[IRP] Blocking and filtering text

Wed Nov 10 17:21:05 EET 2010

Thank you Tapani, I really appreciate your comments and I think they will make the Charter much stronger. They are very useful for me personally as they answer a few points I was having difficulty with.

>From my current understanding what we are moving towards is this: NB I'm not proposing this wording, just trying to outline everything that needs to be included:

        All mandatory filtering and blocking is in breach of Article 19. Filtering and blocking must not be used to tackle expression which is illegal under International law. [Such expression        shall be addressed using E.g. takedown of material, prosecutions etc. - do we want to specify?]

        All voluntary filtering and blocking is also in breach of Article 19, with two exceptions:

        1. Where filtering and blocking is governed by technical rules (rather than message contents) and is aimed at providing a service (for example preventing spam, viruses and malware) it is      not a violation of Article 19, provided it is voluntary, and users are allowed to bypass such blocks and filters.

        2. Voluntary filters and blocking which are used by end users. [Shall we add in language about this being specifically encouraged?]

>>- I note in passing that I could accept prior censorship in certain situations, like about reporting troop movements during a war. The key limitation there is that it must be for so short a >>duration that the information being censored can be seen and the justification for its censorship evaluated soon enough afterwards to bring thouse responsible to justice as needed.

Do people think we should include some very narrow exceptions along these lines?

>> For example, we might want to state that organisations like spamhaus should have the right to keep operating, spammers' protests notwithstanding.

We can mention this in Section 2 which is more specific.

For reference, the Council of Europe document Meryem sent round does not only refer to tools provided to users. III ii states: [in this context, member states should:] guarantee that nationwide general blocking or filtering measures are only introduced by the state if the conditions of Article 10, paragraph 2, of the European Convention on Human Rights are fulfilled. Such action by the state should only be taken if the filtering concerns specific and clearly identifiable content, a competent national authority has taken a decision on its illegality and the decision can be reviewed by an independent and impartial tribunal or regulatory body, in accordance with the requirements of Article 6 of the European Convention on Human Rights.

I'm not making that point to say that it is the approach we need to take in the Charter, rather to say that there are different interpretations of the relationship between filtering/blocking FoE and we need to be able show why our approach is convincing.

With regards to freedom from religion, I think we need to be careful with wording here, this is one of the most explosive rights. Are you saying that people have the right to ignore all rules which are based on beliefs? If so, I don't think that's correct, for example, many of our laws in the UK have their roots in Christianity. It shouldn't be that if a rule comes from religion it is invalid, whereas if it doesn't it is valid. The question about whether it a rule is valid law is surely to do with the contents of the rule (and whether the contents is compatible with human rights). Please let me know if I have misunderstood your argument, I feel that I have.

Perhaps a good place to start would be: how is the right to religion (and freedom from religion) applicable on the internet? I think the main issue here is to do with content restrictions. What does anyone else think?

All the best,
Dixie

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Today's Topics:

   1. Blocking and filtering text (Dixie Hawtin)
   2. Re: Blocking and filtering text (Tapani Tarvainen)
   3. Re: Blocking and filtering text (Lee W McKnight)

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Message: 1
Date: Wed, 10 Nov 2010 12:30:50 +0000
From: Dixie Hawtin <Dixie at global-partners.co.uk>
To: "irp at lists.internetrightsandprinciples.org"
        <irp at lists.internetrightsandprinciples.org>
Subject: [IRP] Blocking and filtering text
Message-ID:
        <16BC5877C4C91649AF7A89BF3BCA7AB82C758B5F50 at SERVER01.globalpartners.local>

Content-Type: text/plain; charset="us-ascii"

Hi all,

I just wanted to remind everyone that if you have specific suggestions for more concrete wording of any of the provisions, or specific suggestions for principles that you would like to see in the Charter but which are not currently there, please send them through to the list by Monday.

Tapani, I apologise for the absence of "freedom from religion" in the draft Version 1.1. I had taken on board your earlier comments and inserted it into the text, however it unintentionally got lost in the proliferation of copies I was working on! Thank you for pointing this out and it will be reinserted into the text. The line I used was as follows: "This right also includes the right to freedom from religion and belief". Is that enough do you think?

With regards to the very interesting discussion about filtering and blocking: I fully agree that this was not dealt with well in the version I sent around. It's great that this conversation has started, let's see if we can agree on a new approach and new wording.

