How Liberty was lost on the internet
A recent research project found that even John Stuart Mill's libertarian classic wasn't safe from private internet censors.
‘The time, it is to be hoped, is gone by, when any defence would be necessary of the “liberty of the press”’, wrote John Stuart Mill nearly 150 years ago. But his hopes have not been fulfilled. In the vast digital land of cyberspace, private companies regulate, eliminate and censor what we want to say, publish or communicate.
As part of a recent research project, I posted a section of Mill’s On Liberty on the internet (which is clearly in the public domain), then issued unfounded copyright complaints against it (1). One internet service provider (ISP) removed the chapter almost immediately. This illustrates the problem with self-censorship procedures, which rely on hidden judgements being made by unaccountable bodies.
There is a murky context behind this peculiar form of private censorship. On the internet, millions of websites have been created by individuals who post all kinds of content – and some argue that this justifies the current system of regulation. But there is a mistake in this chain of logic: just because the internet is big, diverse, decentralised and digital it isn’t true that public bodies can’t police it.
Of course, policing would be difficult, but this should not be a reason to be in favour of private governance and regulation. Governments, companies and individuals have taken the easy route to regulation, by relying on ISPs. Everyone who wants to publish, post and propagate content on the internet needs the services of ISPs, which host most of the content available on the worldwide web and are often also hosting providers. This is why ISPs have been identified as the agents in the internet’s communication chain who should be responsible for removing illegal and harmful materials, ranging from copyright infringement to cases of defamation, racist websites and pornographic content.
ISPs have been made responsible for removing illegal and harmful content under so-called notice and takedown procedures, once they have been put on notice by a complainant. Because it comes under the rubric of internet self-regulation, this kind of censorship is seen as less intrusive. But why private governance should be less intrusive than government regulation is something I have never quite understood. State censorship, while clearly problematic, is at least open to questioning and accountability. Notice and takedown is censorship without debate.
The quantity of complaints and websites removed under notice and takedown is unknown, and the process by which ISPs determine whether or not a website contains illegal or harmful content remains obscure. Once an ISP disables access to a website the content disappears from the internet, undoubtedly an effective form of censorship.
My research project attempted to unpick the workings of notice and takedown, using a method termed the ‘mystery shopper’. This consisted of a complaint to an ISP about alleged copyright infringement on a website that actually contained perfectly legal material. One website was set up with one of the most established US ISPs, and another with a major UK-based ISP. The identity of the person who uploaded the site was fictitious.
For symbolic reasons, the material uploaded was chapter two of On Liberty, in which Mill discussed the freedom of the press and the dangers of censorship. This content is clearly in the public domain, because it was published in 1869, and subsequently its posting does not constitute any form of copyright infringement.
The US ISP followed up on the dubious complaint, made on behalf of the chairman of the non-existent John Stuart Mill Heritage Foundation, with detailed questions. But the UK ISP took the site down almost immediately, effectively censoring legal content without investigation.
ISPs are acting as judge, jury and private investigator at the same time. They not only have to make a judgement whether a website is illegal or not – they also have to act as a private detective agency, investigating the accusations and deciding on the merits of the evidence they gather. Nevertheless, when an ISP removes content it invokes the cyber equivalent to the death sentence. When an ISP acts it can effectively destroy a business or censor a political campaign, by making access to that website impossible.
Measured against the potential impact of the actions of an ISP on accessibility of information and on freedom of expression and speech, the legal situation under which ISPs operate notice and takedown should raise concerns. Neither the European Cypercrime Convention nor national laws in the European Union specify in detail the process of notice and takedown, leaving ISPs in an uncertain legal environment.
As a consequence, this has the potential for injustices that would be intolerable in other media. As the Electronic Frontier Foundation, which documents notice and takedown in the USA notes on its chillingeffects.org website, even though the law in the USA seems to be much clearer: ‘Anecdotal evidence suggests that some individuals and corporations are using intellectual property and other laws to silence other online users…and to “chill” legitimate activity.’ (2)
However, the point is not that internet self-regulation is a bad form of regulation in itself. Instead, it is that the power an ISP has over content on the internet necessitates a clarification of the legal and governance framework. There ought to be rules about process. In other areas of governance it matters who governs and under what terms – this is also the case in borderless cyberspace.
Just because it is difficult to regulate the internet, this is no reason to resort to badly crafted forms of regulation, which move the entire burden on to unaccountable actors. Drink driving is also difficult to police, but we wouldn’t shift responsibility for this on to private companies, would we?
Christian Ahlert is internet projects officer at the Oxford Internet Institute. For his publications see www.ahlert.org.
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