[...]the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business.
We’re the post office, they tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content.
Rebecca MacKinnon today released her prepared Congressional testimony on the effects of Chinese net-blocking - I recommend reading the whole thing, but as the British Phonographic Industry took Bono up on his challenge, and wrote internet blocking by BPI fiat into the UK Digital Economy Bill, I thought I'd look at the parallels. A previous draft of the Bill compared poorly to Magna Carta; how does it line up against Chinese practice?
Filtering or “blocking:” This is the original and best understood form of Internet censorship. Internet users on a particular network are blocked from accessing specific websites. The technical term for this kind of censorship is “filtering.” Some congressional proceedings and legislation have also referred to this kind of censorship as “Internet jamming.” Filtering can range in scope from a home network, a school network, university network, corporate network, the entire service of a particular commercial Internet Service Provider (ISP), or all Internet connections within a specific country. It is called “filtering” because a network administrator uses special software or hardware to block access to specified web pages by banning access to certain designated domain names, Internet addresses, or any page containing specified keywords or phrases.
Digital Economy Bill, Clause 18:
18 Preventing access to specified online locations for the prevention of online copyright infringement
In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—
“97B Preventing access to specified online locations for the prevention of online copyright infringement
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.[...]
the Court shall order the service provider to pay the copyright owner’s costs of the application unless there were exceptional circumstances justifying the service provider’s failure to prevent access despite notification by the copyright owner.
Note the insidious allocation of costs there, which is designed to ensure that ISPs block access or remove content on accusation, before an injunction is applied for. Here's Rebecca again on how this works in practice in China:
Deletion and removal of content: Filtering is the primary means of censoring content over which the Chinese government has no jurisdiction. When it comes to websites and Internet services over which Chinese authorities do have legal jurisdiction – usually because at least some of the company’s operations and computer servers are located in-country – why merely block or filter content when you can delete it from the Internet entirely? In Anglo-European legal parlance, the legal mechanism used to implement such a system is called “intermediary liability.” The Chinese government calls it “self-discipline,” but it amounts to the same thing, and it is precisely the legal mechanism through which Google’s Chinese search engine, Google.cn, was required to censor its search results.[7]
All Internet companies operating within Chinese jurisdiction – domestic or foreign – are held liable for everything appearing on their search engines, blogging platforms, and social networking services. They are also legally responsible for everything their users discuss or organize through chat clients and messaging services. In this way, much of the censorship and surveillance work is delegated and outsourced by the government to the private sector – who, if they fail to censor and monitor their users to the government’s satisfaction, will lose their business license and be forced to shut down. It is also the mechanism through which China-based companies must monitor and censor the conversations of more than fifty million Chinese bloggers. Politically sensitive postings are deleted or blocked from ever being published. Bloggers who get too influential in the wrong ways can have their accounts shut down and their entire blogs erased. That work is done primarily not by “Internet police” but by employees of Internet companies.[8]
The language of clause 18 reflects this implied goal of "self-discipline" too:
(2)(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
[...](4)(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
The Chinese government has also used its control over the domain name system to block dissent. Here's Rebecca's summary again:
Domain name controls: In December, the government-affiliated China Internet Network Information Center (CNNIC) announced that it would no longer allow individuals to register Internet domain names ending in .cn. Only companies or organizations would be able to use the .cn domain.[16] While authorities explained that this measure was aimed at cleaning up pornography, fraud, and spam, a group of Chinese webmasters protested that it also violated individual rights.[17]
Authorities announced that more than 130,000 websites had shut down in the cleanup. In January a Chinese newspaper reported that self-employed individuals and freelancers conducting online business had been badly hurt by the measure.[18] Later in February, CNNIC backtracked somewhat, announcing that individuals will once again be allowed to register .cn domains, but all applicants must appear in person to confirm their registration, show a government ID, and submit a photo of themselves with their application. [19] This eliminates the possibility of anonymous domain name registration under .cn and makes it easier for authorities to warn or intimidate website operators when “objectionable” content appears.
