joe McNamee – EDRi)