During the last year there have been several discussions about filtering content on the internet. Should this be dealt with by the government (creating better legislation) or should ISPs come with a solution?
Last week the WODC (Research and Documentation Centre) published an interesting report (Dutch with English summary) about the technical and legal possibilities of blocking and filtering child pornographic material on the internet. In their research the WODC tried to find an answer to the question: what are the technical posibilities of filtering and blocking content on the internet and what are the legal possibilities?
Currently their is little experience with filtering content in the Netherlands. The KLPD (National Police Services Agency) is maintaining a blacklist which at least one ISP (UPC) is using. One of the conclusions by the WODC is that filter techniques used by the KLPD (filtering based on URL) requires a disproportionately large amount of time resulting in an out-dated blacklist: sites appear on the list when hosted in the Netherlands (and the KLPD can take normal legal actions against those sites), sites are hosted in countries with which the Netherlands has a legal cooperation treaty or sites no longer have illegal material. The list is also not updated frequently enough (once every two-three months).
On top of this the WODC concludes: “No procedures have heen established for the management of the list by the KLPD and no verifiable criteria have been formulated on the basis from which additions to the list are decided“. Which leaves me the question how a site gets listed? Who makes the descission on listing a site? From my experience with the KLPD I know they have enough knowledge to list only sites they are 100% sure the site is illegal (to Dutch law). However, what happens when you are using this list and a legal site appears on the list?
Although several laws provide the legal authorities some power to act against content on the internet (make stored data inaccessible), it is unclear if filtering and blocking fits in all the involved laws. ISPs are not responsible for the data traffic they did not initiate or influence with respect to the content. They have to act in case they have knowlegdge of unlawful material.
Escpecially when freedom of speech is involved, governments must be aware that overblocking (blocking legal content) will occur. If a law will be provided to the government which gives them the authority to block content, the instruments used for blocking must be verified continously to prevent that the blocking is in violiation with the constitution.
Taking a look at the blacklist previously mentioned, the KLPD makes agreements with ISP. The WODC concludes that “the filtering and blocking of internet traffic infringe on the constitutional right of confidential information, as regulated in art. 13 GW and art. 8 EVRM, these require a similar measure for a formal legal basis.“. As a result, the agreements between the KLPD and ISP are therefore not legally valid. “These agreements form therefore an unacceptable thwarting of public law authority and with this public safeguards”.
The report ends with four possible scenarios:
- Leaf filtering to private companies, non-commercial organisations and internet users. There are no legal complications.
- Governments stimulates and facilitates the development of filters without taking executory duties on itself. This gives governments some control.
- The governments take care of the implementation of some of the tasks itself. In a PPC (public-private cooperation) the police provide lists to block wich the market sectors use to develop the filters. Police must be full transparent in the criteria on which the list has been put together.
- Governments make the implementation of filters mandatory based on formal legislation. ISP have to install filters to block content. A variation could be that the government forces certain persons or organisation (public libraries etc.) to take action, without having the authority to filter.
One last conclusion by the researchers is that is unknown how effective filtering and blocking content on the internet really is. This (along with other aspects) must be taken into account when choosing a scenario for the future.
Minister of Justice Hirsch Ballin already said he would stop the current system (KLPD-blacklist). Providers already announced an independent organisation which will create a blacklist. The ECP.NL will take a look at the recommendations made by the WODC to provide a procedure before the end of this year. One of the biggest challenge will be the legal status of the list.