When I wrote a post about a week and a half ago called “Can Copyright kill the Internet?,” I worried that my title might be considered a little bit extreme. After all, the Internet is a big, sprawling “network of networks;” surely the puny efforts of legal enforcement cannot really do that much harm. In some senses this is true, since it is difficult to apply national laws to the persistently international Internet. On the other hand, as I pointed out in the earlier post, a business wanting to engage in commerce on the Internet has to take account of national laws around the world, and is frequently circumscribed by the most stringent law to be found regarding any particular activity.
But what really convinced me that my earlier post was not exaggerating the threat was this news item from Ars Technica called “‘Net filters “required” for all Australians, no opt-out.” Incredibly, to my mind, at least, Australia is moving ahead with a plan to force Internet Service Providers to impose filters on ALL Internet access in the country to filter out “illegal” content. The government would maintain two “blacklists” of material that must be blocked. Australians who requested “unfiltered” access would not have material on the “additional material” blacklist blocked, but there would be no way to get access to Internet sites that the government deemed illegal and so put on its prinicple list of blocked content.
There are many problems with this plan, but I want to focus on two. First, filters never work. It is usually possible to get access to “bad” content in spite of the filter, and filters almost always filter out useful content as well as the bad stuff. In the case of this plan, the task of updating the blacklist will be monumental, as banned material can switch locations and URLs faster than the content police can keep track. And even when content is blocked, the blocking itself will serve as a challenge to many sophisticated computer users to find a way around the filter and gain access to the site. Digital locks are usually broken in a matter of days, and the unfortunate result of filters has always been that law-abiding users find their choices of legitimate content constricted, while those who want to violate the rules find ways to do so.
The other problem, of course, is deciding what consititutes “illegal” material. Few would dispute the need to reduce the amount of child pornography available on the ‘Net, but there are lots of other categories of sites where there is a legitimate debate. What is defamatory in some countries, for example, is protected as political speech in the United States. Will Australian officials be able to keep criticism of government policies (like this) off of Australian computers by declaring it “illegal” because potentially libelous? What about material that potentially infringes copyright? Will all such material be blocked? And how will that determination be made? Many sites — YouTube is the most obvious example — contain material that is authorized by the rights holder as well as videos that are clearly infringing. Is YouTube a legal or an illegal site?
Ars Technica has followed up its original post with this one noting that the government in Australia is trying to suppress criticism of its plan. This strengthens the fear that the filtering plan might be used to silence opposition, even though there ought to be a clear distinction made between what is illegal and what is merely dissent. The article also notes that the point made above — that filters seem seldom to work very effectively — is being borne out in this instance.
So here is a concrete example of terribly bad policy that really does threaten the existence of the Internet as the revolutionary tool for democratic communication that it ought to be.