Freedom of the internet, our new challenge
OSCE, May 2002
New medium, same old problems - plus a few new ones
The internet is a medium unlike any other. While it embodies aspects
of different more old-fashioned media, it not only combines them but
also adds features, inherent to its digital nature. E-mail for
instance can be compared with postal mail, but has the capacity to
send carbon copies of letters to many people at once, and the added
bonuses of (almost) instantaneous delivery and of mail programs
automatically archiving all correspondence, making it searchable on
top. Internet Relay Chats (IRC), I Seek You (ICQ) and other
protocols for chat boxes on the other hand are more
comparable to telephones: they allow a realtime conversation with a
person or a group and can log that conversation for private perusal.
Usenet - the collective newsgroups - resembles a huge
public bulletin board, subdivided by subject, where people can post
messages which are accessible to everyone, but it is also archived,
meaning that the discussions are automatically stored for future
The world wide web (WWW) is best compared to the printed
press and the broadcasting media. One person or group is usually
responsible for the published content. But unlike the traditional
media, web sites are accessible from all over the world, can be
browsed by anybody on the planet, and they are usually free.
Publishing on the web is not only quicker and cheaper than via
traditional printing and broadcasting; it can at any level combine
texts with moving images and sound. And while some subjects never
get covered by the traditional media - because the designated
audience is too small or the material is too vast to be incorporated
in an article or a book - the net offers plenty of (cheap) space
and web site owners often excel in providing niche information. The
information on these myriad web sites is divulged via search engines
which, through the creation of huge indices, guarantee that
everything becomes retrievable and accessible. The most localised,
obscure or specific information is suddenly available to everyone,
These shared and new
characteristics have brought all known problems pertaining to old
technologies into the net, and a few new ones, too. Government
censorship and the classical inaccessibility of information to the
poorest masses are there, but now we have also the novelty of
censorship performed by companies and of violation of privacy by
governments on a scale that was previously unheard of and would have
been impossible - if only for practical reasons - in the
classical communication media.
Filtering as a means to censorship
A measure that many censor-minded countries deploy, is the use of
restrictive proxies. A proxy is basically a web server at the
Internet Service Provider (ISP) level that fetches all pages
requested by the users for them. By keeping local copies of pages
that are visited frequently, the proxy is able to serve them faster
and with less long-distance traffic. But proxies can also be used to
block user requests for sites, based on an automatic check on
their name, location and/or content. These restrictive proxies
prevent internet users from visiting forbidden sites and, in some
instances, are even equipped with a tool that warns the police that
someone has tried to access banned material. Singapore uses
nationwide proxies in order to prevent access to certain web sites,
mostly those discussing religion or politics or depicting sex.
This government-imposed ban is not completely efficient: with some
technical knowledge, the mandatory proxy can be circumvented.
Dubai on the other hand uses a
very strict proxy, imposed upon the country in the beginning of
1997. Whenever a net user attempts to visit a site that the
government has ruled out, he gets the following message on his
screen: "Emirates Internet Control List: access to this site is
This nationwide proxy disallows Dubai citizens from
visiting most newsgroups and blocks "selected sites on the
Internet which negate local moral values".
The only sure way
to circumvent such a proxy, is by dialingup to a provider in a
different country, which often is not a viable recourse.
Basically, via such a proxy all international traffic can be
monitored, thwarted and or registered. To some degree, the practice
is similar to a government blocking the reception of BBC world. But
a restrictive proxy is much more effective and encompassing: in
comparison to analogue communications, you could say that apart from
blocking foreign radio stations, it also controls all import of
books, all postal mail and all foreign press simultaneously.
It is not only dubious democracies that restrain the use of the net.
Australia does the same, although to a much lesser degree. Citizens
can report pages that they deem to be containing 'explicit nudity'
or to be in 'poor taste' to a government authority, which then
investigates the page and can order all national ISPs to block
access to that particular page via their proxies. Electronic
Frontier Australia (EFA), a group that protects and promotes online
civil liberties, has complained about the poor accountability of
said government authority regarding the handling of such complaints.
