Rule of law in the hands of private companies.Wikileaks is just the start.

By EDRi · December 15, 2010

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Deutsch: [Das Prinzip der Rechtsstaatlichkeit in den Händen der Privatwirtschaft: WikiLeaks ist erst der Anfang |]

Private-sector attempts to undermine and attack the ability of WikiLeaks to
function on the Internet have attracted much attention. Their domain name
( was was taken out of service by EveryDNS, their ability to
collect funds was restricted by Paypal, Visa and Mastercard while Amazon
deleted their website. When did we abandon the rule of law and replace it
with summary justice meted out by private companies? How does it happen that
private companies can punish a website that has never been convicted of a
crime? Why would they do this?

The truth is that there have been years of “behind-the-scenes” efforts by
(mostly western) governments to persuade, reward or coerce Internet
companies into developing censorship structures. Under the harmless-sounding
flag of “self-regulation,” and demands that Internet providers take more
responsibility for illegal online activity, a comprehensive infrastructure
is being put in place. The purpose of this infrastructure is to hand over
quasi-judicial responsibilities to private companies, which, less bound by
the obligations imposed on courts, impose summary justice on those accused
of illegal activity online. This action can be to have payments being
blocked by payment providers, websites deleted and Internet traffic filtered
by Internet providers, slowly and imperceptibly eroding the rule of law.
While western governments must respect their constitutions, life becomes
much simpler when private companies can take extra-judicial action against
uncomfortable online information.

Even before WikiLeaks had been heard of by anyone in Europe except geeks,
the European Commission had launched proposals for European web hosting
companies to take extra-judicial action to delete websites without judicial
authority (helpfully suggesting that they give themselves licence to do so
in their terms of service), online trading platforms to ban people accused
of counterfeiting from online trade, Internet access providers to filter
peer to peer traffic in order to delete anything that might not be
authorised by copyright owners and mobile phone companies to block alleged
illegal content from their networks.

This is not just a European phenomenon. The EU negotiated the
Anti-Counterfeiting Trade Agreement with countries around the world. This
agreement suggests extra-judicial “cooperation” between Internet providers
and copyright owners to police and punish alleged infringements. The
Organisation for Economic Cooperation and Development has launched a major
project on the role of Internet intermediaries in “achieving public policy
objectives”. The Organisation for Security and Cooperation in Europe
actively welcomes an approach where the only punishment for the publication
of racist material online is the extra-judicial deletion of the websites
containing the material. The list goes on.

Unfortunately, this trend for governments to outsource regulation of the
Internet is happening at a moment when Internet companies are increasingly
open to such requests. Companies like Virgin and Deutsche Telekom/T-Mobile
are campaigning for the right to interfere in Internet traffic for their own
commercial purposes. Virgin has announced plans to implement technology to
open every packet of data sent to or received from its consumers in order to
police possible copyright infringements, which would undermine its music
business. Deutsche Telekom has also signaled its intention to restrict
access of its customers to high-bandwidth sites. Earlier this year, its CEO
reportedly demanded that Google be required to pay for the bandwidth used to
access its services.

The increasing willingness of the largest Internet providers to interfere
with their customers’ traffic for business purposes obviously creates
dangers for competition, innovation and free speech – dangers that would
normally inspire government intervention for the good of society. Instead
there appears to be a silent agreement – Internet companies will gradually
undertake extra policing activities and, in return, they will be left free
to slowly dismantle the openness that is at the heart of its value for
democratic society.

Deutsche Telekom moves against Apple, Google and net neutrality (7.04.2010),,5439525,00.html

Virgin Media to trial filesharing monitoring system (26.11.2010)

EDRi-gram: E-Commerce directive: ensure freedom of expression and due
process of law (17.11.2010)

EDRi-gram: EDRi and EuroISPA attack EC’s demands for notice and takedown

(Contribution by Joe McNamee – EDRi)