The Skeptic الشكاك

387 An Impossible Burden

Readers interested in Middle Eastern politics will, I hope, forgive a brief digression into the world of Internet geekiness. This Belgian court’s ruling poses an interesting legal question, one that has some bearing on the laws used to censor the Internet in Middle Eastern countries.

July 23, 2007 (IDG News Service) — A Belgian Internet service provider has appealed a ruling that it must block illegal file-sharing on its network, in a case that tests two European Union directives concerning copyright and the extent of responsibility that ISPs have for transmitted content.

The appeal contests a ruling in June by Belgium’s Court of First Instance against Scarlet Extended SA, an ISP formerly owned by Tiscali SA. Scarlet Extended was ordered to install within six months filtering technology made by software vendor Audible Magic Corp. The company makes software that can identity and block copyright content based on the characteristics of a file, which it calls “digital fingerprints.”

The ruling has brought into focus two EU directives, which EU member states are required to incorporate into their national laws.

While the EU E-Commerce Directive says that ISPs are mere conduits and not liable for monitoring content on their networks, the court disagreed, ruling that filtering is not the same as monitoring.

“It’s a distinction that the judge makes with very little explanation,” said Struan Robertson, senior associate with Pinsent Masons and editor of the legal Web site Out-law.com. The judgment “simply says the mere conduit defense is irrelevant in the circumstances.” [Full article…]

I’ve said it before, and I’ll say it again: To hold ISPs presumptively liable for all content they host or carry would pose a regulatory burden on providers that would drastically reduce and slow the flow of information—if the burden could be carried at all. ISPs are data carriers, akin to telephone companies, and typically serve merely as conduits of information, offering the technical means for users to receive and disseminate information.

Would you fine Vodafone because someone conducted a drug deal using their network? Would you require AT&T or Orange to listen to every telephone call on their networks to make sure nothing illegal was ever discussed?

I can’t see a problem with holding ISPs liable if they’ve been notified that material they host violates copyright, for example, and they refuse to remove it. But ISPs should not be pressed into service to monitor data they carry for illegal content.

It’s not an academic question. Regulations on the Internet promulgated by Iran’s Supreme Council for Cultural Revolution, for example, make ISPs “liable for the content they distribute on the network” then forbid a long list of online activities, including “Publishing material that is against the Constitution or which affects the independence of the nation; Insulting the leader; Insulting religious sanctities, Islamic decrees, values of the Islamic revolution or political ideologies of Imam Khomeini; Material that will agitate national unity and harmony; Causing public pessimism about the legitimacy and efficacy of the Islamic system; Publicizing illegal groups or parties.”

Granted, no such regulations exist in Belgium, and I’m not equating pirated music with speech that “runs contrary to the political ideologies of Imam Khomeini.” The issue in both cases is that the ISP is pressed into service as a censor.

Right. Scheduled programing will now resume. (And thanks to John Palfrey at the Open Net Initiative for flagging this one. Watch ONI’s blog for better commentary on this issue.)

2 Comments »

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1. Don’t tell me you’ve taken a hiatus as soon as I finally got around to adding you on my blogroll!

   Comment by Abu Muqawama — August 2, 2007 #

2. Just a brief hiatus, pops. I spent a few days drinking in New York, then a few days in a little cabin on the ocean in the middle-of-nowhere, Atlantic Canada. Fresh, cool breezes off the Atlantic, smell of pines and woodsmoke, spectacular lightning storms…. The Middle East seems miles away. And it is.

   Thanks for the link! I promise I’ll start blogging again as soon as I’m back in Cairo.

   Comment by The Skeptic — August 7, 2007 #

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