The United States of America have previously tried to do
something similar via their 1995 Communications Decency Act,
which prohibited the publishing of "obscene, lewd, lascivious,
filthy, or indecent" material on the internet. Fortunately, in
1997 the Supreme Court ruled the CDA to be unconstitutional.
Germany has tried to block specific material from their citizens as
well. In 1995, the magazine Radikal was put online in the
Netherlands after it got banned in Germany.
In 1996 and 1997, the German
government forced German providers to block all pages hosted
by that particular Dutch ISP, XS4all, thereby making thousands and
thousands of undISPuted pages of XS4all's other users inaccessible
as well. Because mirrors of the dISPuted pages sprang up everywhere,
the blockade turned out to be futile and was cancelled after a month
in both instances.
New attempts at filtering information keep being made. In the USA,
publicly funded schools and libraries were at one point obliged to
use rating and filtering systems that block content based on sexual
content and/or graphical depicting of violence. Many people argued
that these filtering systems curtail free speech and block many more
pages than they promise to do,
and a Virginia library taking precisely that stance successfully
fought the Child Online Protection Act (COPA) in court.
However, recently a new bill was passed in the usa, again imposing
mandatory filtering on schools and libraries that get public funds.
This bill is currently being fought too, this time by the ACLU, the
American Civil Liberties Union.
Undoubtedly, if the ACLU wins, the US Congress will come up with yet
another filtering bill.
Since most Eastern-European governments are not yet very familiar
with the internet - and since curtailing societies tend to be more
aware of and monitor middle-tech communication more effectively than
either the high-tech or the low-tech variants, there have been some
instances of internet being used as a excellent device to circumvent
government censorship. A famous example is B92, the independent
Belgrade radio station that was forced off the air in 1999. The
Dutch ISP XS4all used a direct cable connection between Belgrade and
Amsterdam, inviting people in Belgrade to upload their audio files
over the Internet and broadcasting them from Amsterdam over the net
in a realtime format that could be listened to or stored. In turn,
many Serbs - especially those working at universities and
international companies - captured and copied what they heard over
the net and distributed these radio programmes via audio cassettes,
thus spreading the high-tech internet broadcasts via low-tech means.
There wasn't much that the Milosevic government could do: since
B92 digitally broadcasted from the Netherlands, B92 could not be
stopped at the source and Yugoslavia lacked the infrastructure to
impose proxies upon its citizens.
Whose constitution, whose jurisdiction?
Looking at laws being passed and jurisprudence and practice
developing in Western European countries, one can attempt to foresee
the future of freedom on the internet. At this moment, the future
doesn't look too bright. While once the internet was regarded as a
way to route around censorship, by now, censoring and monitoring
authorities are using the net to route around national borders.
For one, we have Echelon: the joint USA/Canada/UK/Australia/New
Zealand venture that monitors all digital communications passing the
Atlantic, be it via fax, telephone or e-mail. The countries involved
have long denied the existence of Echelon, but by now the European
Assembly has investigated the rumours and has established its
existence. Interestingly, the main complaint of the European
Assembly is that the US, through Echelon, could be engaging itself
in industrial espionage and thus gain an economic advantage over
European companies. The European Assembly hardly complained about
the monitoring of European citizens as such.
And what is the use of having a constitution safeguarding your right
to private communications when it is another government preying
on you? Then there is Carnivore: a US based system that intercepts
e-mail and checks it automatically for words and terms deemed to be
related to terrorism. Nobody knows the scope of Carnivore interceptions,
nor is the list of 'dangerous' terms public. The only thing known about
Carnivore is its unprecedented and massive capacity to monitor and store
Secondly, various states have tried to curtail citizens' access to
foreign sites because they clash with their national laws, even while
those sites are perfectly legal in their country of publication. In
France, a group of antiracism activists started a lawsuit against
the US provider Yahoo for auctioning Nazi memorabilia on its pages.
