Content Regulation

Vicki NashOII Internet Leadership Academy

November 2015

Structure of lecture

1. Introductory framing2. Historic examples of content regulation in other

media3. Different types of content regulation• Illegal• Harmful• Copyright4. Practical challenges5. Political challenges6. Broader policy implications

Regulability and Internet exceptionalism

Can or should the Internet be regulated in the same way as other media?

Flickr cc: Alan Levine

Reasons why maybe not?

• Sheer pace of change;• End-to-end principle and

absence of central points of control;

• Jurisdictional sovereignty harder to enforce;

• Zittrain’s ‘generativity’ (2008);

• Ideological assertions of freedom.

John Perry Barlow“A Declaration of the

Independence of Cyberspace”1996

‘Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of

Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no

sovereignty where we gather.’

Flickr CC: Joi Ito

Fundamental Values: Rights of freedom of expression

• Universal Declaration of Human Rights• International Covenant on Civil and Political Rights• European Convention• American Convention• African Charter on Human and People’s Rights• Article 35 Constitution of People’s republic of China• Article 19 Indian Constitution• Article 19 Constitution of Pakistan• Hilary Clinton’s ‘Freedom of Connection

Avoiding naïve determinism

• Increasing Internet penetration and growth in foreign language content has reconfigured access to information for many people, and will continue to do so for many more.

• But freedom of expression is NOT an inevitable outcome of technological innovation.

• Freedom of expression can be eroded unintentionally in pursuit of other goals such as copyright protection or child protection – policy as an ‘ecology of games’.

Free Expression & Connection

Source: Dutton, Dopatka, Hills, Law and Nash 2010.

History of Content Regulation

Internet content regulation has emerged against the

backdrop of similar regulation in other

media.

Early regulation of print

• Catholic Church’s Index librorum prohibitorum listed seditious and immoral texts from 1529 until 1966. Initially limited printing within Catholic nations but stimulated printing in Protestant nations;

• Stationer’s Guild, 1557: no “seditious and heretical books, rhymes and treatises” under Mary’s Royal Charter;

• Droit d’auteur: “a work of creation is intimately linked with its creator. The work cannot be separated from its author, like a child from his father.”

• Statute of Anne, 1710: “for the encouragement of learned men to compose and write useful books” – moved perpetual rights from printers to 14-year terms for authors

Early regulation of telegraph

• Standardising content crossing borders was challenging: led to formation of ITU and first International Telegraph Convention, signed in Paris in 1865.

• Codes and ciphers• Initially restricted but used covertly for stock market and

gambling information• European bans scrapped on founding of ITU, but ongoing

arguments over charging• Use by banks and governments

Content Regulation in other Media

• Radio jamming • Film classification• Television ‘watershed’• Rating of video games• Press regulation and

journalistic codes of conduct

• Censorship of magazines and books.

Types of regulated content• Moral (pornography, child abuse images,

hate speech )• Religious (‘heretical’ texts)• Political (opposition materials, lèse-

majesté)• Cultural (censorship of language and

historical events)• Informational (maps, sensitive military or

infrastructural information, bomb-making)

• Technical (VOIP, circumvention tools)• Personal (self-harm, suicide or anorexia

websites)Flickr CC: the Com Library

Tools and strategies

• Limit production (licensing• Legislate (against production,

sale, purchase...)• Limit access (age limits, walled

gardens)• Block access (confiscation,

refusal of classification, signal jamming, filters)

• Deletion (book-burning, notice and take-down)

• Shape social norms (self-censorship)Flickr CC: lokarta

Modalities of

regulation Internet

Law

Market

Architecture

Norms

Lawrence LessigCode 2.0 (2006)

Flickr CC: Nicola

Filtering & Blocking

• ‘Technologies which provide an automatic means of preventing access to or restricting distribution of particular information’ (McIntyre & Scott 2008, p. 109)

• Features of blocking: automatic & self-enforcing, opaque, reliant on co-operation and responsibility of intermediaries rather than end-user

• Increasing number of countries blocking overseas sites at national borders, or mandating blocking by ISPs

• Rhetoric of purity: ‘Cleanfeed’, ‘filtering’ vs. censorship• Often undertaken without court order or judicial due process.