What I tried to do was to more stringently define the cases in which filtering and blocking may* (although it seems I may have been wrong about this) be acceptable. I am not a technical expert but is it true that blocking and filtering is always necessarily prior censorship? I thought that if a particular piece of content could legitimately be limited under human rights law, and that the decision to limit the content was made by a court (following all trial requirements) and that the content was only then blocked (and the block only covered that specific piece of content), this would not constitute prior censorship. I know that none of the blocking systems (which I am aware of) follow these requirements, and thus my intention was to make the majority or even all blocking systems illegal on that premise.

If however, as seems to be the case, the general coalition consensus is that blocking and filtering is never legitimate, then this must be changed.

The current thinking on the list seems to be along the lines of:
Filtering and blocking is always in contravention of Article 19 with two limited exceptions:
a) end-user filtering; and
b) filtering and blocking aimed at controlling spam and malware

Does anyone have any suggestions/comments? Please note, I am not suggesting this exact wording, but if anyone does have some exact wording to suggest I would be grateful!

I have a question which might be obvious, but I don't know the answer so if anyone could clear it up for me I would appreciate it - from what I understand the reasons that filtering and blocking are always in contravention of Article 19 are that they cannot be targeted narrowly and they disproportionately undermine the capacity of the internet to support freedom of expression. I understand how end-user filtering is an exception as the intelligence is at the edge of the network, and it doesn't matter if they are not narrowly targeted as the user controls this. However, I am not completely clear on why we think that blocking for spam and malware is a valid exception - does this not also undermine the openness of the internet, and if not why not?

All the best,
Dixie
___________________________________________________________
Dixie Hawtin
Researcher Global Partners and Associates
338 City Road, London, EC1V 2PY, UK
Office: + 44 207 239 8251     Mobile: +44 7769 181 556
dixie at global-partners.co.uk<mailto:lisa at global-partners.co.uk>  www.global-partners.co.uk<http://www.global-partners.co.uk/>

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Message: 2
Date: Wed, 10 Nov 2010 15:44:08 +0200
From: Tapani Tarvainen <tapani.tarvainen at effi.org>
To: irp at lists.internetrightsandprinciples.org
Subject: Re: [IRP] Blocking and filtering text
Message-ID: <20101110134407.GA18343 at hamsu.tarvainen.info>
Content-Type: text/plain; charset=us-ascii

On Wed, Nov 10, 2010 at 12:30:50PM +0000, Dixie Hawtin (Dixie at global-partners.c

> I just wanted to remind everyone that if you have specific
> suggestions for more concrete wording of any of the provisions, or
> specific suggestions for principles that you would like to see in
> the Charter but which are not currently there, please send them
> through to the list by Monday.

As I seem to have scheduled next full night's sleep to mid-December
or so, I've been reading the list somewhat sporadically and may
have missed something - my apologies if I repeat something that's
already been said. But a couple of comments:

> Tapani, I apologise for the absence of "freedom from religion" in
> the draft Version 1.1. I had taken on board your earlier comments and
> inserted it into the text, however it unintentionally got lost in the
> proliferation of copies I was working on! Thank you for pointing this
> out and it will be reinserted into the text. The line I used was as
> follows: "This right also includes the right to freedom from religion
> and belief". Is that enough do you think?

I don't really like that wording. I'd prefer something that makes it
clear that it's not about what one believes or not, but about rules
based on those beliefs, and that this right specifically means that
no-one should be forced to observe rules of religions they don't
believe in.

Good wording needs some thought. I'll try to think of something
before Monday.

> With regards to the very interesting discussion about filtering and
> blocking
[...]
> What I tried to do was to more stringently define the cases in which
> filtering and blocking may* (although it seems I may have been wrong
> about this) be acceptable.

Even the terms are not unambiguous. As I read the draft,
I intepreted them there as implying censorship,
rather than as, say, the Council of Europe documents Meryem
referred to do, as tools provided to users.

> I am not a technical expert but is it true that blocking and
> filtering is always necessarily prior censorship?

That depends on your definition of blocking and filtering.

For example, I have no problem in ISPs filtering viruses and spam *as
a service*; I am not comfortable with it if they wouldn't allow me to
bypass it if I like (I do, I run my own mail server and my own spam
filter), and even less comfortable with the idea of government
mandating it - but even that doesn't count as censorshop *if* the
filtering rules are of technical nature (limiting number of messages
in a timeframe, requiring strict observance of standards &c).

But if the filtering is based on the *content* being transmitted
*and* enforced by the government, then it is censorship.

In particular note that there's no universally agreed-on definition of
spam: what is spam to one recipient may be interesting message to
another. And spam-detection is never foolproof.