Yahoo got sued in France for what was perfectly legal within US law
and for pages that they served from the US. Nevertheless, Yahoo lost
the case: judge Jean-Jacques Gomez, in an appeal ruling issued in
November 2000, re-affirmed that Yahoo had to prevent French web surfers
from accessing those pages and basically ordered Yahoo to start
As the UK based organization Internet Freedom wrote about the
case: "If courts deem material on Web sites hosted in other
countries to be unacceptable to their citizens and block them
from viewing it [..] they will have to take into account the mores
and legislation of every country. Any number of filtering regimes
will have to be initiated to enable them to comply with whatever
restrictions and legislation they are faced with. This will make
running what are already complex operations an almost impossible
task. This case sets a precedent in that a court has decided to
apply its national law to a Web site based in another country. The
decision challenges the Net as a universal, borderless medium. It
paves the way for a Net that will be regulated to the lowest common
denominator in order for content providers to avoid the possibility
of legal action. A global communications medium now faces the
distinct possibility of decisions about what can be placed on it
decided by the most reactionary of regimes. Center for Democracy and
Technology analyst Ari Schwartz said: 'If (US Web sites) have to
follow 200 country laws, then (they) would have to follow the one
that allows the least (freedom of) speech. What if Saudi Arabia
said it was concerned about people posting pictures of women with
their heads uncovered?'".
After this appeal ruling, Yahoo wisened up and started procedures
of its own in the US. In November 2001, a US District Court ruled
that the French court order regarding internet content is unenforceable
in the US because it violates the First Amendment's guarantee of free
speech. The court granted broad protection to US web sites engaged in
constitutionally protected activity, but stated that web site operators
may nevertheless for practical reasons decide to comply with conflicting
foreign law requirements. It further stated that only treaties and other
international legal mechanisms lay the ground for the resolution of
conflicts between different legal regimes applicable to the Internet.
But this is precisely what will start happening. The Cybercrime
Convention that came into being in November 2001 - and which has
been signed by, amongst others, the US, Canada, Japan and many
European countries, "formalises the notion of extraterritorial
action by a party in one country objecting to content on a Web site
based in another country. Article 23 of the convention creates
supranational reach for each signatory state. Even if a signatory
state's legal system does not have the procedure to apply a request
made by another signatory, under article 27 this is not seen as
sufficient grounds to refuse that request. The consequence of this
is that signatory states can be forced to act beyond their means and
in contradiction to their own legal system."
Meanwhile, in March 2001 a German court had already announced that
it would not prosecute Yahoo over a similar complaint filed
against it in that country. However, that was not because Germany
respects the fact that it has no jurisdiction over foreign sites; the
court merely reasoned that "while Germany has some of the strongest
laws against hate literature in the world, the German court reportedly
recognized Yahoo! as an Internet service provider and, as such, [it]
ruled [that] the company should not be held liable for the content
of its auction Web sites."
This policy of the courts does not necessarily match that of the
country or its federal states, and - as we just saw - the new Cybercrime
Conventtion does allow for different local laws being applied
on web pages.
And indeed, in March 2002, the German federal state of Nordrein-Westfalen
decided that two right wing extremist sites hosted in the United States -
www.stormfront.org and - www.nazi-lauck-nsdapao.com - must be blocked,
and ordered some 80 ISPs and universities to block access to those sites.
Many computer literate people in Germany fear that this censorship will
not stop there:
"Fighting right wing extremist ideologies reaches a broad
consensus in Germany; however in this case it is used to gain acceptance
for the establishment of a nationwide centralized filtering and blocking
system," wrote a protesting committee. "Future plans contain
blocking of content to protect minors, copyrights and consumer rights,
including search engines that fail accordance with corresponding national
guidelines and laws. Together with corporate partners, Northrhine-Westfalia
administration is developing a high capacity filtering system that is
currently tested at the university of Dortmund. Intention is to create an
architecture with centrally controlled blocking mechanisms that should be
installed on gateway machines to the 'foreign internet'."
The main questions are however not dealt with by filtering. Why should
people be prevented from seeing sites like this in the first place? Will
racism stop simply because you cannot read hate sites? Is it better to
block such sites than to argue their content?