Up to now, the UK registrar has been broadly neutral and independent of the Government, but Clause 19 of the DE Bill grabs new broad powers:
19 Powers in relation to internet domain registries
After section 124N of the Communications Act 2003 insert—
“Powers in relation to internet domain registries
124O Notification of failure in relation to internet domain registry
(1) This section applies where the Secretary of State—
(a) is satisfied that a serious relevant failure in relation to a qualifying internet domain registry is taking place or has taken place, and
(b) wishes to exercise the powers under section 124P or 124R.
(2) The Secretary of State must notify the internet domain registry, specifying the failure and a period during which the registry has the opportunity to make representations to the Secretary of State.
(3) There is a relevant failure in relation to a qualifying internet domain registry if—
(a) the registry, or any of its registrars or end-users, engages in prescribed practices that are unfair or involve the misuse of internet domain names, or
(b) the arrangements made by the registry for dealing with complaints in connection with internet domain names do not comply with prescribed requirements.
(4) A relevant failure is serious, for the purposes of this section, if it has adversely affected or is likely adversely to affect—
(a) the reputation or availability of electronic communications networks or electronic communications services provided in the United Kingdom or a part of the United Kingdom, or
(b) the interests of consumers or members of the public in the United Kingdom or a part of the United Kingdom.
(5) In subsection (3) “prescribed” means prescribed by regulations made by the Secretary of State.
In other words, the Secretary of State gets to decide what counts as misuse, and reputational damage. Clauses 20 and 21 give further powers to take over management of a registry and change it's constitution, again by fiat.
What else does China do? It selectively disconnects people from the net. Here's Rebecca again:
Localized disconnection and restriction: In times of crisis when the government wants to ensure that people cannot use the Internet or mobile phones to organize protests, connections are shut down entirely or heavily restricted in specific locations. There have been anecdotal reports of Internet connections going down or text-messaging services suddenly not working in counties or towns immediately after local disturbances broke out. The most extreme case however is Xinjiang province, a traditionally Muslim region bordering Pakistan, Kazakhstan, and Afghanistan in China’s far Northwest. After ethnic riots took place in July of last year, the Internet was cut off in the entire province for six months, along with most mobile text messaging and international phone service. Nobody in Xinjiang could send e-mail or access any website – domestic or foreign. Businesspeople had to travel to the bordering province of Gansu just to communicate with customers.[20]
Internet access and phone service have now been restored, but with severe limitations on the number of text messages people can send on their mobile phones per day, no access to overseas websites, and even very limited access to domestic Chinese websites. Xinjiang-based Internet users can only access specially watered-down versions of official Chinese news and information sites, with many of the functions such as blogging or comments disabled.[21]
Clause 10 of the Digital Economy Bill makes Localized disconnection and restriction possible through 'technical obligations' imposed on ISPs:
10 Obligations to limit internet access: assessment and preparation
After section 124F of the Communications Act 2003 insert—
“124G Obligations to limit internet access: assessment and preparation
(1) The Secretary of State may direct OFCOM to—
(a) assess whether one or more technical obligations should be imposed on internet service providers;
(b) take steps to prepare for the obligations;
(c) provide a report on the assessment or steps to the Secretary of State.
(2) A “technical obligation”, in relation to an internet service provider, is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet.
(3) A “technical measure” is a measure that—
(a) limits the speed or other capacity of the service provided to a subscriber;
(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;
(c) suspends the service provided to a subscriber; or
(d) limits the service provided to a subscriber in another way.
These clauses are in the Bill as it currently stands. They are not scheduled to be debated properly in the Commons. Harriet Harman, as leader of the Commons gets to decide if they are debated. The Open Rights Group has ways to take action, including writing to Harriet Harman and joining the protests in London on Wednesday 24th March.
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