The Rise of Europe’s Private Internet Police

In 2005, Peter Mahnke, a resident of the English town of St. Margaret’s, Middlesex, set up a community website. For the past seven years, he and a handful of local volunteers have been publishing regular updates about local events, parks, new businesses, weather, and train schedules. All G-rated and uncontroversial.

Yet in early March, for reasons that remain unclear, the St. Margaret’s website was blocked throughout Britain on mobile Internet services offered by Orange (a subsidiary of France Telecom) and T-mobile (owned by Deutsche Telecom). The site had fallen victim to a nationwide child-protection system run by the mobile companies themselves. Somehow the system, which activists say is rife with errors, had classified the site as "adult" content, causing it to be blocked on all phones by default.

The accidental censorship of the St. Margaret’s community website highlights a larger reality of the Internet age: The digital networks and platforms we depend upon for all aspects of our lives — including the civic and political — are for the most part designed, owned, operated, and governed by the private sector. Internet and mobile services empower us to organize and communicate in exciting new ways, and indeed have been politically transformative in democracies and dictatorships alike. But the connectivity they provide has also created tough new problems for parents, law enforcement, and anybody wanting to protect their intellectual property. Democratically elected governments face political pressure from a range of vocal and powerful constituencies to take urgent action to protect children, property, and reputations. Increasingly, however, the job of policing the Internet is falling to private intermediaries — companies that are under little or no legal obligation to uphold citizens’ rights. In effect, they end up acting simultaneously as digital police, judge, jury, and executioner.

European governments may not have intended to create a "privatized police state," but that is what digital rights activists in Europe warn is happening, due to growing government pressure on companies to police themselves. As Joe McNamee, director of the Brussels-based nonprofit European Digital Rights Initiative (EDRI), puts it, "We are sleepwalking further and further along a road on which we’ve decided that our right to communication and privacy shall be put in the hands of arbitrary decisions of private companies."

The St. Margaret’s website was one example of many included in a new report by the UK-based advocacy organization Open Rights Group and the London School of Economics’ Media Policy Project about child protection-related censorship carried out by companies running Britain’s major mobile Internet services. Websites censored in the name of protecting British children from "adult" content included "Biased BBC," dedicated to critiquing the national broadcaster, "Shelf Appeal," a website dedicated to products that can be packed on shelves, and "La Quadrature du Net," a French digital rights advocacy group. Carriers lifted the blocks on these websites once activists brought the censorship to their attention, but it remains unclear how these sites made their way onto company blacklists in the first place. Even more troubling, the censorship affected not just users under 18 but also all subscribers. "Phone companies ‘censor’ the mobile Internet by default because they don’t know whether their phones are being given to or used by children and young adults," the report’s authors explain. "A system ostensibly designed to help parents manage their children’s access to the Internet is effectively implementing much broader restrictions on access to information that affect a much wider group of people than intended."

This type of problem is serious enough, in enough countries, to have made its way to the U.N. Human Rights Council. Last year, the U.N. special rapporteur on freedom of expression, Frank La Rue, delivered an official report to the council that not only condemned the censorship and surveillance practices of authoritarian countries, but also warned of dangerous trends in the democratic world that threaten citizen rights to free expression in the Internet age. One of his major concerns is "over-broad private censorship, often without transparency and the due process of the law." He singled out two examples of how governments are, ironically, using law to delegate enforcement responsibilities and functions to the private sector: Britain’s Digital Economy Act, which could potentially disconnect Internet users suspected of illegal downloading, and France’s similar "three strikes" law.

La Rue also expressed concern about the Anti-Counterfeiting Trade Agreement (ACTA), signed by the United States and several dozen trading partners, which seeks to tackle the global problem of counterfeiting, both online and off. One of the many reasons digital rights and free expression advocates oppose ACTA is because of its broad definitions of criminal liability, which could hold private companies legally responsible for what users do or share through their services. This could in turn push private companies to police the Internet in order to avoid prosecution. The same push for private policing of citizens’ digital communications was also a feature of the U.S. House of Representatives’ Stop Online Piracy Act (SOPA), which was killed by a similar grassroots political movement in January.

The first months of 2012 have seen political victories for citizens’ digital rights in Europe as well. A pan-European grassroots movement has successfully pressured several EU member governments to scrap or delay plans to ratify ACTA, causing European Commissioner Neelie Kroes to declare "We are now likely to be in a world without SOPA and without ACTA." In Germany, the Pirate Party, whose platform includes an anti-censorship, anti-surveillance agenda, has been making steady inroads at the level of state parliaments, and is optimistic about gaining national parliamentary seats. Last week, the Netherlands became the first European country and the second country in the world to pass a net neutrality law, which also protects Internet users from disconnection and wiretapping by Internet service providers. As EDRI’s McNamee puts it, a growing number of Europeans are waking up to the notion that "the essence of the Internet is at stake," and with it, citizens’ freedoms both online and off. 

The Internet is a politically contested space. If citizens’ rights are to be robustly defended within it, EDRI’s McNamee argues, "the role of intermediaries" — companies like Orange and T-Mobile and all other providers of broadband and mobile Internet service — "in policing and control and regulation of the online world must be understood," not just by technologists and Internet policy specialists, but by politicians, the press, and the public. Citizens’ rights cannot be protected if their digital activities are governed and policed by opaque and publicly unaccountable corporate mechanisms. Clear limits should be set on how power is exercised in cyberspace by companies as well as governments through the democratic political process and enforced through law.

La Rue, the U.N. special rapporteur, has proposed three core principles upon which those limits should be based: 1) restrictions of citizens’ access to information online should be limited to exceptional circumstances; 2) enforcement mechanisms should be governed by law and a clear legal process; 3) restrictions to the flow of information should take place only under exceptional and limited circumstances prescribed by international human rights law. Many European digital rights groups now use these standards as core elements of their fight. The next step will be for politicians wanting to capitalize on the growing public concern for digital liberties to incorporate La Rue’s principles into their political platforms, then push for laws that will strengthen citizens’ rights in cyberspace — rather than erode them.