Legal sites and economic profit
While individual internet users are starting to suffer from countries
trying to impose their national laws upon one another, a new problem
has arisen: upstream providers pulling the plug on ISPs because of
legal but disputed material.
All ISPs have an upstream provider, who sells them bandwidth.
Companies which provide co-location - either in the form of rented web
space or in the form of web servers located there - have upstream
providers, too. And upstream providers often have their own upstream
providers. Currently, at the top of the chain there is only a
handful of US backbone providers, plus one or two single players.
Flashback was both a magazine and a small provider in Sweden. The
magazine was known for its freespeech stance. Flashback started its
provider services in 1996, just before the big internet craze hit
the country. Users got both free web space and a free e-mail address
after subscribing to the magazine. Among the more than 50.000 sites
hosted on Flashback was one containing Nazi propaganda, carefully
phrased so as to not violate Swedish law. That particular page was
nevertheless reported to the prosecutor, who after investigation
decided that it was indeed well within the boundaries of Swedish
law. There simply was no case against Flashback, nor against that
In the course of 2000, Björn Fries - an alderman of the
Swedish city Karlskrona, and a prominent anti-nazi fighter - started
a campaign against Flashback because of this right-wing user page.
Flashback insisted on its free speech policy and refused to remove
pages that had already been deemed legal. Fries then turned to
Flashback's upstream provider, Air2Net, which in turn was a
subsidiary of the us company MCI/Worldcom. Fries managed to rally
other downstream providers of both Air2Net and MCI/Worldcom against
those pages. Fearing a commercial setback, MCI/Worldcom decided that
Flashback had either to pull those pages, or they would pull the
plug on both Flashback and on Air2Net, which of course vastly
increased the pressure on Flashback. Flashback however kept its
stance and was then disconnected: thousands of users suddenly lost
their homepages and their e-mail account, simply because a US
company didn't want to lose customers over a disputed but legal
Flashback tried several other upstream providers, but as it turned
out, all of them were dependant upon MCI/Worldcom.
In a case like this, what does your constitutional right to not
be censored entail? European national laws allow people their day in
court: every citizen is given the opportunity to put his publication
before a judge and let the court decide. But here, no court was
invoked; actually, the prosecutor had stated that these pages were
provocative but solidly within legal limits. It was a US based
multinational who decided what you can publish in Sweden and what
Something similar happened in The Netherlands. Xtended Internet,
a small Dutch provider, hosts a web site which is under attack by
At the end of 2001, Xtended Internet's upstream provider, Cignal,
received a complaint about that web site. It was from Scientology,
claiming copyright infringement on www.xenu.net's pages. Xtended
Internet and the maintainer of www.xenu.net refuted the complaint,
but despite that, Xtdended Internet was notified that Cignal's own
upstream provider, the US based company Priority Telecom, had booted
Xtended Internet. Again, a whole provider went down over a page that
appeared to be perfectly legal.
As Paul Wouters of Xtended Internet put it: "We were
disconnected even after proving that disconnecting or censoring our
customer would violate Dutch case law. We voluntarily agreed to
follow the DMCA,
so as to make it easier for Cignal to get out of this conflict, even
though US law, and thus the DMCA, didn't apply to us. Yet, Cignal
choose the easy way out. Obviously we were not worth the money that
Scientology's lawyers could cost them. And maybe that is what
frightens me most. Not that they don't care about freedom of speech
issues, but that they have censored us solely based on commercial
reasons. Censorship has become a profitable business and the freedoms
that are granted to us by the Dutch constitution are revoked at the
stroke of a pen by American corporate lawyers."
Old media versus new media
In Italy, a remarkable fight developed between 'traditional'
journalists and internet journalism. Shortly after World War II, in
1948, Italy introduced a national law on the press. According to that
law, all published periodicals have to give to the Tribunal (the
local district court) the name of an 'responsible director', who in
turn has to be member of the National Order of Journalists. Registration
costs about 200 dollars. Additionally, all periodicals are obliged to
print the name and address of their editor and printer.