> I thought that if a particular piece of content could legitimately
> be limited under human rights law, and that the decision to limit
> the content was made by a court (following all trial requirements)
> and that the content was only then blocked (and the block only
> covered that specific piece of content), this would not constitute
> prior censorship.

If "all trial requirements" include openness, i.e., everybody could
see for themselves (and reporters could report in newspapers) what is
being censored and judge by themselves if the decision is right, sure
- but that'd already mean it's not being censored, wouldn't it?

Or is the idea that accessing the material would be possible
but only by means other than through Internet?
That would again be saying freedom of expression is somehow
less protected than it is elsewhere.

- I note in passing that I could accept prior censorship
in certain situations, like about reporting troop movements
during a war. The key limitation there is that it must be
for so short a duration that the information being censored
can be seen and the justification for its censorship
evaluated soon enough afterwards to bring thouse
responsible to justice as needed.
But I can't see any situation where any material should
be permanently censored from the general public.
(Note: this does not mean publishing anything should
be allowed. People should still be punished for
libel, fraud, spreading private information &c.
But not prevented from doing that by censorship.)

> I know that none of the blocking systems (which I am aware of)
> follow these requirements, and thus my intention was to make the
> majority or even all blocking systems illegal on that premise.

While I appreciate the idea, I don't think it would work,
even if we could agree on the requirements.
Those who want to censor the net just take anything
they can interpret as supporting it and ignore such
requirements as would get in the way.

> The current thinking on the list seems to be along the lines of:
> Filtering and blocking is always in contravention of Article 19 with two limited exceptions:
> a) end-user filtering; and
> b) filtering and blocking aimed at controlling spam and malware

As noted I'm not quite happy even with b), unless it is also
optional to end users (or at very least to ISPs),
but I could accept it if formulated tightly enough.
On the other hand I'd have no problem even actively
promoting filtering tools for end users to use if they like,
so perhaps we could add some such wording?
For example, we might want to state that organisations
like spamhaus should have the right to keep operating,
spammers' protests notwithstanding.

That is, say that blocking and filtering tools and services
should be made available to users but never forced on them.
(Again, precise wording needs some more thought.)

> from what I understand the reasons that filtering and blocking are
> always in contravention of Article 19 are that they cannot be
> targeted narrowly and they disproportionately undermine the capacity
> of the internet to support freedom of expression.

I guess you could say that - although I think that applies to any
permanent censorship outside the Internet as well.

> I am not completely clear on why we think that blocking for spam and
> malware is a valid exception - does this not also undermine the
> openness of the internet, and if not why not?

Two key points (sorry for repeating myself):

(1) Enforcing *technical* standards and other restrictions that are
agnostic on the information content of the messages are not generally
problematic to FoE. This category presently covers most of spam, and
arguably viruses and similar malware, too.

(2) Spam is almost by definition messages people don't *want*:
filtering it becomes a problem only when it's defined in
a way (some) people don't like and they're given no choice.
But spam filtering is (as far as I know everywhere)
ultimately optional to end users (or at least ISPs):
those who really want it can get it.

--
Tapani Tarvainen

------------------------------

Message: 3
Date: Wed, 10 Nov 2010 08:53:15 -0500
From: Lee W McKnight <lmcknigh at syr.edu>
To: Tapani Tarvainen <tapani.tarvainen at effi.org>,
        "irp at lists.internetrightsandprinciples.org"
        <irp at lists.internetrightsandprinciples.org>
Subject: Re: [IRP] Blocking and filtering text
Message-ID:
        <93F4C2F3D19A03439EAC16D47C591DDE0330006DF1 at suex07-mbx-08.ad.syr.edu>
Content-Type: text/plain; charset="us-ascii"

+1 on Tapani's points
________________________________________
From: irp-bounces at lists.internetrightsandprinciples.org [irp-bounces at lists.internetrightsandprinciples.org] On Behalf Of Tapani Tarvainen [tapani.tarvainen at effi.org]
Sent: Wednesday, November 10, 2010 8:44 AM
To: irp at lists.internetrightsandprinciples.org
Subject: Re: [IRP] Blocking and filtering text

On Wed, Nov 10, 2010 at 12:30:50PM +0000, Dixie Hawtin (Dixie at global-partners.c

> I just wanted to remind everyone that if you have specific
> suggestions for more concrete wording of any of the provisions, or
> specific suggestions for principles that you would like to see in
> the Charter but which are not currently there, please send them
> through to the list by Monday.