Block the block

WHAT?

The European Commission has proposed EU-wide mandatory Internet blocking.

It has made this proposal without paying for any external research. The Commission has not produced any of the statistics provided to it by EU Internet hotlines that would indicate that blocking has any useful purpose.

Asked for the evidence on which the Commission based its proposal, the Commission described current positive trends and explained that “they do give an indication that, to a certain extent and at least partly, this may follow also from action taken, including action to block access to websites in some countries.”

WHEN

The Council of Ministers aims to have finished its first reading ("Common Position") on the dossier in December 2010. Currently, only German, Lithuania and Romania are opposed. However, several more countries are reluctant and/or concerned about the very poor legal drafting of the text that was adopted.

In the Parliament, only a limited and simplistic working document has been produced by the MEP in charge, Roberta Angelilli.

The timetable in the Parliament is:

Presentation of draft report: 10 January Deadline for amendments: 20 January "Orientation vote": 3 February.

The orientation vote will assess where there are clear majorities in the Committee for specific amendments and where further work is needed to find appropriate compromises.

The text adopted by the Council is as follows:

2. Where the removal of web pages containing or disseminating child pornography is not possible within a reasonable time, Member States shall take the necessary measures, including through non-legislative measures, to ensure that the blocking of access to web pages containing or disseminating child pornography is possible towards the Internet users in their territory.

The blocking of access shall be subject to adequate safeguards, in particular to ensure that the blocking, taking into account technical characteristics, is limited to what is necessary, that users are informed of the reasons for the blocking and that content providers, as far as possible, are informed of the possibility of challenging it."

HOW?

The Civil Liberties Committee of the European Parliament will prepare the draft position of the institution, which is subsequently put to a vote of the whole parliament.

While it is possible to have amendments tabled and adopted in the vote of the whole parliament, this is significantly more difficult than achieving an adequate result at the Committee stage.

Therefore, at this stage of the process, all efforts need to be focussed on Members of the Civil Liberties Committee.

Arguments

Countering "it is part of a comprehensive policy"

• Experience from countries that already have blocking is that it is not used as part of a comprehensive package of measures against child abuse sites. It is used instead of a proper package of measures.
• Blocking warns the criminals behind the sites that their activities have been identified. How can there be a comprehensive strategy against the criminals when they are warned in advance by the blocking system?
• The text adopted by the Council demands that the criminals ("content providers") be informed when their sites are blocked. This would only be necessary if there was no criminal investigation which would (obviously?) include the website being taken offline, if it contained illegal information.

Countering "it is better than nothing"

• Is it better than nothing to give criminals advance warning that their activities have been noticed by law enforcement authorities?
• Is it better than nothing to plan for failure in international cooperation to delete the websites, prosecute the criminals and identify the victims?
• Is it better than nothing to give governments the opportunity to make it appear that they are taking action on child abuse when evidence from countries that already undertake blocking is that it is used as a smokescreen rather than as part of a comprehensive strategy.
• Is it better than nothing to outsource the problem to Internet access providers that can only take cosmetic measures?

Countering "this will only be limited to child abuse images"

• The main supporters of blocking in the Council are the countries that have already spread from blocking child abuse images to blocking other content, such blocking which aims at gambling monopolies and the music and film industries.
• The European Commission financially supports the CIRCAMP project, which states on its own website that they over-block content, as a way of coercing web hosting companies into surveillance measures. (see here)

Countering "it is proportionate because it might help"

• The European Commission's own 2007 Impact Assessment on Terrorism opposed blocking because the websites move around too much. The Canadian child abuse hotline observed a child abuse website move 121 times in 48 hours.
• The Commission-funded hotline in the UK (the IWF) reports a massive increase in websites that are effectively outside the scope of blocking - such as those using hacked servers, where the site will be deleted immediately once the owner becomes aware of it.
• All legislation comes with a cost for society - even good and proportionate legislation. The small and decreasing target for blocking must be paid for by mission creep (the inevitable spread of blocking to other policy areas), technology creep (the inevitable use of more and more invasive types of blocking), damage to the EU's reputation for free speech, the cost of the "leaking" of blocking lists and the cost of

Pointing out the Commission's contradictions

• Commissioner Malmström said that only "committed amateurs - can circumvent some of the blocking filters used today". The Commission's DNS servers are based in Luxembourg, so the Commission accidentally circumvents Belgian blocking filters. The Commission also funds the promotion of privacy enhancing technologies (PETs) - many PETs accidentally circumvent blocking filters.

• Commissioner Malmström said that only "committed amateurs - can circumvent some of the blocking filters used today" yet her colleague Commissioner Füle said that "any people in Turkey have circumvented the ban on YouTube," downplaying its significance.

• Commissioner Malmström says that blocking of child abuse images has nothing to do with fundamental rights. However, the 2007 Commission impact assessment on terrorism said that the adoption of blocking measures necessarily implies a restriction of human rights, in particular the freedom of expression.

• The Commission changed the draft Framework Decision in order to permit the use of non-legislative measures for the implementation of blocking. However, not only did the 2007 Commission impact assessment on terrorism say that adoption of blocking measures necessarily implies a restriction of human rights, in particular the freedom of expression and therefore, it can only be imposed by law, the impact assessment of the Directive itself says that "uch measures must indeed be subject to law, or they are illegal.