The National Order of Journalists - which poses quite a powerful
body in Italy - was rather suspicious of internet journalism
developing, and undertook a lobby for internet publications to be
brought under the scope of the existing law. The new law was
adopted in April 2001. The NJO lobby forced big portals (such as
Kataweb-Repubblica, Rai.it, Supereva, etc) to recognize the digital
"journalist profession" and, subsequently, to financially
compensate hundreds of people who work as their colleagues, but with
What started as an attempt to extend state subsidies to internet
media, basically brought those publications under the 1948 press law.
And the new law itself is, as Interlex - an Italian web magazine about
law, technology and information - put it, "confused and confusing
[..] the law is shameful, its rules absurd". A strict interpretation
of the law defines "every Italian web site geared to transmit
information towards the public" as an "editorial product"
and subjects it to the regulations of the law.
And more fundamentally, the law is impossible to live up to, due to
technical flaws, amongst others the obligation to state the name and
address of the printer, while there are no printers on the net
and people usually do not know on which server their pages are hosted,
least of all where that server is physically. Additionally, the law
claims jurisdiction over internet publications that are hosted on foreign
While it seems unlikely that web sites that are not producing regular
news and information will be forced to register, it is highly possible
that web sites like Indymedia will, and will have to give the name of a
'responsible director' and a 'printer'. Many people fear that this law
will indeed be used to weed out publications that do stand outside the
currently accepted frame.
Turkey is currently debating a similar law.
Spain is on the verge of approving one too, in May 2002. The bill for
the "Law of Information Society Services and Electronic Commerce"
(Ley de Servicios de la Sociedad de la Informacion y de Comercio
Electronico, known by its Spanish acronym LSSI) plans to force
web sites to register with the government and require web hosting
companies to police content by reporting suspected illicit activity.
Apart from that, the upcoming law will allow a "competent
administrative authority" in government to shut down web sites
unilaterally; a power that now requires court approval. In Spain,
only a judge can ban printed press editions from the news stands,
but under the LSSI, an official could 'provisionally' ban the
edition of an online publication if it "outrages or could
outrage" values protected by the law, while the paper version of
the same publication still enjoys constitutional protection.
If any such measures would be imposed on other media, people would
be outraged. With the net, these kind of measures are often accepted
without questioning. Civil liberties organisations fear that limiting
internet publication freedoms is only a first step towards curtailing
other media; after all, once a measure is accepted in one area, it is
difficult to stop it in another.
Seeing the amount of effort that Western countries are taking to
filter content on the web, it is only a matter of time before other
countries catch up. What we are seeing meanwhile is that more and more
countries put internet publications and private communications under
greater scrutiny, and pass laws that restrict digital publications more
than analogue ones - in part, because they fear the anarchy that the
net once was, and in part, because it suddenly has become technologically
feasible to do so.
Networked computers allow for novel uses, unthinkable of in the
analogue world. They can be used to circumvent censorship and monitoring.
But the internet can also be used to scrutinise publications and
communication to a degree that goes way beyond Orwell's wildest
Karin Spaink & Christiane Hardy
For the OSCE (the Organization for Security and CoOperation in Europe)
Section FOM (Freedom of the Media)
"First, materials going into the home are more heavily censored
than those going into the corporate world. [..] Information for the
home is seen to be of a less critical nature so censorship of such
information is regarded to have not as deleterious an effect. Second,
materials for the young are more heavily censored than those for
adults. This is an admittedly paternalistic principle of protecting
the weaker members of society from the possible harm of the materials
in question. [..] Third, materials for public consumption are more
heavily censored than those for private consumption. This is a corollary
of the second principle as it is assumed that the public includes those
who are "weaker." [..] It should be noted that private
consumption of censorship materials is still policed in that those found
in private possession of censored materials can be convicted in court.
Finally, materials deemed to have artistic and educational merit are
less heavily censored." See Dr. Peng Hwa Ang and Ms. Berlinda
Nadarajan, Censorship and Internet: a Singapore Perspective,
See Defeating Singapore Internet Censorship - How to,
See George d'Arnaud, Internetbeperkingen in Dubai, November 10
1997, in the newsgroup xsS4all.general, message-ID
<email@example.com>. The ensuing discussion proved
that it was rather difficult - and took quite some technical knowledge
- to circumvent this national censorship rule.