Who filters? A Meta-analysis of filtering

• Even on a narrow measure, a meta-analysis of surveys of Internet filtering shows that most countries block or filter to some degree.• Countries with high ratings (heaviest filtering) include:

China, Myanmar, Saudi Arabia, South Korea, Sudan, Tunisia, United Arab Emirates, Uzbekistan and Vietnam.

• Countries with medium ratings include: Australia, Bahrain, Egypt, India, Kenya, Malaysia, Russia, Turkey.

• Countries with low ratings include: Azerbaijan, Brazil, Estonia, Italy, Morocco, Singapore, United Kingdom.

Source: Dutton et al 2010

Filtering in Europe

• “any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as pretext for any of these factors.”

• “material which denies, minimises, approves of or justifies crimes of genocide or crimes against humanity”

Flickr CC: Dominique Edte

Council of Europe Cybercrime Treaty

Filtering in the UKCleanFeed and the IWF

• Internet Watch Foundation, a UK charity set up in 1996 creates and maintains a list of banned sites.• Original remit was child abuse images• Also now covers criminally obscene content, incitement to racial

hatred• Action fed by hotlines, not by courts• Implemented via ISPs using a system called ‘CleanFeed’ developed by

BT.• Issue notice-and take down requests for content hosted in UK, and

send to international partners for content hosted elsewhere.• Since 2014, major UK ISPs using Cleanfeed have also been

required to block access to 93 copyright-infringing websites.

Tackling child abuse images across the EU

• Finland, Sweden, Norway, Denmark, UK, Italy all have self or co-regulatory systems to prevent access to child abuse images online.

• CIRCAMP – EU-level blocklist used by European ISPs.• France: revisions to 2011 LOPPSI Act allows police cybercrime

unit to force ISPs to block sites within 24 hours, without court order.

• German attempt to introduce mandatory blocking by ISPs was formally adopted in 2009 but preferred strategy is removal rather than blocking.

• Voluntary efforts by major companies such as uptake of Microsoft’s PhotoDNA by Google, Facebook, Twitter.

Blocking of Nazi memorabilia in France

• Jewish students brought court action against Yahoo in 2000.

• French court ordered Yahoo to clock sale of Nazi items to French users.

• Lost consequent appeal, and block still stands.

• One of first cases to demonstrate practicability of legal ‘zoning’ or balkanisation of Internet content.Flickr CC: ~lzee~bleu~not~really~all~here

Illegal vs. harmful

• Child abuse images and hate speech are illegal content.

• More EU consensus around child abuse images.

• What about material that’s legal for adults but deemed harmful for children?

• What about material that is morally unpleasant?

• Who decides?

Flickr CC: Tambako the jaguar

Active Choice Home Filters

• 2013: 4 largest UK ISPs agreed to provide unavoidable choice parental control filters.

• Operate at household rather than device level.

• Block adult pornography and other adult subjects by default.

• Response from parents underwhelming.

• Remaining concerns about over-blocking and lack of granularity.

Flickr CC: Cristina Ivan

Copyrighted materials ©

2. Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works;(b) for performers, of fixations of their performances;(c) for phonogram producers, of their phonograms;(d) for the producers of the first fixations of films, in respect of

the original and copies of their films;(e) for broadcasting organisations, of fixations of their

broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and

related rights in the information society

Lobbying & copyright

• Copyright laws are subject to extraordinary amount of lobbying given extent of economic interests involved.

• E.g. Mickey Mouse debuted in 1928, and copyright would have expired 2003 but US Congress passed Copyright Term Extension Act in 1998 postponing until 2023.

• Peter Pan will indeed never grow old, with perpetual rights granted in UK to GOS Hospital.

Digital Rights Management

• Just as automated content filters are used to control what content we access, so copyright can be protected via technical measures.