Quote from "New service to censor Internet", The Gulf
Today, January 25 1997.
Electronic Frontiers Australia Inc., Media Release of September 7 2000:
Government Net Censorship Reports - Facts or Fallacies?,
The full text of the CDA is at
Amongst others, the CDA limited access to the King James bible,
Tarantino film scripts, lyrics by many pop groups, information about
safe sex and breast cancer, and pictures of Michelangelo's David. The
Supreme Court's ruling warned about the CDA's "obvious chilling
effect on free speech [..] [I]t unquestionably silences some speakers
whose messages would be entitled to constitutional protection."
The full ruling is at http://www2.epic.org/cda/cda_decision.html.
Radikal was put online at http://www.XS4all.nl/~tank/radikal/. The index page
also contains a brief history of the German efforts to censor these
pages. Unfortunately, many links to press releases and newspaper
articles do no longer work.
For an overview of the debate regarding mandatory filtering systems,
see the compilation provided by the Massachusetts Institute of Technology,
and the news and resources provided by the Internet Free Expression
Alliance (IFEA) at http://www.ifea.net.
See Mainstream Loudoun v. Board of Trustees of the Loudoun County
Library, November 23, 1998, available at http://www.techlawjournal.com/courts/loudon/81123op.htm.
The COPA is currently being brought to the Supreme Court by the
ACLU, on the grounds that it is against the US First Amendment. See
US Congress passed the Children's Internet Protection Act on
December 15, 2000. The full text of the act is at
Complaint filed in Philadelphia, March 20 2001.
European Parliament resolution on the existence of a global system
for the interception of private and commercial communications (ECHELON
interception system), (2001/2098(INI)), released on June 9 2001.
The full text is at
For a concise article about the case, see "Court to Yahoo: Use
Nazi Filter" in Wired, November 20, 2000, at
Dave Amis: "The Net now has a national court: this month it's
French!", in Internet Freedom, January 9 2001, at
A summary of the ruling can be found at
Dave Amis, op. cit.
Jay Lyman, "German Court Rules Yahoo! Not Liable For Nazi
Auctions", in NewsFactor Network, March 28 2002, at
The Cybercrime Convention (Draft convention on cybercrime and
explanatory memorandum related thereto) as accepted by the
Council of Europe can be found at
Comments and criticisms are, amongst others, at
Joint press release from the Chaos Computer Club and ODEM.org, at
For more information, see also
http://www.netzzensur.de/index_en.html and Alexander
J. Kleinjung, "Vom DatenHighway auf die Straße", in
the German edition of C'T, 2002/9.
is currently up again, but now only as a news agency. A list of news
articles about its shutdown is available through Flashback's mirror
While Scientology has repeatedly threatened Andreas Heldal-Lund,
the owner of the web site, they have at the same time abstained from
undertaking any legal action against him. Instead, Scientology chooses
to threaten providers hosting the site, and their upstream providers.
The history of Xtended Internet's contracts and correspondence with
Cygnal is documented at http://www.xtdnet.nl/paul/PriorityTelecom-Xenu.html.
The DMCA is a US law that deals with digital copyright infringement.
Scientology invoked this US law, even while Xtdended Internet is
Dutch and the maintainer of ww.xenu.net is Norwegian. Hence, the
DMCA doesn't even apply in this case.
Paul Wouters, at http://www.xtdnet.nl/paul/PriorityTelecomXenu.html.
See the description by Snafu on
Manlio Cammarata, "Qui succede un 'quarantotto'", Interlex,
April 4 2001, at http://www.interlex.it/stampa/48.htm.
Julia Scheeres, "Fears of a Website Inquisition", in
Wired, May 29 2001, at
Steve Kettmann, "Spanish Web Law Sparks Debate", in
Wired, May 1 2002, at
Copyright Karin Spaink.
This text is offered for private use only. Any
other use requires the author's written permission.