• Wide range of technologies that allow publishers to control the use of digital media, including encryption and watermarking.

• Restricts reproduction, but also viewing, printing, clipboard functions etc

• Present in Windows Media Player, Adobe e-books, RealPlayer, iTunes etc.

• But, not foolproof – watermarks can be removed, files must be decrypted to run…

• ‘Break Once, Play Anywhere’.

Legislative responses

• WIPO 1996 treaties

• European Union Copyright Directive 2001

• 6.1: “Member States shall provide adequate legal protection against the circumvention of any effective technological measures”

• 6.2: bans “manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services”

• Purpose is irrelevant• Finland, France, UK 2 years prison; Portugal 3 years; France 150,000€ fine• Only Germany, Denmark, Finland and UK have research exemptions

• HADOPI, Digital Economy Act – “three strikes” aka “graduated response”• Latter require ISPs to police and enforce.

Problems with blocking

• How do you restrict access to content hosted in other countries? Filter based on IP addresses, redirect DNS queries, use proxies with blocking lists and/or keyword filters.

• Problems of unavoidable over or under-blocking.• Blocking is only a temporary measure, and does not remove

the source material.• Blocking can deflect law-enforcement efforts from prevention

and detection.• How do you block access to non-WWW content?• Content increasingly flows directly between peers, over

encrypted connections or via the Dark Net.

Control and resistance

‘The Net interprets censorship as damage and routes around it’

(John Gilmore, Time, 1993)

Flickr CC: Jon Sullivan

Private sheriffs

Flickr CC: Jon Sullivan

Flickr CC: clement127

…meaning ‘regulation of the Internet by people

and institutions bearing no badges or

government affiliation’.(Zittrain 2008)

Who makes decisions about content? Who should?

• States?• Self-regulatory bodies like IWF?• Supra-national bodies like CIRCAMP or WIPO?• Private Internet intermediaries such as ISPs and

search providers?• Private Internet platforms with clear content rules in

their Terms of Service?• Public institutions like schools and libraries?• Families?

A new battleground for sovereignty?

But just as states are trying to clamp down on copyright infringement, such actions are increasingly being countered by transnational political protest and activism, e.g.

• The rise of the Pirate Party• The persistence and huge

popularity of P2P sites like Kickass and the Pirate Bay

States are also dependent on third parties to implement such policies.

“Just as individuals take on multiple and overlapping identities, we find that old meanings of global

actors’ identities and issues are being overlapped with new ones”

(Singh 2013)

Source: xkcd Comic at http:http://xkcd.com/802/

Corporate Responsibility?• Global Network Initiative: “Participating companies will

respect and protect the freedom of expression of their users by seeking to avoid or minimize the impact of government restrictions on freedom of expression”

• Companies may have to set up physical bases in countries with more repressive regimes – staff and resources are then at risk if companies don’t comply with local laws.

Controversial decisions

• Microsoft has followed requests from Chinese government to remove blogs that contain politically controversial content

• Indian and Iranian governments have simply blocked access to controversial blog sites (and the latter “a large number of sites with gay and lesbian content, some politically sensitive sites, women’s rights sites…”)

• Facebook has been criticised for blocking or deleting pages posted by activists using pseudonyms in the current Middle east revolutions.

• Social networks sites criticised for removing harmless content or pictures relating to breastfeeding, breast cancer etc. and also for allowing explicit sexual content.

Broader policy implications?

Broader policy implications?

GENERATIVITY

Flickr CC: Mike Mozart

Broader policy implications?

COLLA

BORATIO

N

Broader policy implications?

CREATIVITY

Discussion• How do we balance the risks and benefits of Internet use in

drawing up regulation?• Can controls on the “chaos and cacophony” of the Internet be

put in place consistent with constitutional protections for freedom of expression?

• How effective are current and future blocking technologies likely to be?

• If content regulation is required is it better imposed by public or private sector? Self-regulation or co-regulation?

• If blocking is required by law, how can accountability and transparency be maximised?

• What does content regulation tell us about the regulability (or otherwise) of the Internet?